"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The constitutional framers did not consider the possibility of stored digital content or electronic communications when they wrote these words. When electronic communications first became widespread early in the 20th century, law enforcement agencies began to use wiretapping in their investigations without obtaining the warrants required for a physical search. The resulting convictions led to to court appeals before the US Congress considered the question of electronic privacy. Thus it fell to the courts to interpret the intent of the framers in determining if warrantless eavesdropping and wiretapping are covered by the Fourth Amendment. The key question is whether wiretapping constitutes a form of "search and seizure".
This question first reached the US Supreme Court in 1928, resulting in one of only a handful of Supreme Court decisions overturned by the Court in later rulings. The case and the decision are summarized by the following text, taken from Landmark Dissents in United States Supreme Court Cases and interspersed with quotes from the decision.
In the 1928 U.S. Supreme Court case of Olmstead v. United States, decided by a 5-4 vote, Justice Louis Brandeis' dissenting opinion argued for a constitutional right to privacy and warned future generations about the advancement of technology and its possible intrusion into constitutionally protected areas. In 1924, Mr. Ralph Olmstead stood accused of violating the Volstead Act (1920) which outlawed the transportation or sale of alcoholic beverages anywhere in the United States. The evidence against Olmstead was gathered through the use of electronic wire-tapping of Olmstead's office and home. Olmstead claimed his Fourth and Fifth Amendment rights had been violated. Olmstead believed the search of his house and office was illegal and that his conversations should not be used to self-incriminate him in court. The U.S. Supreme Court, however, did not agree with Olmstead. Chief Justice William Howard Taft argued that the search of Olmstead's property did not violate the Fourth Amendment's protection against unreasonable searches and seizures because the police did not physically enter Olmstead's house or office and seize physical evidence. Rather, the police overheard telephone conversations over "...wires reaching into the whole world from the defendant's house or office."
"The amendment itself shows that the search is to be of material things - the person, the house, his papers or his effects. The amendment does not forbid what was done here for there was no seizure. The evidence was secured by the sense of hearing and that only. There was not entry of the houses. The language of the amendment cannot be extended and expanded. Since the evidence was a conversation and no entry was made into Olmstead's home, there was therefore no violation of his rights against unreasonable search and seizure."
Justice Louis Brandeis, one of four justices dissenting in this case wrote, "The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home." Justice Brandeis further argued that the "right to be let alone" was the most important right available to mankind.
"The Government makes no attempt to defend the methods employed by its officers. Indeed, it concedes that if wire-tapping can be deemed a search and seizure within the Fourth Amendment, such wire tapping as was practiced in the case at bar was an unreasonable search and seizure, and that the evidence thus obtained was inadmissible. But it relies on the language of the Amendment; and it claims that the protection given thereby cannot properly be held to include a telephone conversation."
'We must never forget,' said Mr. Chief Justice Marshall in McCulloch v. Maryland, 'that it is a Constitution we are expounding.' Since then this court has repeatedly sustained the exercise of power by Congress, under various clauses of that instrument, over objects of which the fathers could not have dreamed. ...We have likewise held that general limitations on the powers of government, like those embodied in the due process clauses of the Fifth and Fourteenth Amendments, do not forbid the United States or the states from meeting modern conditions by regulations which 'a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive.' ...Clauses guaranteeing to the individual protection against specific abuses of power, must have a similar capacity of adaptation to a changing world.
Time and again this court, in giving effect to the principle underlying the Fourth Amendment, has refused to place an unduly literal construction upon it....The protection guaranteed by the amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."
Forty years later the U.S. Supreme Court embraced Brandeis' opinion in the 1967 Katz v. United States case which overturned the Olmstead decision. The Katz decision (7-1) concluded that wiretaps and other types of electronic surveillance were unconstitutional because they violate an individual's right to be protected against unreasonable searches and seizures.
This description of the Katz decision is quoted from Privacy in Cyberspace.
In the early twentieth century, the Supreme Court's Fourth Amendment jurisprudence was geared toward the protection of property. The Court's inclination to protect property quite clearly is reflected in its 1928 decision in Olmstead v. United States (277 U.S. 438 (1928)). In Olmstead, the Supreme Court held that use of a wiretap to intercept a private telephone conversation was not a "search" for purposes of the Fourth Amendment. One of the grounds on which the Court justified its result was that there had been no physical intrusion into the person's home. Under Olmstead's narrow view of the Fourth Amendment, the amendment was not applicable in the absence of physical intrusion. Thus, without trespass or seizure of any material object, surveillance was beyond the scope of the Fourth Amendment as interpreted by the Olmstead Court.
However, in its well-known decision in Katz v. United States, 389 U.S. 347 (1967), the Supreme Court rejected Olmstead's "trespass" doctrine, articulating, in its place, a Fourth Amendment jurisprudence based on the protection of individual privacy. In Katz, the Court held that the Fourth Amendment protects people, not places: "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Thus, the Court held that physical penetration of a constitutionally protected area is not necessary before a search and seizure can be held to violate the Fourth Amendment. According to the Court in Katz, "once it is recognized that the Fourth Amendment protects people-and not simply "areas"-against unreasonable searches and seizures it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure." Thus, although the Government's activities in Katz involved no physical intrusion, they were found to have violated the privacy on which the petitioner justifiably relied and thus constituted "search and seizure" within the meaning of the 4th Amendment. Changing technology precipitated the shift from protection of property to protection of privacy, and in 1968, just one year after Katz, Congress passed Title III of the Omnibus Crime Control and Safe Streets Act authorizing microphone surveillance or wiretapping for law enforcement purposes, and requiring a warrant, based on probable cause, prior to such surveillance or wiretapping.
Justice Black dissented from Katz. This discussion of his opinion is quoted from The Supreme Court and Electronic Surveillance.
It is significant that such a rule [protecting electronic privacy] appears nowhere in the text of the Constitution. In fact, this is precisely the kind of judgment the Olmstead Court refused to make because it considered such an extension of the meaning of "search and seizure" to be the proper jurisdiction of Congress....In his dissenting opinion, Justice Black claims that the decision rendered by the Katz Court effectively amounts to a revision of the Fourth Amendment.
When we examine his argument we see that Black employs an originalist interpretation of the Constitution which cannot be reconciled with an activist stand. The philosophy of original understanding is based upon the neutral application of a legal principle, which includes neutrality in deriving, defining, and applying the principle. A judge is to seek the original understanding of the words in the text of the Constitution in order that the Court may remain a legal rather than a political institution. Hence, originalism holds that the Court is not free to define the scope of a principle as it sees fit, for the outcome of the decision would then be based upon grounds that are not contained in the original understanding of the principle it purports to apply.
Such grounds cannot come from the legislature, and hence, must come from the personal preferences of the justices. Justice Black bases his dissenting decision on the meaning of the term "eavesdropping." According to his analysis, the Katz Court incorrectly defined "wiretapping" as a form of search and seizure rather than defining it more accurately as "eavesdropping carried on by electronic means." Black interprets the Court's opinion as opening the door for the enactment and the enforcement of laws regulating wiretapping in accord with the Fourth Amendment despite the obstacles the Berger Court set in the way of wiretapping laws. In order to appreciate these obstacles, we must recall that the Berger Court demanded the same procedure for obtaining a warrant for electronic surveillance as for physical intrusion. Yet a warrant for search and seizure normally requires that the named parties be notified. In the case of electronic surveillance, however, such a requirement obviously defeats the effectiveness of the method of intrusion. Although Black held that such obstacles to legislation regulating wiretapping must be removed, the failure of the Court to make a distinction between "search and seizure" and "eavesdropping" incorrectly extended the Fourth Amendment to include wiretapping. In arguing for his opinion, Black upholds two convictions: (1) the words of the Fourth Amendment do not bear the meaning given them by the Court's decision, and (2) it is not the proper role of the Supreme Court to "rewrite the Amendment in order `to bring in it in harmony with the times` and thus reach a result that many people believe to be desirable."
Thus, we see that Black is employing two fundamental tenets of originalism: (1) justices must seek the original meaning of the words of the text, and (2) justices are not to rewrite the scope of a principle where the Constitution is silent for this is the proper role of the democratically elected legislature. After quoting the entire Fourth Amendment, Black establishes that the "Framers' purpose" was to protect tangible things and not to protect conversation which cannot be searched or seized according to the normal meaning of such words.
Moreover, the Amendment refers to things which must be described for they are already in existence. Yet it is impossible to describe a future conversation. Hence, Black concludes that the Fourth Amendment does not apply to eavesdropping. Although wiretapping was unknown at the time of the framing of the Bill of Rights, eavesdropping certainly was practiced and could of being incorporated into the Fourth Amendment. Black proceeds by giving an overview of Supreme Court cases dealing the Fourth Amendment's applicability to eavesdropping...He concludes that he is simply applying the scope of the Fourth Amendment which the Court has traditional followed and that the Katz Court has made a distinctive break in order to include eavesdropping.
In a footnote, Black states that "the Court is promulgating new doctrine instead of merely following what it `has long held.`" According to Black, the Court has decided that a conversation can be "seized." In light of his conviction that it is not the place of the Supreme Court to "keep the Constitution up to date," he claims that the Court does not have the power to give new meaning to words, especially a meaning which the words to do have in "common ordinary usage."
To exercise such power is to turn the Court into "a continuously functioning constitutional convention." Black points out that this shift in the Court's policy happened only recently and is coincident with its "referring incessantly to the Fourth Amendment not so much as a law against unreasonable searches and seizures as one to protect an individual's privacy." Moreover, he considers this an arbitrary substitution of the "Court's language" for "Constitution's language." As another example of a substitution in favor of a right to privacy, Black recalls his dissenting opinion in Griswold v. Connecticut. There he held that the Constitution does not provide a "right to privacy" that protects individuals from laws which compromise privacy. The conclusion of his dissenting opinion in Katz states: No general right is created by the [Fourth] Amendment so as to give this Court the unlimited power to hold unconstitutional everything which affects privacy. Certainly the Framers, well acquainted with the excesses of governmental power, did not intend to grant this Court such omnipotent lawmaking authority as that. The history of governments proves that it is dangerous to freedom to repose such powers in the courts. Given Black's originalist position, it is understandable that he could not be reconciled with the Court's decision to extend the protection of the Fourth Amendment to recording and wiretapping. Although Black recognizes the legitimate need to regulate wiretapping, he believed that the obstacles presented by the Berger Court should have been dealt with in another manner.
In particular, he is concerned with the Court's adoption of rights discourse. Rather than upholding a right to privacy by expanding the meaning of "seizure" to include conversation, presumably Black felt that the Court should have deferred to Congress in order that the law be updated by amendment to the Constitution.
This argument illustrates an important tension between those who apply a "strict constructionist" interpretation of the Constitution and those who seek to apply the underlying principles of the "intent of the framers" to new technologies and new issues in modern society.
In June 2001, the Court narrowly ruled as unconstitutional the use of a thermal imaging device to detect heat from lamps in an indoor marijuana growing operation. The Court ruled that warrantless use of electronic surveillance technology "that is not in general public use" is unconstitutional when it violates a reasonable expectation of privacy in ways that would previously have required a physical search.
Kyllo: Taking the 5th on the 4th (Wired magazine)
A Victory for Privacy (WSJ)
Response to "A Victory for Privacy"