Katz v. U.S.

This case is no more about "a fundamental right to engage in homosexual sodomy," as the Court purports to declare than Stanley v. Georgia was about a fundamental right to watch obscene movies, or Katz v. United States was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about "the most comprehensive of rights and the right most valued by civilized men," namely, "the right to be let alone." Olmstead v. United States (Brandeis, J., dissenting).

- Justice Blackmun (Bowers v. Hardwick dissent)

I am concerned that Landmark Cases skipped from Plessy to Griswold [about 70 years] and then has a bunch of Warren Court cases (including one with many Warren justices).  This was one case (since Mapp v. Ohio was already handled last time) that I thought might be optional. But, one of the guests (the other came for a law school named after Scalia, but even more so than last week, a conservative flavor was not really felt) -- Jeffrey Rosen of the National Constitution Center -- specifically asked for this one. This is not surprising given he wrote (in 2000) The Unwanted Gaze: The Destruction of Privacy in America. And, it is important in firmly establishing a modern view of Fourth Amendment privacy with some other interesting touches.

The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offense, it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment.

Boyd v. U.S. (1886) provided a broad view of the Fourth Amendment, the case itself involved compelling submission of invoices for plate glass for which import duties were not paid. A broad respect for the spirit of the amendment continued into the early 20th Century with repeated application of the exclusionary rule. A stopping point here was the 5-4 Olmstead [1928] bootlegging case that held electronic surveillance that does not involve physical invasion into a protected area (such as a home) was not covered.

The Amendment itself shows that the search is to be of material things -- the person, the house, his papers, or his effects. The description of the warrant necessary to make the proceeding lawful is that it must specify the place to be searched and the person or things to be seized.  ...

The United States takes no such care of telegraph or telephone messages as of mailed sealed letters. The 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.

Each justice in the minority wrote an opinion (Justice Stone basically said he agreed with the various dissents) with three worthy of note. The famous dissent was Brandeis' with his paean to a right to privacy, not just protection of "material things."  Holmes, after tossing out "penumbra," focused on the criminality of the search under state law.  Butler, a conservative that also dissented in the infamous Buck v. Bell case without opinion agreed a liberal reading should be given though he did not think the fact it broke state law was relevant in the specific case:

Telephones are used generally for transmission of messages concerning official, social, business and personal affairs, including communications that are private and privileged -- those between physician and patient, lawyer and client, parent and child, husband and wife. The contracts between telephone companies and users contemplate the private use of the facilities employed in the service. The communications belong to the parties between whom they pass. During their transmission, the exclusive use of the wire belongs to the persons served by it. Wiretapping involves interference with the wire while being used. Tapping the wires and listening in by the officers literally constituted a search for evidence. As the communications passed, they were heard and taken down.

This is a strong statement that warrants further recognition especially with the so-called "third party doctrine" where sharing information (such as bank records) supposedly limits the privacy protected and obtaining the materials requires a weaker test.  Likewise, the importance of a broad protection of privacy is shown by the nature of the conversations, including with family members, lawyers and so forth. See, e.g., Justice Sotomayor's concurring opinion in U.S. v. Jones.  And, the reach offered here as applied to listening to words and tapping of wires is not as open-ended as Brandeis, but provides a reasonable understanding of the text.

The concerns of the dissent influenced some congressional limits on the collection of electronic information shortly thereafter.  In time, justices started to be concerned about the Olmstead rule itself, particularly Justice Douglas. Silverman v. United States in the early 1960s dealt with a wire that did invade a protected area, but it was granted that intangibles -- words -- could be "seized, " something reaffirmed in a state case (Berger v. New York) written by the often conservative author of Mapp v. Ohio.  Justice Clark spoke about the privacy the amendment protected as well.

What [Katz] sought to exclude when he entered the booth was not the intruding eye—it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, in a friend's apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.

The path for a clean break from Olmstead was therefore in hindsight fairly clear though the discussion on the show said that it was not so clear at the time (Justice Marshall, who worked as Solicitor General, did not take part; a 4-4 uphold was early on quite possible).  A lawyer involved in the case provided some input and further written remarks referenced. What we don't learn is what happened to the guy after the ruling,* which made clear to say that he was still liable for prosecution. Also involved in the case is famous criminal lawyer (including in pornography cases) Burton Marks, who missed a typo in the briefing ("a man has as much right to bet [be] alone in a public telephone  booth as in his own home").

The opinion focused on personal privacy even though -- as one guest notes -- it makes the listing ("persons, houses, papers, and effects) somewhat redundant. The framing is helpful when we remember this case involved applying a listening device on the top of a public phone booth.  In U.S. v. Jones, Justice Scalia favored a property based right here and Judge Gorsuch raised that idea in a case this term as well even where it seemed something of a reach (and having somewhat troubling implications).  A property based right can have broad reach in certain ways but might also in other not protect privacy rights in general. Depending on how it's applied; consider Harlan's broad understanding in Poe v. Ullman.

My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, 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."

The article by the lawyer who argued the case describes the crafting of his argument, which provides an interesting wrinkle.  As with Harlan's dissent in that opinion becoming how the right to privacy was understood, his concurrence in Katz had important staying power. There continues to be pushback -- Scalia and Gorsuch saw such a test opaque. And, there is a concern that the public can over time think less privacy is necessary.  In today's world, people readily accept giving up loads of information and have open conversations on their phones on public buses.  I think on some level this is unavoidable -- "reasonable" is right there in the amendment and like other text reflects current understanding.

Note the two aspects of Harlan's test -- the person has a subjective understanding that what they are doing is private and it is protected if it is objectively (this is implied) deemed reasonable by society.  Justice Harlan later on in U.S. v. White emphasized what this means:

The interest On Lee fails to protect is the expectation of the ordinary citizen, who has never engaged in illegal conduct in his life, that he may carry on his private discourse freely, openly, and spontaneously without measuring his every word against the connotations it might carry when instantaneously heard by others unknown to him and unfamiliar with his situation or analyzed in a cold, formal record played days, months, or years after the conversation. Interposition of a warrant requirement is designed not to shield "wrongdoers," but to secure a measure of privacy and a sense of personal security throughout our society.

The case referenced involved placing a Dictaphone against a wall and the plurality here accepted that Katz means that something like that can violate the Fourth Amendment. The issue in this specific case, however, was a miked informant. The felt need to obtain a warrant in that case (the special matter of someone with a current right to lawyer, after arrest, was different) was not deemed reasonable. Justice Douglas repeatedly broadly was concerned about electronic eavesdropping, seeing it as a form of "general warrant."  This along with Brennan and Marshall dissenting is not really surprising. Justice Harlan, here near the end of his life, is a bit different.

Since it is the task of the law to form and project, as well as mirror and reflect, we should not, as judges, merely recite the expectations and risks without examining the desirability of saddling them upon society. The critical question, therefore, is whether under our system of government, as reflected in the Constitution, we should impose on our citizens the risks of the electronic listener or observer without at least the protection of a warrant requirement.

He would require the warrant rules to be followed.  The "desirability" here in the context of a judicial opinion would require respecting the overall obligations of the Constitution as a whole. The debate continues.

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* Footnote Three specifically addressed this issue, noting that he had immunity when he testified to a federal grand jury, but that only applied to later prosecutions. The opinion also said there was enough evidence to obtain a proper warrant; the problem being rules requiring judicial approval were not properly followed.  It is not surprising the the author originally was planning to vote the other way. 

A final curious aspect was that Justice Stewart wrote the opinion and said there was no "general right to privacy." This at least partial narrowing of Griswold was ignored by Justice Douglas and the other justices, though Douglas concurred to address another point. The opening quote shows that such a limiting view was not shared by all though it does help explain why the "penumbra" approach was replaced by an individual liberty argument.

Douglas (with Brennan) concurred to make clear he rejected White's own concurrence implying "national security" matters should follow different rules. This matter was never firmly decided though lower courts have assumed so as applied to FISA warrants.