Times Have Changed For The 4th Amendment Or Have They?

4th Amendment

I have been working on a webinar (and a continuing legal education course) on Internet of Things (IoT) devices and how the 4th Amendment’s guarantee of a right to privacy applies to law enforcement access to IoT records, and stumbled upon this verbiage from a Supreme Court decision:

“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 secure possession of his papers and other articles incident to his private life . . . 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 . . . 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. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions.”

If I were to ask someone to guess the subject matter involved in the above case, they may guess a court challenge to the NSA’s data-gathering programs, or perhaps a case relating to law enforcement’s access to a person’s cell phone, or their cell site location records. Or perhaps the now famous 2012 Supreme Court case of US v. Jones, relating to law enforcement’s surreptitious installation of a GPS tracker on a suspect’s vehicle.

But if you guessed any of those options, you’d be off by almost 100 years. Yeah, that’s not a typo.

The language actually comes from Justice Brandeis’ dissenting opinion in case from the early 1900’s. One read by almost every law school student in their Constitutional law class; Olmstead v. United States. In this 1928 case, Roy Olmstead was accused of being the lead conspirator and general manager of a massive operation smuggling and selling alcohol during Prohibition. To further its investigation, the government wiretapped Olmstead and his co-conspirator’s home and office phones, and so the question presented was whether the 4th Amendment allowed the government to do this without a warrant (N.B. the Wiretap Act, which federal law enforcement uses today to secure authorization for a wiretap, didn’t yet exist). Surprisingly, at least by today’s standards, the Court held that no warrant was necessary because the 4th Amendment only protected “material things,” and because the evidence gathered by this new-fangled technological capability was secured by “a sense of hearing,” with no physical trespass, the 4th Amendment didn’t apply.

It wasn’t actually until over 40 years later when the Supreme Court found that government surveillance conducted by listening in on other people’s conversations was covered by the 4th Amendment, and thus a warrant was needed, in another famous Amendment case called Katz v. U.S. In Katz, the government attached a listening device to a public telephone booth to gather evidence to prosecute Katz for running an illegal gambling operation. Notably, Katz explicitly overruled the Olmstead case, and gave birth to a test we still use today to analyze whether the 4th Amendment applies to a given investigative action by the government. But it took over 40 years to get there. And in that time there were certainly some technological developments – to include color television, and the first commercial computer (both invented in the 1940’s).

But by today’s standards, 40 years in technology is eons. Facebook didn’t exist until 2004, and the first iPhone wasn’t even released until June 2007. Yet they are completely ubiquitous today, less than 2 decades later. In other words, technological development today is fast-paced, and getting faster – as predicted by Moore’s law – and Courts are being asked to apply our laws and Constitution at lightning speed. This, in turn, means 2 things.

First, we – as lawyers, as technology experts, as practitioners, and as parents – need to be more agile and dynamic in our thinking, and problem-solving. And second, that as much as we like to think that the legal challenges posed today by technologies like GPS tracking, cell-site location information, and Internet of Things devices are new and unique, they’re really not (well, the technology is unique, but the idea that technology is posing new challenges, in ways never before seen, isn’t really unique). Indeed, I’m willing to bet that if we could teleport back to 1920 and speak with the Supreme Court Justices, they’d express concerns about applying the law to new government surveillance technologies not much different than those today.

As the age-old adage goes: “everything old is new again.” Or as the Chinese proverb goes, “may you live in interesting times” (albeit, this one’s rumored to be more of a curse, than a positive message). Nonetheless, the sentiment of both is applicable today.

Joel Schwarz

Joel Schwarz is Managing Partner with the Schwarz Group LLC and an adjunct professor at Albany Law School, teaching courses on cybercrime, cybersecurity and privacy. He previously served as the Civil Liberties and Privacy Officer (CLPO) for the National Counterterrorism Center and was a cybercrime prosecutor for the Justice Dept. and N.Y. State Attorney General’s Office. Joel frequently speaks and writes on privacy matters (to include student data privacy and privacy in Education Technology), is a member of the Student Data Privacy Consortium (SDPC) and is Privacy & Security Vice-Chair of the Montgomery County PTA’s Safe-Tech Committee.