Technological change challenges the protection of our Constitutional rights in ways that were, for obvious reasons, unforeseeable in the eighteenth century. The following cases trace the evolution of certain doctrines of Constitutional law in the face of these technological changes.
It may seem unusual to begin discussion of constitutional rights and technological change with a rather lengthy quote from a Supreme Court case about cruel and unusual punishment, but Justice Brandeis’s dissenting opinion in Olmstead v. United States (1928) recognized the relevancy of Justice McKenna’s remarks from Weems v. United States (1910);
“Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, “designed to approach immortality as nearly as human institutions can approach it.” The future is their care, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule, a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality.”
Olmstead v. United States
The Olmstead decision involved the admissibility of wiretapped conversations of Roy Olmstead, a Seattle police officer and bootlegger. The majority of the Court held that the wiretapped calls made by Olmstead from a telephone booth were not an unconstitutional search and seizure prohibited by the Fourth Amendment because wiretapping did not involve physical trespass or seizure. In his dissent, Justice Brandeis invoked McKenna’s reasoning and added,
“Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.
Moreover, “in the application of a constitution, our contemplation cannot be only of what has been but of what may be.” The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may someday 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.”
Katz v. United States
Nearly forty years later, in Katz v. United States (1967), Brandeis’s view was vindicated when the Court abandoned the physical intrusion requirements of Olmstead and Goldman v. United States (1942) in favor of the ‘reasonable expectation of privacy’ test set forth in Justice Harlan’s concurring opinion. Coincidentally, both Olmstead and Katz involved surveillance of a telephone booth. Charles Katz was transmitting gambling wagers, rather the conducting a bootlegging business, and an electronic eavesdropping device attached to the telephone booth was used, rather than a wiretap. These distinctions, however, were not the basis for the revised approach to search and seizure.
The Katz decision brought forth Justic Stewart’s iconic statement that the Fourth Amendment “protects people, not places,” expanding search and seizure protections from encompassing merely physical intrusions on “areas” to now include intrusions upon an expectation of privacy that could be justifiably relied upon by a person. The new doctrine introduced a two-prong test, requiring not only a subjective expectation of privacy, but also an objective element requiring that society recognized the individual’s expectation as reasonable.
Smith v. Maryland
The telephone maintained its presence in the Supreme Court case of Smith v. Maryland (1979), which invoked what was known as the “Third Party Doctrine.” While the Third Party Doctrine’s lineage reaches back at least as far as Wilson v. United States (1911), Smith is its earliest application to a Fourth Amendment case involving technological progress, and set a boundary on what could be protected under Katz’s reasonable expectation of privacy.
In Smith, Michael Lee Smith was arrested and charged with robbing Patricia McDonough. After the robbery, Smith continued to harass McDonough by making threatening and obscene phone calls to her home. The police were able to identify Smith from the car he was seen driving, and subsequently had a pen register installed, without a warrant, at the telephone company’s office, allowing them to record all of the telephone numbers dialed from Smith’s home telephone.
Smith sought to suppress the evidence obtained as a result of the use of the pen register, which he argued was a search that violated his reasonable expectation of privacy. The Court rejected this argument because even if Smith subjectively expected that the numbers he dialed on his telephone were private, a reasonable person would be aware that those numbers were transmitted to the telephone company and recorded for business purposes (such as producing telephone bills). This was consistent with the Court’s prior decisions holding that a person has no legitimate expectation of privacy in information voluntarily turned over to third parties.
United States v. Jones
Approximately 33 years after Smith, the Supreme Court confronted the issue of GPS tracking in United States v. Jones (2012). Although this case was decided based on the unconstitutional, physical trespass of installing a government GPS device on Jones’s vehicle, the Justice’s also established that the opportunity to continuously monitor the location of a person’s vehicle afforded by the GPS device necessitated a refinement to the Third Party Doctrine. This refinement would eventually be applied to restrict the government’s warrantless access to cell site location information.
In Jones, the government relied upon United States v. Knotts (1983). In Knotts, the Court held that a person traveling in an automobile on public thoroughfares had no reasonable expectation of privacy in his movements. Therefore, the government argued, electronically monitoring the location of Jones’s vehicle could not be a search, because he voluntarily exposed his vehicle to the public. However, a majority of the Justice’s held that the continuous monitoring of a vehicle’s location for 28 days was distinguishable from short-term monitoring that society could reasonably expect while traversing public thoroughfares.
The cases of Olmstead, Katz, Smith, and Jones show how technological changes lowered the cost of government surveillance. The Supreme Court responded not by curtailing what may be considered private, but by reshaping the definition of a search, moving from Olmstead’s test of physical intrusion to a test based upon what people reasonably expect to remain private from government surveillance. The Jones decision also raised the issue of circularity in the reasonable expectation of privacy test. Society looks to the Court to determine what they can reasonably expect to have protected from government surveillance, but the Court looks at society’s expectations as the basis for their rulings.
The third part doctrine and the circularity issue will come to the forefront in the Court’s 2018 decision Carpenter v. United States (2018), which will be the subject of another article.
