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Saturday, April 19, 2014

Personal Curtilage: Fourth Amendment Security in Public by Andrew Guthrie Ferguson

Personal Curtilage: Fourth Amendment Security in Public by Andrew Guthrie Ferguson :: SSRN

Abstract:      

Do citizens have any Fourth Amendment protection from sense-enhancing surveillance technologies in public? This article engages a timely question as new surveillance technologies have redefined expectations of privacy in public spaces.

This article proposes a new theory of Fourth Amendment security based on the ancient theory of curtilage protection for private property. Curtilage has long been understood as a legal fiction that expands the protection of the home beyond the formal structures of the house. Curtilage recognizes a buffer zone beyond the four corners of the home that deserves protection, even in public, even if accessible to public view. Based on custom and law protecting against both nosy neighbors and the government, curtilage was defined by the actions the property owner took to signal a protected space. In simple terms, by building a wall around one’s house, the property owner marked out an area of private control. So, too, the theory of personal curtilage turns on persons being able to control the protected areas of their lives in public by similarly signifying that an area is meant to be secure from others.