The Fourth Amendment to the United States constitution guarantees that citizens of the United States shall be free from unreasonable searches and seizures by the federal government. At first glance this guarantee seems incompatible with high-profile government surveillance programs, like those conducted by the National Security Agency.
Surprising as it may be, the Supreme Court’s current interpretation of the Fourth Amendment actually makes the NSA’s data collection permissible. However, a recent case decided by the Court shows a willingness to rethink, and possibly expand, the Fourth Amendment’s protections in the age of high-tech surveillance.
This article will explain why the NSA’s programs don’t currently violate the Fourth Amendment and the recent case which may signal a shift in the Court’s thinking.
Why the NSA’s Surveillance Doesn’t Violate the Fourth Amendment
While the Fourth Amendment protects citizens from warrantless government searches, it does not apply to every circumstance. The Fourth Amendment says that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated …” The Fourth Amendment obviously applies to “persons, houses, papers, and effects,” but what about places outside the home, like a phone booth?
In Katz v. United States (1967) Charles Katz used a public payphone booth to place bets for his illegal gambling operation. The police put a microphone on top of the booth and recorded his conversation, and used the recording of the conversation to convict him. The Court held that the recording violated the Fourth Amendment’s prohibition on unreasonable searches because Mr. Katz had a “reasonable expectation of privacy” in the phone booth.
After Katz, the key issue in determining when a warrantless search violated the Fourth Amendment was if the search violated a person’s reasonable expectation of privacy.
The 1979 case Smith v. Maryland paved the way for NSA data collection by holding that people do not have a reasonable expectation of privacy in many types of information that they transmit out of their homes. In Smith, a woman was robbed and afterwards received harassing phone calls from the robber, but his identity remained unknown (remember: 1979 predates caller ID). The police suspected Mr. Smith of being the robber and harassing caller. The police asked the phone company to install a device called a “pen register” on Mr. Smith’s line at the phone company’s offices. A pen register makes a record of all the phone numbers dialed by a particular phone line, but records no other information. The pen register recorded Mr. Smith dialing the number of the robbery victim. The police used this information to get a warrant to search Mr. Smith’s home where they found evidence that led to his conviction.
The Court held that the use of a pen register did not violate the Fourth Amendment. The Court reasoned that “even if [Mr. Smith] did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not one that society is prepared to recognize as ‘reasonable.’ This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”
Under Smith’s reasoning, information that citizens convey to third parties is subject to warrantless search because citizens lack a reasonable expectation of privacy in data they turn over to others. Thus a person lacks a reasonable expectation of privacy in information they share with their bank, send via e-mail, and communicate to their cell phone carrier. Obviously, this reasoning is inconsistent with our normal intuition: when we place a call, we hardly think of ourselves as making some kind of public disclosure of the number we are calling.
Potential Changes In the Scope of the Reasonable Expectation of Privacy
The Supreme Court has recently been willing to think differently about the scope of the reasonable expectation of privacy in an era where the government is equipped with unprecedented surveillance powers.
In Antoine Jones v. United States the government obtained a warrant to attach a GPS to a car registered to Antoine Jones’s wife. The government eventually installed the GPS on the car, but did so after the warrant had expired and in a different state from where the warrant was issued, rendering the warrant invalid. The government tracked the vehicle’s movements for 28 days, and used the information to convict Jones of drug trafficking. Jones argued that attaching a GPS to his car without a valid warrant violated the Fourth Amendment. All nine justices agreed that Jones’s Fourth Amendment Rights were violated, but they disagreed about why.
The five justice majority believed that Jones’s Fourth Amendment rights were violated because the government attached something to Jones’s property and used that device to track him.
The four justice minority, however, believes that when the government uses electronic surveillance to gather data about someone, the sheer volume of that data can violate that person’s reasonable expectation of privacy. In the minority’s view, the simple act of cataloging every single movement of Jones’s car during a four-week period violated Jones’s reasonable expectation of privacy, regardless of whether or not the government actually interfered with his property.
The four justice minority’s position is significant because it is a departure from previous cases. Historically, a person didn’t have a reasonable expectation of privacy with respect to things they did in public, like driving around on public streets. However, the minority in Jones has essentially held that when the government uses technology to aggregate information about a person’s movements, the government violates that person’s reasonable expectation of privacy. While a person might not have a reasonable expectation of privacy in where he or she went during a particular car trip, according to the minority he or she has a reasonable expectation that the totality of their movements won’t be aggregated in one place by the government.
The four justice minority’s opinion could, perhaps, pave the way for a re-thinking of Fourth Amendment law. If Jones had a reasonable expectation of privacy in his complete movement history for a four week period, it seems possible that people might have a reasonable expectation of privacy in the detailed records of their lives that the government can aggregate from digital sources. While a person might not have a reasonable expectation of privacy in one phone number dialed, or an individual financial transaction, he or she could very well have a reasonable expectation of privacy in the totality of his or her digital activities, just as Jones had, according to the minority, in his complete travel history. Therefore, it is at least conceivable that the Supreme Court might hold that broad surveillance technologies, like those deployed by the NSA, violate the Fourth Amendment rights of American citizens.
Thank you to Gregory Schulz for providing this article. Gregory is one of the great legal minds working at our law firm and we appreciate his effort and skill.