Privacy shouldn’t depend on your square footage

Illustration of house fronts
Mingxin Wang /Staff

Related Posts

Erich Sorenson was at home when the police knocked on the door. Prompted by the officers to step outside, Sorenson compliantly made his way through the door and, upon doing so, was immediately arrested in connection to a stabbing in Lowell, Massachusetts.

Had Sorensen resided in a detached home, this arrest wouldn’t have been possible. The police need a warrant, which they lacked in Sorenson’s case, to conduct a search of a home and the curtilage of that home. Yet, Sorensen, like millions of Americans, lives in an apartment building, and that made all the difference.

By stepping beyond the front door of his apartment, Sorenson, in the eyes of the police, entered a common space — a space with far fewer protections against unreasonable governmental intrusion than the open-air porch of a detached home, a space at the “very core” of the protections afforded by the Fourth Amendment. 

The Fourth Amendment protects Americans against unreasonable government intrusion of one’s home. Absent a warrant and other specific circumstances, the police must respect the privacy individuals expect in their homes as well as the “curtilage” surrounding their homes. What exactly curtilage means is at the heart of Sorenson’s petition to have the U.S. Supreme Court review his case — a step Sorenson opted to take after the Massachusetts Appeals Court decided in favor of the state.

Should Sorenson’s smaller dwelling in a multi-unit complex afford him lesser protection against government intrusions? The Supreme Court can and should answer this important question and make clear that privacy should not mean one thing for homeowners and another for apartment renters; subtle distinctions such as whether you have exclusive access to your porch should not lead to massive differences in the privacy you’re afforded.

Resolving this case in favor of Sorenson and apartment residents in general is justified based on the Supreme Court’s test for what counts as “curtilage” as well as society’s evolving conception of privacy. The Supreme Court has previously looked at four factors in curtilage cases: the proximity of the area to the dwelling; whether the area is within an enclosure surrounding the home; what the area is used for; and, what steps, if any, the resident took to protect the area from observation or access by people passing by.

Applied to Sorenson’s case, these factors all justify regarding the area outside his door as curtilage: It’s proximate to the dwelling; it’s within a private apartment building; it’s capable of being used for private, personal matters such as an important conversation; and it’s an area effectively blocked from public access by the existence of two flights of stairs. Surely Sorenson did not expect that one step beyond his apartment door would transport him from a private realm to a public one. 

While it’s true that a hallway in an apartment building is trafficked more than a porch of a detached home, they are regarded similarly by the residents of the respective dwellings. Several courts have recognized that similarity; the Supreme Court should as well.  

A failure to side with Sorenson will perpetuate a growing problem: pay-for-privacy schemes creating privacy haves and privacy have-nots. Consider one example of this divide: Americans are increasingly being asked to accept intrusive data collection schemes or pay for control over the use of their data. This is true on many apps — there’s a free version that passes along user data to third parties and there’s a paid version that keeps user data within the confines of the app. These choices, when aggregated, mean that poorer Americans are required to give away their information to gain access to certain apps and, as a result, surrender a lot of personal information. 

In Sorenson’s case, this issue is made worse. Apartment residents don’t have the option to pay for a detached porch — they have to make the most of the spaces in and around their apartment unit. The fact that other people can walk by Sorenson’s front door shouldn’t erase the privacy he expects from that area. The Supreme Court should take this case and make clear that privacy isn’t based on the square footage of one’s home.

Kevin Frazier is a third-year student at UC Berkeley School of Law. Contact the opinion desk at [email protected] or follow us on Twitter @dailycalopinion.