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Fourth Amendment :: History Dont be a FOOL; The Law is Not DIY

The American Revolution proposed several radical notions; one was the idea that the sovereign lacks the capacity to, at its whim, impose on the citizen searches or the taking into possession the citizen’s property. It cannot be overstated what a dramatic departure this was from conservative European monarchical governments. [4th Amendment] In time, modern governments such as the Nazis sought a return to strongly centralized totalitarian regimes, eliminating or marginalizing civil rights as extremists consolidated power. These American notions of an accountable and curtailed government are cornerstones of government by the people.

Colonial Era

Derived From: CRS 2003 Report:

"At common law, “eavesdroppers, or such as listen under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance and presentable at the court-leet; or are indictable at the sessions, and punishable by fine and finding of sureties for [their] good behavior,” 4 BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, 169 (1769).

"Although early American law proscribed common law eavesdropping, the crime was little prosecuted and by the late nineteenth century had “nearly faded from the legal horizon.”2 With the invention of the telegraph and telephone, however, state laws outlawing wiretapping or indiscretion by telephone and telegraph operators preserved the spirit of the common law prohibition in this country."

19th Century

Brandeis, L. D., & Warren, S. (1890). The right to privacy. HARV. L. Rev. 4, 193.

Telegraph and privacy (privacy by cipher)

US Mail

Ex parte  Jackson, 96 U.S. 727 (1877). (“the right of the people to be secure in their papers against unreasonable searches and seizures [4th Amendment] extends to their papers, thus closed against inspection, wherever they may be.  Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household”)

20th Century

World War I

Derived From: CRS 2003 Report: "Congress enacted the first federal wiretap statute as a temporary measure to prevent disclosure of government secrets during World War I. Later, it proscribed intercepting and divulging private radio messages in the Radio Act of 1927, but did not immediately reestablish a federal wiretap prohibition. By the time of the landmark Supreme Court decision in Olmstead, however, at least forty-one of the forty-eight states had banned wiretapping or forbidden telephone and telegraph employees and officers from disclosing the content of telephone or telegraph messages or both. "

First federal wiretapping statute. 40 Stat. 1017-18 (1918) (“whoever during the period of governmental operation of the telephone and telegraph systems of the United States . . . shall, without authority and without the knowledge and consent of the other users thereof, except as may be necessary for operation of the service, tap any telegraph or telephone line . . . or whoever being employed in any such telephone or telegraph service shall divulge the contents of any such telephone or telegraph message to any person not duly authorized or entitled the receive the same, shall be fined not exceeding $1,000 or imprisoned for not more than one year or both”); 56 Cong.Rec. 10761-765 (1918).

Radio Act of 1927, 44 Stat. 1172 (1927)(“. . . no person not being authorized by the sender shall intercept any message and divulge or publish the contents, substance, purpose, effect, or meaning of such intercepted message to any person . . .”).

1924: Attorney General Harlan Fiske Stone banned wiretapping by the Department of Justice (ban did not apply to Dept. of Treasury which had jurisdiction over prohibition). [1985 ECPA Report p 31]

Olmstead 1928

The 4th Amendment's privacy protections were not always extended to electronic communications. In an era when telephone service was still novel, the Supreme Court struggled to recognize the applicability of the Fourth Amendment and the Fifth Amendment to a telephone call. In Olmstead v. US, law enforcement convicted bootleggers based on evidence gathered from wiretaps. The wiretaps were outside the homes and offices of the defendants; law enforcement did not enter the private property of the defendants in order to conduct the taps. Therefore, the Supreme Court, in a split vote, concluded "The [Fourth] Amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants." Olmstead v. US, 277 US 438, 465 (1928). This places Fourth Amendment protections in a trespass paradigm, and there was no trespass (see early Brandeis articulating personal privacy protections in a tort / trespass paradigm). "The fifth amendment did not apply because there was no evidence of compulsion to talk over the phone and because the fourth was not first violated." [ECPA Report 1985 p 24]

The Olmstead decision was unpopular and legislation was introduced to couteract the Supreme Court decision. However, Olmstead would remain the law of the land until overturned in the late 1960s by Katz and Berger.

Ken Burns: Prohibition: Whispering Wires

The seeds of destruction of Olmstead were written within the Olmstead opinion. Justice Louis Brandeis, in his famous dissented, opined that the court had failed to recognize the Constitution as a living document. The Founding Fathers could not have anticipated all that would come after their time, nor did they intend for the Bill of Rights to be applicable only to the threats that occurred during their time. Brandeis wrote, 

When the Fourth and Fifth Amendments were adopted, "the form that evil had theretofore taken," had been necessarily simple. Force and violence were then the only means known to man by which a Government could directly effect self-incrimination. It could compel the individual to testify - a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life - a seizure effected, if need be, by breaking and entry. Protection against such invasion of "the sanctities of a man's home and the privacies of life" was provided in the Fourth and Fifth Amendments by specific language. But "time works changes, brings into existence new conditions and purposes." 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. 

[Olmstead, Brandeis dissent, 473] The 4th Amendment, and the Constitution, has to be a living document, adapting in implementation as facts evolve.

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 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. Advances in the psychic and related science may bring means of exploring unexpressed beliefs, thoughts and emotions. . . Can it be that the Constitution affords no protection against such invasions of individual security? 

As Brandeis foretold, the jurisprudential history of the Fourth Amendment has been an evolution that has revised as technology has evolved.

Communications Act of 1934, Section 605

1985 ECPA Report p 18:

"Congress did not play an active or effective role in surveillance policy until 1968. Prior to that time, the only legislation affecting official use of surveillance technology was unintended. In 1934, Congress remodified the Radio Act of 1927 as the Communications Act. Section 605 of the 1934 Act provided that “No person not being authorized by the sender shall intercept any communication and divulge . . . the contents. ” There was no specific legislative history for this section and it appears that the 1934 bill was not intended to change existing law. (See: S. Rep. No. 781, 73 Cong., 2d sess. 11 (1934))

This was the interpretation until 1938 when the Supreme Court, in Nardone v. United States, 302 U.S. 379, ruled that Section 605 prohibited all telephone wiretapping, even when done by Federal Government officers. In response, bills passed both houses of Congress allowing wiretapping under certain circumstances and with certain procedural requirements. But the session ended before the conference committee could resolve a difference between the two bills-the House bill explicitly criminalized unauthorized official surveillance.

"Despite Congress’s failure to overrule Nardone by legislation, wiretapping continued because the Justice Department construed Section 605 as not prohibiting wiretapping itself, but only the interception and subsequent divulgence outside the Federal establishment. Additionally, the President issued an Executive order to allow wiretapping for national security purposes.

World War II

1985 ECPA Report p 32:

"During and after World War II, the FBI engaged in large amounts of electronic surveillance. Between 1940 and 1960, the FBI installed over 7,000 national security surveillances, with 519 taps and 186 bugs in 1945 alone; and the Treasury Department installed over 10,000 taps during 1934 to 1948. Other Federal agencies, like the military, also engaged in tapping and bugging. On the local level, the New York City police installed thousands of taps each year (e.g., 3,588 in 1953-54), mostly in morals and bookmaking investigations; studies by Samuel Dash and others have documented widespread tapping elsewhere.

"The tapping and bugging targeted many people who might not normally appear to be appropriate targets, a situation that continued at least into the 1960s. In 1941, for example, the Los Angeles Chamber of Commerce was tapped, on the authority of Attorney General Francis Biddle. Presidential aides and others were similarly tapped. The most complete information on these practices, as developed by the Church Committee, relates to FBI surveillances in the post-1960 period when Dr. Martin Luther King, Jr., Congressman Harold Cooley, journalists, and many others were put under electronic surveillance.

Goldman v. United States, 316 U.S. 129 (1942) ("the use of a dictaphone to secretly overhear a private conversation in an adjacent office offended no Fourth Amendment precipes because no physical trespass into the office in which the conversation took place had occurred")

On Lee v. United States, 343 U.S. 747 (1952) ("the absence of a physical trespass precluded Fourth Amendment coverage of the situation where a federal agent secretly recorded his conversation with a defendant held in a commercial laundry in an area open to the public")


Mapp v. Ohio, 367 U.S. 643 (1961)

Silverman v. United States, 365 U.S. 505 (1961) ("the Fourth Amendment did reach the government’s physical intrusion upon private property during an investigation, as for example when they drove a “spike mike” into the common wall of a row house until it made contact with a heating duct for the home in which the conversation occurred")

"In the mid-1960s, illegal tapping and bugging by the FBI, IRS, and others came to light when FBI bugs were accidentally discovered in a Las Vegas gambler’s office and in Washington’s Sheraton-Carlton Hotel and lawyer-client conversations were overheard. This led to a series of court-ordered revelations of illegal Federal surveillance involving some 50 or more cases. As a result, in 1965 President Lyndon B. Johnson ordered an end to all electronic surveillance except in national security cases. " [ECPA Report 1985 p 33]

Katz & Berger 1967

Wiretapping law muddled along until one day a New York law enforcement officer placed a bug in a telephone booth in order to collect evidence on and convict a bookie. This was a public place and surely an individual had no privacy interest here, right? The Supreme Court in the seminal case Katz v. United States concluded that privacy interests attached to the person and not just to the place; a person could have an expectation of privacy regardless of where that person is. A telephone conversation could be subject to 4th Amendment protection.

Derived From: 1985 ECPA Report Chapter 2

In the landmark case of Katz v. US, 389 US 347 (1967), the Court ruled that wiretapping was a search under the fourth amendment. As is often the result of landmark cases, subsequent legal analysis and judicial construction have raised more questions than the case first resolved. This is especially true with respect to the two phrases most important for subsequent legal decisions–a “reasonable expectation of privacy” and “the fourth amendment protects people, not places.”

Following Katz, judicial determination of whether a “search or seizure’ ’-has occurred depends on whether or not the individual has a “reasonable expectation of privacy” in the area or activity under surveillance. In determining whether or not an individual has such an expectation, the Supreme Court has adopted as its test the two-part formulation from Justice Harlan’s concurring opinion:

  • first that a person have exhibited an actual (subjective) expectation of privacy and,
  • second, that the expectation be one that society is prepared to recognize as “reasonable." (objective)
  • The subjective part of the test focuses attention on the means the individual employs to protect his or her privacy, e.g., closing the door of a phone booth or closing curtains. Additionally, the assumption of risk that the individual appears to take is considered in determining the individual’s actual expectation of privacy. Under assumption of risk, an individual is presumed to assume the risk that another party to a conversation or activity may consent to a search. This assumption of risk prevails even if the consenting party is an informer or undercover agent.” [See Third Party Doctrine]

    The objective part of the test looks to what society regards as a reasonable expectation of privacy. Yet, it requires this without specify- ing an objective referent. Is “society” today’s opinion polls, longstanding norms and traditions, a reasonable person, or the knowledge that people have in common? The result of the objective part of the test is that the Court has implicitly constructed a continuum of circumstances under which society would regard an individual as having a reasonable expectation of privacy. The continuum ranges from public places (“open fields, ” “in plain view, ” “public highway”), in which there is no objective expectation of privacy except in unusual circumstances, to the inside of one’s home with the windows and curtains shut and the door bolted, in which there is an objective expectation of privacy. The objective expectation of privacy along the continuum (shopping centers, motels, offices, automobiles, and yards) depends on judicial interpretation. Recently, the Court has modified the objective element, referring to it as a ‘‘legitimate’ expectation of privacy. ”

    The second important component of Katz is the holding that ‘‘the fourth amendment protects people, not places. ” The question of what protection the fourth amendment offers people remains unanswered, and defining the scope of such protection still necessitates reference to places. Moreover, the distinction between “people” and “places” has raised the question of whether the fourth amendment still protects property interests, or whether it now protects only more personal interests. The issue of the protection afforded people as distinct from that afforded places has become more significant with the growth of third- party recordkeepers, e.g., banks. The thrust of the Court opinion in Katz seemed to represent an expansion, not a replacement, of the existing fourth amendment protections:

    The amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all.

    In evaluating the appropriateness of the use of electronic surveillance technologies by Government officials, the courts have worked within the framework established by Katz. By analogy to traditional surveillance devices, the courts have attempted to determine whether or not individuals have a ‘‘reasonable expectation of privacy. ” This becomes more difficult as surveillance devices become more technologically sophisticated because the analogy is often more remote and hence less convincing. The courts have generally continued to consider the place in which a surveillance device is located or the place that a device is monitoring. The courts generally have adopted the more expansive interpretation of Katz and have not abandoned higher levels of protection for certain places, e.g., homes and yards.

    Yet, the Katz framework has not offered the courts sufficient policy guidance to deal with the range and uses of new surveillance technologies. “Reasonable expectation of privacy” is an inherently nebulous phrase and, despite 20 years of judicial application, predicting its meaning in a new context is difficult. Determining whether a place is sufficiently private to offer protection against official surveillance is more and more difficult as the public sphere of activities encroaches on what was once deemed private.

    See also Berger v. New York, 388 U.S. 41 (1967) "Court declared the New York wiretapping statute unconstitutional because it was not particular enough in describing the crime, or “the place to be searched, ” or the ‘‘persons or things to be seized” as specifically required by the fourth amendment."

    Wiretap Act 1968

    In response to Katz and Berger, Congress in 1968 passed the Omnibus Crime Control and Safe Streets Act of 1968, establishing the Wiretap Act, and providing guidelines for when and how law enforcement should obtain a warrant in order to execute a wiretap. Omnibus Crime Control and Safe Streets Act of 1968, Title III, Pub. L. No. 90-351, Title III, 82 Stat. 212 (1968).

    Derived From: 1985 ECPA Report p 19

    "The problem the statute was designed to solve was seen as a combination of “tremendous scientific and technological developments that have taken place in the last century [that] have made possible today the widespread use and abuse of electronic surveillance techniques, and “a body of law [that] from the point of view of privacy or justice [i.e., law enforcement] is . . . totally unsatisfactory. ‘ [S. Rep. No. 1790, 75th Cong., 3d sess. 3 (1983)] The preamble to Title III reflects these aims: 1) to obtain evidence of “certain major types of offenses, and to cope with ‘‘organized crimin a l s and 2) to safeguard the privacy of innocent persons and to provide ‘‘assurances that the interception is justified and that the information obtained thereby will not be misused.

    "In order to achieve these purposes, the statute provides that electronic surveillance of conversations is prohibited, upon pain of a substantial jail sentence and fine, except for: 1 ) law enforcement surveillance under a court order; 2) certain telephone company monitoring to ensure adequate services or to protect company property; 3) surveillance of a conversation where one participant consents to the surveillance; and 4) surveillance covered by the Foreign Intelligence Surveillance Act of 1978 (as Title 111 was later amended). enforcement surveillance must meet certain procedural requirements, which include:

    1. an application for a court order approved by a high-ranking prosecutor (not by a policeman);
    2. surveillance only for one of the crimes specified in Title III (the list was expanded in the early 1970s and again in October 1984 in the Comprehensive Crime Control Act);
    3. probable cause to believe that a crime has occurred, the target of the surveillance is involved, and the evidence of that crime will be obtained by the surveillance;
    4. a statement indicating that other investigative procedures are ineffective; and
    5. an effort to minimize the interception.

    A judge must pass on the application and may issue the order, and any extensions, if it meets the statutory requirements. Shortly after the surveillance ends, notice of the surveillance must be given to some or all of the people affected, as the judge decides, unless the judge agrees to postpone the notice. Illegally obtained evidence may not be used in any official proceedings, and a suit for damages may be brought for illegal surveillance, though a very strong good faith defense is allowed. In addition, the manufacture, distribution, possession, and advertising of devices for electronic surveillance for nonpublic use are prohibited.

    There was little discussion of electronic surveillance by State officials during the legislative debates. Nevertheless, s 2516(2) of Title III gives State officials wiretapping authority, if a State passes legislation modeled on the Federal act, for the investigation of:

    . . . murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marijuana or other dangerous drugs, or other crime dangerous to life, limb or property and punishable by imprisonment for more than one year . . . or any conspiracy to commit any of the foregoing offenses.

    On its face, Title III covers the interception of only conversations that are capable of being heard by the human ear; data transmission, the video part of videotaping, pen registers, and other forms of communication are not covered. [S. Rep. No. 1097 at 90 (pen registers, etc., not included)] The statute also permits interception for official purposes where one of the parties to the conversation has consented to the interception; private interceptions where one party consents are also exempt from the statutory ban unless the interception is for a criminal, “injurious,” or tortious purpose. Evidence obtained in violation of the statute is excluded from all judicial or administrative proceedings, but only someone whose privacy was invaded can challenge the evidence.

    The Wiretap Act covered “aural” communications (that would be “voice” for those of use who don’t speak legalese). [18 USC § 2510(18) (aural transfer: "a transfer containing the human voice at any point between and including the point of origin and the point of reception")]. The problem here is that transmissions on data networks are not “aural” and therefore are not protected by the Wiretap Act. [United States v. Seidlitz] [See S. Rep. No. 99-541, at 12 (1986), reprinted in 1986 U.S.C.C.A.N. 3555; United States v. Torres, 751 F.2d 875, 885-86 (7th Cir. 1984) ("concluding that “silent television surveillance” cannot lead to interception of wire communications under Title III because no aural acquisition occurs").] Again, technology had surpassed the law.

    Foreign Intelligence Surveillance Act 1978

    Electronic Communications Privacy Act 1986



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