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27 Rutgers L. Rev. 275 (1973-1974)
A Definition of Privacy

handle is hein.journals/rutlr27 and id is 283 raw text is: A DEFINITION OF PRIVACY*

The Supreme Court handed down a six-to-three decision in United
States v. White1 on April 19, 1971. In the case, government agents
testified at trial to incriminating conversations between a govern-
ment informant and defendant White which the agents overheard by
monitoring the frequency of a radio transmitter concealed on the in-
formant. The agents acted without a warrant. The Supreme Court,
reversing the court of appeals,2 held that the defendant's fourth amend-
ment rights had not been invaded because his constitutionally justifiable
expectations of privacy had not been violated.' It would probably
surprise most people to learn that the Supreme Court has said that
constitutionally justifiable expectations of privacy do not include the
expectation that our conversations are not being simultaneously trans-
mitted to an unknown audience by the person to whom we are speak-
ing. The decision raises the larger questions: What is privacy? and
Why should privacy be the key term for interpretation of the fourth
The aims of this article are (1) to present and defend a definition
of privacy which explains the close connection privacy has with the
fourth amendment, and with some of the other amendments in the
Bill of Rights; (2) to use the definition to clarify what privacy means in
other legal and non-legal contexts; and, (3) to apply the definition to
United States v. White to illustrate how an abstract definition of privacy
can affect the analysis of a case.
Currently, there is no consensus in the legal and philosophical liter-
* I am indebted to David A. J. Richards, Peter Williams, Kenneth I. Winston,
and especially John B. Moore, for their careful criticisms of earlier versions of this
article. My debt is no less to Jeffrey Blustein, Donald DeSalvo, Joshua Rabinowitz and
John Stevens, as well as to my faculty colleagues at Rutgers Law School, Julius Cohen,
Thomas Cowan and David Haber. The article also benefited from a reading to the
Tuesday Evening Club at Rockefeller University on April 3, 1973.
t B.A. 1962, Haverford College; M.A. 1963, Brown University; Ph.D. 1968,
University of Chicago; J.D. 1971, Harvard University; Assistant Professor, Rutgers
Law School, Newark.
1. 401 U.S. 745 (1971).
2. 405 F.2d 838 (7th Cir. 1969), rev'd, 401 U.S. 745 (1971).
3. 401 U.S. at 752-54.

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