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Wednesday, Apr. 25, 2001

Amtrak recently admitted that some of its offices routinely share information about its passengers with the Drug Enforcement Administration (DEA). This includes identifying which Amtrak customers paid their bills with credit cards and which ones paid with cash.

Customers who pay their bills with cash make the DEA suspect that they might be drug couriers. With the help of Amtrak's information, the DEA can have its canine assistants sniff the luggage of passengers fitting the DEA's drug courier profile. The dogs then alert their human companions when particular luggage contains drugs.

Upon learning of this practice, one American Civil Liberties Union director expressed outrage at the invasion of Amtrak passenger privacy. He indicated that the ACLU was investigating the Fourth Amendment implications of this practice. Unfortunately, once the ACLU finishes its investigation, it will learn that there is nothing unconstitutional about what Amtrak is doing.

Amtrak As Government Actor

One might think that Amtrak is a private company and for that reason exempt from constitutional commands. After all, the Fourth Amendment only bars the government, not private individuals, from conducting unreasonable searches and seizures. But that is not the argument I am making. On the contrary, the Supreme Court has held that Amtrak is a public, not a private, actor. It is accordingly quite likely that that the Fourth Amendment does apply to Amtrak.

In Lebron v. National Railroad Passenger Corp., the Court held that for purposes of the First Amendment, Amtrak is a state actor. Though the First and Fourth Amendments are not identical, it seems reasonable to infer from Lebron that Amtrak is also a state actor for purposes of the Fourth Amendment, which guarantees the individual right against unreasonable searches and seizures.

Accordingly, if Amtrak had violated passengers' "reasonable expectations of privacy," either by sharing payment information with the police, or by permitting dog-sniffs of passenger luggage, then the ACLU would have a valid Fourth Amendment complaint against Amtrak. Hard as it may be to believe, however, the Supreme Court's precedents do not consider anything that Amtrak has done to invade people's reasonable expectations of privacy.

No Fourth Amendment Protection from "Pretend Friends"

An Amtrak customer whose information was turned over, or whose luggage was sniffed, might claim that Amtrak had created the impression that it was a friendly company that was simply providing transportation in exchange for money — not an adversary, and certainly not an arm of the DEA.

But the impression that customers have of Amtrak, even if widely shared, and even if deliberately cultivated by Amtrak, is legally irrelevant for Fourth Amendment purposes. The Supreme Court has made very clear that betraying a trust not only does not violate the Fourth Amendment, but it does not even implicate its demands.

The government can, for example, without a warrant or probable cause, send out agents to befriend private citizens and learn their secrets. Neither the acquisition of the secrets, nor their conveyance to other agents, qualifies as an invasion of privacy. As if that were not enough, the "pretend friend," as I will call the government mole, can wear a tape recorder and wire, and thereby record and simultaneously transmit the unsuspecting citizen's confidences to other law enforcement officials. This too requires no authorization or factually based suspicion of crime.

In an opinion by Justice White, the Court essentially held that there is no reasonable expectation of privacy in one's friends. If you tell a friend a secret, you assume the risk that your friend is actually a government agent. If your "friend" happens also to be wearing a wire, that too is your problem. If you don't like it, you can always frisk your friends before saying anything (since you, as a private citizen, are not bound by the Fourth Amendment). You voluntarily surrender information to third parties at your peril.

It would seem to follow that if the government can pretend to be your friend, it can also pretend to be a purely commercial enterprise. The fact that you have done all you can to protect information about yourself from such an enterprise makes no legal difference either. Ironically, you might pay Amtrak in cash specifically to avoid giving over your credit card information — out of reluctance to have your purchasing habits tracked, and perhaps even because you suspect that Amtrak is a government actor. If you have done so, then you might well attract the attention of the DEA. The Fourth Amendment offers no protection from that attention, however unwanted and however undeserved.

No Fourth Amendment Protection from Canine Observation

Once the DEA finds out that an Amtrak customer generally pays in cash, you might think that it needs more than bare suspicion to bring dogs in to sniff the customer's luggage. If you thought so, however, you would be mistaken. The Court does not consider a dog sniff of luggage to invade any reasonable expectations of privacy either.

The Supreme Court has said as much in United States v. Place. The logic goes like this. If a dog sniffs your luggage, she conveys only one piece of information to her human partner: whether or not there is contraband in your suitcase. Although the dog herself knows a lot more about the contents of your luggage (including, perhaps, what you will be eating for lunch), the human learns only the on/off fact about drugs. The Court thus treats the dog sniff as the equivalent of a drug-detector machine that scans the area and tells the police which luggage contains illegal substances.

How Animals Can Violate Privacy, Too

As I explained in an earlier column, there is no reasonable expectation of privacy in the fact that you are breaking the law, so a perfect instrument for detecting such a breach does not implicate the Fourth Amendment. Is a dog, however, merely a crime-detection machine? Is it only human beings who can invade our privacy?

I used to think so, until I adopted a dog (and then another dog). Now I know that dogs think, feel, and observe their surroundings and are therefore amply capable of provoking embarrassment or shame in human beings.

One of my dogs, for example, likes to follow guests into the restroom. Some guests do not mind. Others, however, pat Scooter on the head and say, "You're not coming in here with me. I'll come out and play with you soon." Apparently, having Scooter in the lavatory does not feel the same to these guests as having a machine (such as an electric toothbrush) in the lavatory. They do not want to be watched while they go to the bathroom; being watched by a dog, to them, is being watched ("Big Scooter is Watching").

In a similar vein, the Monks of New Skete (who breed German Shepherd Dogs and publish books about dog training) tell in one book of a woman who complained that her puppy was interfering with her love life. How so?, asked the monk. The puppy would watch her and her husband in bed together, and the resulting embarrassment led them to … er … canis interruptus.

The monk found the couple's feelings amusing and suggested that they just ignore the puppy's voyeurism and do whatever they would otherwise do. The woman's complaint, however, demonstrates again that for some people, the experience of being perceived by a dog can feel similar to the experience of being perceived by a human being. It can intrude upon one's sense of privacy.

If I am right that some people feel a need for privacy from animals other than human beings, a dog sniff comes to seem very different from the operation of a magic drug-detection machine. The dog has a keen sense of smell. She can detect not only whether a bag contains cocaine or heroin but also whether the bag contains dirty laundry or all other manner of odoriferous items. Thus, though the dog only tells her human companion about the drugs, a privacy-valuing passenger might not want the dog herself to take in all of the other scents in his luggage.

What emerges from Amtrak's behavior, and the fact that none of it violates the Court's vision of the Fourth Amendment, is a disturbing reality. The Fourth Amendment doctrine leaves unprotected from government intrusion much that people subjectively experience as intensely personal and private. In other words, many of us may be "unreasonable" — as a legal matter — in our expectations of privacy.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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