By: Sean Sung
Volume IX – Issue II – Spring 2024
I. Introduction and Basis of Privacy
The United States policy for privacy originates with the Bill of Rights, the Fourth Amendment, which states that 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.” [1] The founders’ reasoning for having the Fourth Amendment was in response to England’s search policy. England had general warrants and writs of assistance, which allowed officials to not only search but follow individuals without reasonable cause or a warrant. [2] These laws and traditions were used to harass political enemies. [3] The Founding Fathers wanted to reinforce the newfound democracy and avoid the silencing of political dissent by making the Fourth Amendment. There are a few key aspects of the amendment. First is to be secure against unreasonable search, meaning that law enforcement needs adequate reasoning and evidence to search someone. The second key aspect is that the search is protected from persons, houses, paper, and effects, which is mostly focused on physical materials and body. The third key aspect is the precise description of what is being searched, which was intended so that law enforcement did not expand the limits of a search warrant. These three key aspects of the Fourth Amendment have led to different theories of interpretation for new privacy cases, especially with the rise of new information technology. New technology has increased methods for law enforcement to gain information in their searches while individuals have new, sometimes opaque methods of sharing data about themselves that they might not necessarily want revealed.
I will be discussing the formation of original property rights theory in Olmstead v. The United States and its evolution to the reasonable expectation of privacy test in Katz v. The United States. I will then explore theThird Party Doctrine from Smith v. Maryland, revised property rights theory from The United States v. Jones and exceptions to Third Party Doctrine established in Carpenter v. The United States.
II. Original Property Rights Theory
Property Rights Theory originates from the Fourth Amendment stating that physical materials and the body are protected. In 1928 Olmstead v. The United States, federal agents suspected Roy Olmstead for violating prohibition laws with an illegal liquor company. Federal agents installed wiretaps on phone lines in front of Olmstead and his associates’ business and home. The evidence from those wiretaps led to Olmstead’s arrest. Olmstead appealed the decision based on his Fourth Amendment rights; because federal agents did not get a warrant for the wiretaps, their evidence from personal conversations on the phone should not be admissible in court. In a 5-4 decision, the Supreme Court decided that the wiretaps were constitutional and its evidence admissible because of Property Rights Theory. [4] Because the Fourth Amendment stated that no searches and seizures can be made for “persons, houses, papers, and effects,” searches done outside of the body or property are not violations of privacy stated by the Fourth Amendment. The government did not trespass on any property or take any physical evidence. However, Justice Louis Brandies disagreed with the court decision, writing that the Fourth Amendment has to evolve with the new technologies that arise with time. [5] He said that the spirit of the Fourth Amendment must be protected, not the specifics of the Fourth Amendment that the Founding Fathers could not have accounted for. In 1928, the government could retrieve information that is not just physical material. This interpretation of the Fourth Amendment would not be questioned until 1967 as the widespread use of phones only increased the likelihood of such a dispute from happening again.
III. The Reasonable Expectation of Privacy Test and the Electronic Communications Privacy Act
In 1967, Charles Katz was arrested for transmitting gambling information over the phone while FBI agents had listening devices in the phone booth. However, the FBI did not have a warrant to place those listening devices. He was brought to court while the recordings of the gambling transmissions were played as evidence. Katz appealed the decision to the Supreme Court, which decided in a 7-1 decision that Charles Katz’s phone call was protected by the Fourth Amendment. [6] The Supreme Court wrote in the final decision that Charles Katz had a reasonable assumption of privacy in the phone booth, so the evidence from the listening device could not count. Even though law enforcement made no physical invasion, the spirit of the Fourth Amendment was broken, which was the protection against unreasonable government intrusion. Katz v. The United States is a complete reversal of Olmstead v. The United States almost 40 years earlier. In those 40 years, the massive growth of the phone booth and its necessity in the country led to its avoidance being impossible. Additionally, two years before Katz v. The United States, the Supreme Court decided in a 7-2 decision in Griswold v. Connecticut that the Fourth Amendment did mean for a right to privacy and that the state cannot track or prevent the use of contraception by married couples. [7] Before Griswold v. Connecticut, the Fourth Amendment did not necessarily mean a right to privacy, but the case ensured the amendment’s interpretation as such. [8] It is no surprise that such an interpretation of the Fourth Amendment would then be used on Katz v. The United States. Justice Brandeis' concern about the Fourth Amendment was realized with Katz v. The United States. The reasonable expectation of privacy test would evolve with technology as reasonable expectations change. However, the formation of such a test was uniquely subjective. The Property Rights Theory was grounded by four words in the Fourth Amendment: persons, houses, papers, and effects. Law enforcement only had to worry about those four things up until 1967. Reasonable expectation was up to lawyers, juries, and judges to determine, leaving the precedent of Katz v. The United States as unsustainable with a lot of variability in court decisions.
As a protection against any abuse of Katz v. The United States, Congress passed the 1986 Electronic Communications Privacy Act, also known as the ECPA or Wiretap Act. [9] The act listed significant limitations on what third parties can use to get information. Its most significant impact was the list of offenses that wiretaps can be used for in 18 U.S. Code § 2511, including but not limited to murder, kidnapping, extortion, bank fraud, and sex trafficking. [10] Additionally, law enforcement already needs reasonable cause for them to get a warrant. The act restricted wiretaps so that agencies cannot listen to protected conversations that were not warranted, another key aspect of the Fourth Amendment. Again, the spirit of the Fourth Amendment was extended. Lastly, the act also extended such reasonable expectation of unlawful search to other electronic communications, like emails and texts. A prior case and following cases would interact with the Electronic Communications Privacy Act significantly.
IV. Third Party Doctrine and End-to-End Encryption
In 1979, before the Electronic Communications Privacy Act, Michael Lee Smith was arrested for robbery and for making threatening phone calls. He was accused of robbing Patricia McDonough, who also got unwarranted phone calls. Police discovered a car, and its license plate belonged to Smith. When police contacted his telephone company for phone records, the telephone company gave up the records, showing that Smith was the one calling McDonough. [11] Smith appealed to the Maryland Supreme Court on the basis that he had reasonable expectation of privacy with the phone calls like with Charles Katz, which would declare that phone records be illegally obtained. However, a key difference between Smith v. Maryland and Katz v. The United States is that law enforcement used phone records against Smith while law enforcement used recordings against Katz. [12] The court ruled that it is common knowledge that telephone companies keep records of when calls are made and between who. While recordings are not kept, the records are kept by a third party. The court furthermore stated that because the record information was with a third party and that third party gave up the information to law enforcement, that information was now admissible in court. [13] The reason Katz’s recording would still be inadmissible in court would be because third parties would not hold those recordings, and law enforcement had to place the listening devices themselves, not get the information from a third party. It should be noted that if the third party with the record did not hand consent to handing over the information, then that information would still not be admissible in court unless law enforcement obtained a warrant to search and seize that evidence. Because privacy could be destroyed by third parties, the new rule was called Third Party Doctrine. The court decision enhanced the fear of privacy because secrets could be spilled by one person. Additionally, information like phone records could be used in court as long as the telephone company allowed it, which they typically did because they did not want to face legal troubles with the government. With the Internet being developed at this time and the official birthday of the Internet being less than four years later, there are more methods of revealing information to unintended third parties. [14] These opaque methods of revealing information led to special provisions in the Electronic Communications Privacy Act, which prevented emails and texts from being searched unlawfully. Even with the ECPA, the protection around electronic communications was not strong enough to appease certain technologies companies.
That led to the creation of end-to-end encryption. End-to-end encryption refers to the communications systems that allowed two parties to communicate with the data being fully encrypted, meaning that any third party or unintended recipient of that information would not be able to access the data. The creation of end-to-end encryption was a way to get around Third Party Doctrine by limiting the information accessed by third parties. A rising debate around end-to-end encryption erupted between privacy experts and law enforcement. Law enforcement used to be able to go to these technology companies en masse to ask for data. With end-to-end encryption, they are no longer able to go to one third party. Law enforcement now has to go to the individuals communicating through these technology companies to retrieve information. While end-to-end encryption has made it harder for law enforcement to collect data, encryption has protected privacy more. An example of the debate would be the Apple v. FBI encryption dispute. In 2015, a shooter in San Bernardino, California, escaped and left behind an iPhone at the crime scene. It was protected by a four digit password, which had Apple’s special feature on the phone. It deleted the contents of the phone after a certain number of failed attempts. [15] The FBI asked Apple to create a custom operating system to disable the encryption on the iPhone, which Apple refused to do, indicating the violation of privacy. The FBI argued that such a request would only happen once for a good cause, and Apple countered saying that it is a violation of customer trust while setting a bad precedent. [16] Ultimately, the FBI decrypted the phone themselves without Apple’s help and found nothing of use on the phone. The debate was left unsettled around the legality of encryption. The Third Party Doctrine, which started the entire debate, would also face revision with Carpenter v. The United States.
V. Revisted Property Rights Theory
In 2005, Antoine Jones was arrested for drug possession because law enforcement attached a GPS tracker to his car without a warrant for a month. [17] The jury found him guilty, but he appealed his way to the Supreme Court based on the fact that the GPS on his car without a warrant meant a violation of his right to privacy. The Supreme Court ruled in an unanimous decision that the unwarranted GPS tracker was a violation of privacy under the Fourth Amendment. However, their reasoning was unexpected. They rejected the reasonable expectation of privacy test because a car driving in public meant no reasonable expectation of privacy. They also rejected Third Party Doctrine because anyone in the public could see Jones’ car, meaning a third party has knowledge of the car’s location. The Supreme Court went back to Property Rights Theory, stating that the GPS was a violation of the physical, personal property of Antoine Jones. Without a warrant, that GPS tracker would be illegal. [18] The Supreme Court not only revised an older interpretation of the Fourth Amendment, the justices wrote over more modern interpretations of privacy to justify it. That brings Property Rights Theory, the reasonable expectation of privacy test, and Third Party Doctrine into consideration in every case around privacy. In The United States v. Jones, only one of these interpretations resulted in the conclusion that privacy was violated for Antoine Jones, but that still resulted in the overall decision still ruling that privacy was violated. However, in Smith v. Maryland, reasonable expectation of privacy test concluded that privacy was violated, but the overall ruling for the case was that privacy was not violated. That raises the question, which interpretation of privacy should courts use, and which theories have precedent over others? That question still has no concrete answer.
VI. Exception to Third Party Doctrine
In 2011, four men were arrested for armed robbery, and the FBI used their phone numbers to track their transactional records and Cell-Site Location Information. [19] Every time a phone is used, it connects to a cell-site location, and the data collected from the cell tower records time, location, connection, and more. The FBI had a judge grant orders to gather that information under the Stored Communications Act, but not warrants. [20] The FBI used this information to allege a conviction, but Timothy Carpenter and the others sued based on the violation of their Fourth Amendment rights. In a 5-4 decision, the Supreme Court decided that the use of cell site location information was a violation of the Fourth Amendment based on the reasonable expectation of privacy theory. [21] The reasoning from Justice John Roberts was that in the digital age, everyone has a cell phone, and the allowance of such data in court without a warrant would be devastating to privacy. Not only does he claim to protect the spirit of the Fourth Amendment, he also says that the reasonable expectation of privacy changes with time, and no precedent has to justify changing expectations of privacy. The justices did not apply Third Party Doctrine because it applies to voluntary exposure. They said users may be aware of cell phone providers’ logs, but it is not an active choice by the user, which would also be a contrast with Katz v. The United States. All four dissenting justices wrote a dissenting opinion. Justice Kennedy claimed that cell site location information is no different than any other business record, and those business records would not be protected under Third Party Doctrine. Justice Thomas and Justice Gorsuch reemphasized Property Rights Theory, stating that all privacy cases should be based on Property Rights Theory and searches of physical evidence. Justice Alito stated that it was not right for a defendant to object to a search of a third party’s property. Not only has the Supreme Court reorganized the power dynamics between the different privacy theories, they also made loopholes in the Third Party Doctrine.That decision left many questions unanswered, especially facing the new advancements in technology and information sharing and tracking.
VII. Conclusion
The evolution of privacy law has tried to maintain the spirit of the Fourth Amendment: to ensure a healthy democracy, to prevent an oppressive government, and to ensure political diversity. However, that has led to many questions and an increasingly variable decision-making process in privacy law. With new advancements in information sharing, surveillance, neural networks, and more, these privacy laws will only grow more complicated with more methods of interpreting the Fourth Amendment. Individuals have many ways of unintentionally sharing data about themselves. While I agree that the spirit of the Fourth Amendment has to be upheld, a debate has arisen over what exactly is protected. Not everything can be protected under the reasonable expectation of privacy as that can go too far. However, Third Party Doctrine can no longer be upheld either because of new technology being used in everyday life that tracks individuals’ information. Only future court cases can adjust for new interpretations of constantly changing privacy situations.
Endnotes
[1] United States Creator. Bill of Rights. [Place of Publication Not Identified: Publisher Not Identified, -09-25, 1789] Image. https://www.loc.gov/item/2021667570/.
[2] “Constitutional Amendments – Amendment 4 – ‘the Right to Privacy,’” Ronald Reagan Library, accessed April 18, 2024, https://www.reaganlibrary.gov/constitutional-amendments-amendment-4-right-privacy#:~:text=At%20the%20time%20of%20its,the%20colonies%20and%20in%20England.
[3] Ibid.
[4] Olmstead v. United States, 277 U.S. 438 (Jun. 4, 1928)
[5] “Olmstead v. United States (1928).” National Constitution Center – constitutioncenter.org. Accessed April 18, 2024. https://constitutioncenter.org/the-constitution/supreme-court-case-library/olmstead-v-united-states#:~:text=In%20a%205%2Dto%2D4,%2C%20physical%20effects%2C%20or%20home.
[6] Katz v. United States, 389 U.S. 347 (Dec. 18, 1967)
[7] Griswold v. Connecticut, 381 U.S. 479 (Jun. 7, 1965)
[8] "Griswold v. Connecticut." Oyez. Accessed April 18, 2024. https://www.oyez.org/cases/1964/496.
[9] “Wiretapping.” Legal Information Institute. Accessed April 18, 2024. https://www.law.cornell.edu/wex/wiretapping#:~:text=The%20case%20recognized%20that%20wiretaps,Act%20(ECPA)%20in%201986.
[10] “Can Police Tap My Phone?” Law Offices of Daniel McGuinness, August 10, 2016. https://newyorklegaldefense.com/can-police-tap-my-phone/#:~:text=The%20Wiretap%20Act%20prohibits%20the,the%20government)%20from%20wiretapping%20telephones.
[11] "Smith v. Maryland." Oyez. Accessed April 18, 2024. https://www.oyez.org/cases/1978/78-5374.
[12] Smith v. Maryland, 10 U.S. 286 (Jun. 20, 1979)
[13] Ibid.
[14] “A Brief History of the Internet.” A brief history of the internet. Accessed April 18, 2024. https://www.usg.edu/galileo/skills/unit07/internet07_02.phtml#:~:text=January%201%2C%201983%20is%20considered,Protocol%20(TCP%2FIP).
[15] “Apple v. FBI.” EPIC. Accessed April 18, 2024. https://epic.org/documents/apple-v-fbi-2/.
[16] Ibid.
[17] "United States v. Jones." Oyez. Accessed April 18, 2024. https://www.oyez.org/cases/2011/10-1259.
[18] United States v. Jones, 565 U.S. 400 (Jan. 23, 2012)
[19] "Carpenter v. United States." Oyez. Accessed April 18, 2024. https://www.oyez.org/cases/2017/16-402.
[20] “18 U.S. Code Chapter 121 - Stored Wire and Electronic Communications and Transactional Records Access.” Legal Information Institute. Accessed April 18, 2024. https://www.law.cornell.edu/uscode/text/18/part-I/chapter-121.
[21] Carpenter v. United States, 138 S. Ct. 2206 (Jun. 18, 2018)