What is Justice Harlan’s formulation of the privacy test?

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Justice John Marshall Harlan articulated his "reasonable expectation of privacy test" in his concurring opinion to the Court's 1967 decision in Katz v. United States. The case involved wiretapping, a practice that had not yet been included in the definition of searches under the Fourth Amendment. The question was whether or not authorities needed a warrant to tap a person's phone, and the Court ruled that they did. In concurring with the majority opinion, Harlan wrote that when a person had demonstrated an "expectation of privacy" that society would view as "reasonable," then the state needed a warrant to violate this expectation. So Harlan's test essentially had two parts, one related to individual expectations and the other to societal and legal norms. The majority decision of Court had defined what constituted a search while not completely rejecting warrantless wiretaps as illegal. Harlan's test has been applied to other cases as well, sometimes protecting against searches and other times, like when a person is in an open area, denying this protection.

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I assume that you are talking about the test that Harlan proposed in Katz v. United States for when a person has the right to privacy.

If so, Harlan proposed a two-pronged test.  First, he said that the person has to act as if they expect that they are in private.  In other words, if someone puts something out right in front of their window where everyone can see it, they are not acting as if they are in private.  Second, he said that this expectation has to be one that society is willing to recognize as valid.  For example, a person having a conversation in the middle of a crowd could not reasonably expect that the conversation would be private.

This was Harlan's privacy test, which was later adopted by the whole Court.

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