On the Social Construction of Privacy

By Tristan Bridges, The College at Brockport, State University of New York

and Tara Tober, University of Virgina

Drug-sniffing dogs are becoming more and more ubiquitous.  Dogs are often one line of defense against possessing drugs in public.  They help law enforcement identify people with drugs in airports, schools, and other public spaces.  The use of dogs relies on a collective understanding that carrying drugs in public, even if you are discrete about it, should not be allowed.  Various drugs are illegal to use, distribute, and even possess.  Yet, we also know that many people do use, distribute, and carry drugs.  So, the question becomes, when can people reasonably expect privacy from law enforcement?  Or perhaps more appropriately, where?  

Clearly, the airport has become a space in which we can expect less privacy.  Indeed, plane travel in the U.S. is predicated upon individuals giving up privacy we might expect elsewhere: having our belongings scanned and assessed, being “patted down” by strangers, and “proving” our identities with a variety of documentation.

What’s private seems like a simple enough issue.  But upon closer analysis, determining what is and is not private is incredibly complex.  Sociologists would say that virtually nothing is inherently private, nor is anything universally private.  Rather, privacy is, as Christena Nippert-Eng argues, “a condition of relative inaccessibility. A recent decision by the Supreme Court highlights some of the ways in which we can consider the types of social considerations that go into socially defining privacy.

In Florida vs. Jardines, the Court considered whether Joelis Jardines’ rights to privacy had been violated with the use of a trained detection dog—Franky.  Police received an anonymous tip that Jardines was growing marijuana in his home.  Based on this tip, police went to the home with Franky who, after circling for a few minutes, sat down near the front door indicating that he detected marijuana.  Based on the tip and Franky’s assessment of the home, officers obtained a warrant and found that Jardines was indeed growing marijuana.

Jardine’s lawyer asked a simple question: were Joelis Jardines’ rights to privacy violated with this search?  It seems like a simple issue, but it’s related to other concerns relevant for thinking about privacy in contemporary society.

The home is a space in which we expect a reasonable amount of privacy.  Indeed, homes are set up in ways that indicate more and less “private” spaces.  Consider people’s use of front porches.  Sometimes we keep objects on our front porches that we probably wouldn’t leave on our front lawns (bikes, barbeque grills, mats, etc.), with the expectation that others will honor porches as socially off-limits despite the fact that they are more accessible than the home’s interior.  We do this because front porches are considered part of our private property, though most of us would classify them as “less private” than, say, bedrooms.

When we invite people into our homes, we might invite them into the “public” spaces, keeping “private” spaces off limits to visitors.  There are a variety of ways in which this is done.  Closing doors is one way.  Another is architectural: structurally segregating “private” rooms to the sides of the home or the second floor.  A more subtle way is through the use of “half bathrooms” for guests, enabling the bathrooms in which we bathe, keep our medications, and groom ourselves to remain “private,” but not necessarily requiring explanation.

Discussing privacy as a sociological issue necessitates asking where privacy starts, how it is maintained, what counts as invasions of our privacy, and who decides.  Ultimately, the Court ruled in Jardines’ favor: his rights to privacy were violated by the use of a Franky.  Occasionally, detection dogs are brought into schools to sniff for drugs in student lockers.  This is not considered a violation of student’s rights.  Lockers are thought of as “private” (at least, they are thought of as private by students), but with the caveat that some have a right to violate this privacy.  But, homes are clearly different.  Indeed, perhaps nowhere do we consider the right to privacy stronger than in the home.  Yet, Franky wasn’t actually in Jardines’ home; he was outside the front door. 

So, the question is: are the smells emitted by our homes “private” or “public”?  The Court ruled that these smells, in Jardines’ case, were private.  The tip the officers received was deemed insufficient evidence to allow the use of Franky.  In other words, the odor of marijuana that Franky detected was Jardines’ private property.  And it was “private” because only Franky could smell it.

What if the odor from Jardines’ marijuana had been strong enough to be detectable by his neighbors?  The court stated that this would have justified a search of the home.  Thus, if the scent were stronger, detectable by others humans for instance (particularly those not on Jardines’ property), he could not have “reasonably expected” privacy.

The case is also related to questions of what we mean by “rights” to privacy in a modern era when it’s possible to look into our homes in a variety of ways with heat sensors, odor detection technology, and potentially drone technology as well.  That this case was heard by the Supreme Court illustrates that discussions of what is “private” and “public” are intensely controversial issues requiring social decisions.  Laws reveal deep beliefs and values. But, how we value privacy, where we value it, who deserves more or less privacy, and when privacy is “allowed” to be violated are all decisions that we make collectively. 

This case highlights how privacy is  socially constructed by illustrating just how blurry the boundaries between “public” and “private” actually are.