Police surveillance has come a long way since Prohibition, when Roy Olmstead, once the youngest and most promising lieutenant in the Seattle police force, organized the largest and most successful alcohol smuggling operations in the Pacific Northwest. He figured out a way to ship English liquor to Vancouver and then transport the contraband to Washington State. His thriving operation relied heavily on communication with smugglers, distributors and even officials by way of telephone. While this relatively new means of communication had led to his rise, ironically, it would also be the source of his downfall.
Olmstead v. United States was the first case in which the U.S. Supreme Court dealt with any type of electronic government surveillance in the face of the Fourth Amendment’s protection from unreasonable searches and seizures. Without a valid warrant, agents from the Prohibition bureau had wiretapped Olmstead’s phone from a neighboring building and, eventually, used the evidence that they collected to unravel Olmstead’s operation. The Supreme Court ruled that because the police intercepted Olmstead’s calls without trespassing into his home, there was no violation of the Fourth Amendment.
Almost a century after Olmstead, the way we live our lives has dramatically changed. Every day we transmit bits and pieces of information about ourselves into the ether. From Facebook and Google to Smartphones and GPSs, it seems almost impossible to keep anything private anymore.
Thus, one of the most challenging obstacles to the interpretation of the Fourth Amendment: How do we accommodate for new developments in technology? After all, considering the spectacular rate at which technology is advancing, tools which make gathering very specific information about any individual extremely easy are readily available. And, in the post-9/11 world, the government believes it has all the more reason to invade our privacy.
Last month, the Supreme Court in its 9-0 decision in United States v. Jones, addressed the issue of whether warrantless police use of GPS tracking devices to track our long-term moves constitutes a “search” within the meaning of the Fourth Amendment. Justice Antonin Scalia, writing the Court’s majority opinion, reasoned that warrantless attachment by the police of a GPS tracking unit to the car of Antoine Jones, the target of a narcotics investigation, constituted a physical invasion of an individual’s private property (a constitutionally protected area) and, therefore, amounted to a “search”. This was an application of Olmstead’s “trespass theory” of Fourth Amendment searches, which had largely fallen in to disuse over the years, as the Court had shifted towards a “reasonable expectation of privacy” test beginning in the 1960s.
This more recent test has proved to be somewhat malleable, allowing the Supreme Court considerable room to decide what is and what is not a “reasonable expectation of privacy.” But, in Justice Scalia’s mind, there is a glaring problem with the reasonable expectation of privacy test in a case like this: How is it possible to determine whether the Framers of the Constitution intended to protect us from intrusion by GPS tracking devices (or any other new technology, for that matter)?
But what about GPS tracking devices that do not involve a physical trespass (i.e. built-in GPS systems)? Would such GPS tracking also amount to government searches? How long does the GPS tracking have to take place to be unconstitutional? The Supreme Court decided to leave these questions for another day.
Nevertheless, four members of the Court believed there was a need to address these questions. Speaking for them, Justice Samuel Alito reached the same result as the majority, but differed sharply with its reasoning and the fact that, after the Jones decision, we are inevitably left with more questions than answers. According to Justice Alito, there are numerous examples today for which a trespass would not be necessary to constitute a search in connection with to government surveillance. He pointed out, we think correctly, that the trespass involved in attaching a device to Jones’s car was a minor matter, and the outcome should not have hinged on such a technicality, but on the extent and nature of the surveillance, which can only be tested in terms of a “reasonable expectation of privacy”.
Furthermore, trying to impose an 18th century solution on a 21st century problem is an exercise in futility – it completely fails to address the underlying problem of the rapid encroachment of technology on our privacy. Justice Alito jokingly asked us to imagine a constable hiding in a coach in 1791 (the year the Fourteenth Amendment was ratified) in order to monitor its owner’s movements.
Turning once again to Roy Olmstead, who, after serving four years in prison, was granted a full presidential pardon in 1935, we note that his case spawned one of the most noteworthy dissenting opinions in judicial history. Though heavily criticized at the time, Justice Louis Brandeis’s dissent in Olmstead that eventually became the law:
[The Framers of the Constitution] 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.
Moving forward, we should only hope that, at least the judicial branch of our government never forgets.