17 June 2013

On Privacy

Originally published on July 31, 2012.

No one law or right governs privacy in the United States. The word privacy doesn’t appear in the Constitution, and some skeptics even refer to it as a “so-called” right. But there is a basis for American privacy law, and a good place to start is the fourth item in the Bill of Rights, now known as the Fourth Amendment. “The right of the people,” the Fourth Amendment states, “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.” 

This right dates to the struggle against government abuse in the colonial era, when it was common practice for British officials to search homes and shops for smuggled goods. In 1761, Boston merchants questioned the legality of this practice—and the vague permits, or writs, that authorized it—arguing that it violated the colonists’ “natural” rights. So fierce was the sentiment against these searches that when Advocate General and Cape Cod native James Otis was ordered by his superiors to defend them, he resigned and represented the Boston merchants for free. Otis called the writs “a power that places the liberty of every man in the hands of every petty officer.” A man’s home was “his castle,” he argued, “and whilst he is quiet, he is well guarded as a prince in his castle.” Otis lost the case, and the British magistrate deemed the writs legal, but Otis won a reputation as a patriot. Among the spectators who saw his argument was a 25-year-old John Adams, later the architect of the Fourth Amendment.

In the centuries since, American privacy law has developed on the basis of much more than the Fourth Amendment, and has gone on to cover reproductive and sexual rights and even the distribution of commercial media, such as newspaper photographs and advertisements. At the same time, the concept of Fourth Amendment “privacy” has gradually expanded. The definition of “home”—and “papers and effects”—has broadened as courts have defined the reasonableness of searches and seizures, the meaning of “probable cause,” and what constitutes a “search” or “seizure” in the first place. 


The concept of privacy has also become bound up with changes in communications technology. During Prohibition, federal agents began using a new electronic device, the wiretap, that let them listen in on rumrunners’ conversations and use the overheard information to bust them—without a warrant. The practice came under legal scrutiny in 1924 when Roy Olmstead, a Seattle Police Department lieutenant and part-time bootlegger, was indicted along with some ninety others for conspiracy to violate the National Prohibition Act. At trial, prosecutors submitted wiretapped conversations; the defense argued that these violated the Fourth Amendment right to be free of unreasonable searches and seizures and the Fifth Amendment right against self-incrimination. The court sided with the prosecution; Olmstead went to prison.

Olmstead appealed, and his case reached the Supreme Court, which ruled in Olmstead v. United States that warrantless wiretapping was in fact constitutional. In his majority opinion, Chief Justice (and former President) William Howard Taft wrote: “The language of the [Fourth] Amendment can not be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office. The intervening wires are not part of his house or office any more than are the highways along which they are stretched.” While Taft’s opinion stated that the phone could not be considered part of one’s home as defined by the Fourth Amendment, it did allow that the legislature could draft a new law delineating the limits of a home in order to protect civilians’ conversations. “Congress may, of course, protect the secrecy of telephone messages by making them, when intercepted, inadmissible in evidence in federal criminal trials by direct legislation,” Taft wrote.

Like Prohibition itself, the decision was controversial. Justice Louis Brandeis wrote a blistering dissent, and a few years later President Franklin Roosevelt created a commission that led Congress to sponsor the legislation Taft had suggested. The Communications Act of 1934 became the basis for later Supreme Court decisions prohibiting warrantless wiretapping by federal agents. Like many other Prohibition-era convicts, Olmstead was pardoned on Christmas of 1935. 

The Communications Act hardly ended the debate over wiretapping. It made conversations obtained through warrantless wiretapping inadmissible as evidence in court, but it did not make all wiretapping without a warrant illegal. To the contrary, the Communications Act allowed a fair amount of warrantless wiretapping, at a time when the Roosevelt Administration was negotiating America’s role as a rising superpower and was all too aware of the executive’s constitutional power to defend national security with tools like surveillance. A catchall proviso, later referred to as the “national security exception,” authorized “the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of foreign powers, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities . . . or to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government.” This was a loophole the size of a fleet of surveillance vans, and FDR became the first of many presidents to authorize the government to spy electronically on its citizens. His FBI director, J. Edgar Hoover, proved a willing ally. Hoover authorized the phone tapping of thousands of civilians and civil rights activists and in 1943 looked the other way when the Army bugged the Chicago hotel room where Eleanor Roosevelt was staying with her lover, an Air Force sergeant and former Communist. 

The legal climate surrounding privacy legislation changed with the political climate of the 1960s. First, the Supreme Court expanded its reading of the Fourth Amendment in its 1967 ruling on Katz v. United States. The case revolved around Charles Katz, a bookie who conducted his gambling business via a telephone booth in Los Angeles. The FBI bugged the booth and learned what it wanted to know, and then arrested Katz. Katz’s defense team argued that a man’s phone booth is also, to some extent, his castle, and eventually the Supreme Court agreed. Katz had a “reasonable expectation of privacy” when visiting the phone booth, Justice Marshall Harlan wrote in the majority opinion, adding that the “Fourth Amendment protects people, not places.” Several months earlier, in a lesser-known case, New York v. Berger, the Supreme Court had overturned Olmstead

In January of 1971, US District Judge Damon Keith chipped away at the 1934 Communications Act loophole when he ruled that the surveillance of domestic acts with no evidence of foreign involvement violated the Fourth Amendment, and ordered the government to disclose conversations about the wiretapping of Black Panther offices in Berkeley and San Francisco. The government appealed. A year later—and, coincidentally, on the very day that five men were arrested for breaking and entering the Democratic National Committee headquarters at the Watergate building—the Supreme Court unanimously upheld Keith’s ruling. Justice Lewis Powell’s opinion revealed sympathy for the civil libertarian view that citizens need not be endlessly exposed to government monitoring. “The marked acceleration in technological developments and sophistication in their use have resulted in new techniques for the planning, commission, and concealment of criminal activities,” Powell wrote. “It would be contrary to the public interest for government to deny to itself the prudent and lawful employment of those very techniques which are employed against the government and its law-abiding citizens.” But, Powell went on to say, there is “deep-seated uneasiness and apprehension that this capability will be used to intrude upon cherished privacy of law-abiding citizens.

History abundantly documents the tendency of Government—however benevolent and benign its motives—to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security’ . . . The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. . .for private dissent, no less than open public discourse, is essential to our free society. 

Powell came down on the side of the citizens and also urged Congress to further develop the Fourth Amendment’s national security exception. Given the qualitative difference between “criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed.” Powell also mentioned the possibility of a “specially designated court” for sensitive cases. Like Taft’s opinion in Olmstead, Powell’s opinion—combined with the 1975 conclusions of Senate’s so-called Church Committee—led to a crucial piece of legislation. 


In 1978, President Jimmy Carter signed into law the Foreign Intelligence Surveillance Act (FISA), which established a separate, intricate legal process for gathering foreign intelligence through electronic surveillance, “without violating the rights of citizens of the United States.” The law sought to minimize the overlap between foreign intelligence and ordinary criminal cases. When President Carter signed the bill, he said that FISA, co-sponsored by Senators Ted Kennedy and Strom Thurmond, “sacrifices neither our security nor our civil liberties. And it assures that those who serve this country in intelligence positions will have the affirmation of Congress that their activities are lawful.”

The law created the Foreign Intelligence Surveillance Court, which since its founding has been located in a windowless, locked room in the Department of Justice building. Composed of federal judges appointed by the Chief Justice of the Supreme Court, FISC is a secret court; its proceedings deal almost exclusively with matters of national security targeting “foreign powers.” FISA requires that any intelligence agency seeking a wiretap request one from FISC. The hope was that clarifying the process would cut down on the surveillance gray area so abused by law enforcement at the height of the cold war. 

The results of FISA have been mixed. For one thing, an intelligence officer seeking a FISC warrant merely has to show that there is probable cause that the target is an agent of foreign power and that the information being collected is a “significant purpose” of the surveillance.. These requirements are more stringent if the monitoring involves a US citizen. In that case, the government has to establish probable cause that the person’s activities involved espionage or similar crimes. But FISC has not proved significantly more stringent about the surveillance it allows than previous authorities. If anything, it has been less so.

The Electronic Privacy Information Center recently ran the numbers from annual FISA reports. Between 1979 and 2010, intelligence services filed 30,348 surveillance applications with FISC. Amazingly, only eleven—or about .03 percent—of these were rejected. Not one underwent review outside the court. 


The Uniting and Strengthening America by Providing Appropriate Tools Required To Intercept and Obstruct Terrorism Act of 2001 (also known as the USA PATRIOT or Patriot Act) was passed in great haste by Congress in the wake of September 11, 2001, and amended FISA and other laws governing surveillance. A FISA judge could now issue a warrant based on certification that the information being gathered was merely a “significant purpose” of the surveillance, rather than a “primary purpose.” The “primary purpose” requirement was part of the wall separating FISA work from its potential use in domestic criminal cases (particularly by the FBI). But this wall was one of the reasons for the failure of information sharing between the FBI and CIA in the months leading up to the September 11 attacks, and so it became more porous. The government could now obtain information for a foreign intelligence purpose if an official could certify that the information was necessary to achieve a foreign intelligence purpose—even if the government’s “primary purpose” for surveillance was to use the information for a criminal investigation.

Before the Patriot Act, FISA would only allow a wiretap on a line in one location; now the roving wiretaps that narcotics detectives use when targets switch phones could be placed on targets without identifying a specific line, computer, or facility. (This happens to be consistent with the logic of the Katz decision that the Fourth Amendment protects—or doesn’t protect—persons, not places.) The government could now request even more records from telecoms, ISPs, doctors and others, and delay notification of certain searches so that they can be completed without the suspect’s knowledge. The Patriot Act also created National Security Letters (NSLs), an investigative procedure that allows the FBI and other agencies to demand the data and paperwork (including library records, websites visited, lists of email correspondents, and bank statements) of practically anyone, provided there’s probable cause that the target is a foreign agent, or, in the case of “US persons,” engaged in espionage or similar conduct. NSL targets don’t know that they are targets, and the people tapped by the government to give evidence against them, such as booksellers, universities, telecoms, and financial institutions, are threatened with criminal prosecution if they reveal that they have received NSLs. The gag portion of NSLs can be challenged in ordinary federal court, though it’s rare, and they do not require a showing of probable cause that a crime has been, is being, or will be committed.

When the Patriot Act was passed, many of its provisions had sunset clauses that would put them to rest several years later. But in 2006, President George W. Bush signed a bill that reauthorized most expiring provisions (libraries largely became exempt from being issued NSLs), and in May 2011, President Obama signed another extension, which ensured the continued lifespan of three key provisions and expanded their reach. Foreign intelligence gathering could now be conducted on “lone wolves,” people with no known ties to a foreign power or group. Section 215, known as the “tangible things” provision, would now allow investigators with a FISA court order to demand any record or “thing” they deemed relevant, from any third party. Finally, as with the Patriot Act of 2001, nothing FISC does would be subject to judicial review. In September 2011, the US Court of Appeals for the Second Circuit revived a challenge, brought by the ACLU and others. The complaint argued that the FISA Amendments Act of 2008 violates the Fourth Amendment and other constitutional rights because it permits the government to obtain wide swaths of communications based on targets that are categories, rather than individuals, as long as a “significant purpose” of the collection is to gather foreign intelligence. The Supreme Court will hear the case not on the surveillance issues, but on whether the plaintiffs have standing to litigate the case. 

The government has claimed that in the past decade at least fifteen terrorist plots have been averted thanks to roving surveillance, delayed notification searches, and inter-agency sharing of intelligence. But there have been abuses. Government audits have revealed that the FBI collected information, such as financial records, that it did not request or was not entitled to receive. In some situations, agents circumvented NSL applications or collected data even though their applications were rejected. The details of the specific cases (who was targeted, what information they received) are scant. At least two members of the Senate Select Committee on Intelligence have said that Section 215 has been misused, but for national security reasons, they can’t say how. Last month, FISC disclosed in a letter to one of those senators—Ron Wyden of Oregon—that the federal government on “at least one occasion” violated the Constitution’s ban on unreasonable searches and seizures without a warrant while employing its wiretapping authority. Additional details were not revealed.


At the same time that terrorist laws have widened, the amount of information people transmit about themselves on a regular basis has increased exponentially—and the laws have not been updated to reflect this development. In 1986, the Electronic Communications Privacy Act (ECPA) extended the 1968 Omnibus protections against wiretapping to “electronic communications.” This permitted the government to access stored emails and voice messages with a warrant. But there was an odd catch: files older than 180 days did not require a warrant. At the time, most ISPs maintained records of all transactions for a period of six months; the idea was that older emails would not be protected because they were more akin to transactional records held by a third party, which were subject to a different standard of protection. Remarkably, the ECPA is still the law of the land, and as a result the legislative framework for surveillance of emails, cell phones, cloud servers and other technologies that aren’t subject to FISA or the Patriot Act predates the internet and the widespread use of email and cell phones. In 1994, Congress passed the Communications Assistance for Law Enforcement Act to conduct surveillance on digital phone networks. It excluded internet data, but required telecoms and related manufacturers to ensure surveillance abilities. In 2004, CALEA was expanded so that web traffic and conversations could also be monitored. Most courts have declined to extend the Fourth Amendment to digital files stored by third parties, cloud computing servers, and mobile service providers, and also have ruled that cell phone location data can be obtained without a search warrant. 

But there has been some judicial grumbling. A handful of federal rulings recently extended Fourth Amendment protection to email. In 2010, in United States v. Warshak, the US Court of Appeals for the Sixth Circuit ruled that the Fourth Amendment protects emails older than six months. Steve Warshak ran a Cincinnati nutritional supplement company that sold Enzyte, an erection enhancement pill that featured a ubiquitous early morning television ad featuring Smilin’ Bob (the ads explained why Bob was smilin’). In 2006, Warshak was indicted on 107 counts of wire fraud, bank fraud, money laundering, and other crimes for, among other things, charging consumers for more Enzyte than they ordered—to the tune of $100 million. The federal government obtained court orders under the Stored Communications Act, which is part of the ECPA, to compel Yahoo! and the ISP NuVox to disclose Warshak’s old emails. Warshak’s lawyer sought an injunction to prevent them from being released, and the court sided with the defense. “Email users always have a reasonable expectation of privacy against the outside world in their email,” the Court opined, likening email to landline calls, sealed letters, and packages. “The fact that ISPs have the technical ability to access email doesn’t matter, any more than does the fact that the Post Office has the technical ability to break open your envelopes and read your postal mail.” The Court also held that a Terms of Service statement that email content is regularly accessed does not eliminate Fourth Amendment protection. This was a victory for email privacy (even though Warshak was sentenced to twenty-five years in federal prison). 


In January, the Supreme Court ruled on a pivotal GPS tracking case. The court’s analysis had roots in a 1983 case in which Minnesota law enforcement placed a primitive tracking device in a chloroform container that a group of suspects was transporting to a Wisconsin meth lab. The device helped the police follow the suspects, but the officers still had to physically follow them (the device had a signaling radius of just 100 feet). The Court ruled that there technically was no search:  “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” 

In the years since, tracking technology has advanced a great deal. In United States v. Jones, the United States Court of Appeals for the District of Columbia Circuit ruled that police officers violated the Fourth Amendment when they placed a GPS tracking device on the car of Washington, DC, nightclub owner Antoine Jones. The police, who previously had placed a camera outside Jones’s nightclub and tapped his phone, suspected Jones of dealing drugs and asked a court for a warrant to use an “electronic tracking device” to monitor his movements. The warrant was granted to do so within ten days, but the police apparently had trouble finding Jones’s car because they only put the GPS device on his Jeep Grand Cherokee on the eleventh day—and not in DC but in Maryland. So, the warrant had expired; there was no warrant. The police then tracked the vehicle for four weeks (at one point replacing the battery on the GPS while Jones’s car was in a parking lot). They never managed to find any drugs on Jones himself or in his car, but the GPS did indicate that he made visits to a “stash” house where police found ninety-seven kilograms of cocaine, one kilogram of crack, and nearly a million dollars in cash. Despite motions filed by Jones’s attorney, a DC court admitted the GPS tracking into evidence (excepting, somewhat absurdly, the times when the GPS indicated that Jones was at home) on the grounds laid out in the 1983 case: the vehicle was on public streets. A jury then found Jones guilty of conspiracy to distribute drugs, and a judge sentenced him to life in prison. Jones appealed and the circuit court granted relief. Using the “reasonable expectation of privacy” logic of the Katz case, the court found that the installation of the GPS device constituted a search because even if a person knows that his car is moving in public, that person expects that over the course of a month his movements will remain “disconnected and anonymous.” He has, in others words, a reasonable expectation of privacy. 

The government appealed the circuit court’s decision, and the Supreme Court agreed to hear the case. The justices unanimously agreed that sticking a GPS device on Jones’s car is a search under the Fourth Amendment, but did not rule on whether a warrant is required. The reasoning was split. In the majority opinion, Justice Antonin Scalia employed a property-based analysis, rather than an analysis of the long-term nature of the movements, and held that the police had trespassed on Jones’s “effects” (his car). “It is important to be clear about what occurred in this case,” Scalia wrote. “The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Scalia went on to quote the words of a 1765 ruling that stressed the sanctity of property. “The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to ‘the right of the people to be secure against unreasonable searches and seizures’; the phrase “in their persons, houses, papers, and effects’ would have been superfluous.” Scalia then went on to cite Olmstead approvingly and indicated that the Katz ruling, by attaching privacy to persons rather than property, had “deviated” from tradition. In any case, Scalia somewhat anticlimactically concluded, we need not decide now what the proper interpretation of the Fourth Amendment really is, since the Jones case could be decided on the simple basis of his property being unlawfully occupied.

In a withering concurrence, Justice Alito chided the majority for its narrowness. “This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique, the use of a Global Positioning System (GPS) device to monitor a vehicle’s movements for an extended period of time,” he wrote. “Ironically, the Court has chosen to decide this case based on 18th-century tort law. By attaching a small GPS device to the underside of the vehicle that respondent drove, the law enforcement officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels.” He wrote that “in circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative.” 

Other federal GPS tracking decisions have not favored Fourth Amendment protection. The US Court of Appeals for the Ninth Circuit ruled that Oregon law enforcement officers did not require a warrant when they placed a GPS device on a suspected marijuana grower’s Jeep, even though the vehicle was in his driveway, because the driveway was open to the public. It applied the analysis in the Wisconsin meth lab case, in which the suspects traveled on public streets and highways and therefore had no reasonable expectation of privacy. Following the Jones decision, the Supreme Court has instructed the Ninth Circuit court to reconsider the case. 

Several bills pending in Congress would have limited the government’s ability to track citizens through email and location data, and although none have passed (some are still pending), there seems to be a growing discomfort in some circles with current levels of surveillance and the collection, use, and release of personal data.  


The Patriot Act remains the law of the land, and the government has access to more personal information through more communication channels than ever before. Slowly, however, the tide is beginning to turn. The past ten years have seen numerous challenges to the FISA regime, sometimes with unexpected legal underpinnings.

One movement has been to apply First Amendment arguments. In 2003, the ACLU filed a lawsuit on behalf of six nonprofits with Muslim ties, arguing that Section 215, the “tangible things” provision, violates the First Amendment by imposing a gag order on individuals who are asked to provide information. By the time the United States District Court for the Eastern District of Michigan issued an opinion in 2006, Section 215 had been amended to permit subjects to seek legal representation and require the FBI to show that there are “reasonable grounds to believe that the tangible things are relevant to an authorized investigation.” 

Another 2003 case involved Section 805, which prohibits providing “material support and resources” to “terrorist activity” in the form of “expert advice or assistance” “derived from scientific (or) technical . . . knowledge,” among other means. In Humanitarian Law Project v. John Ashcroft, the Los Angeles-based law project, an administrative judge, several physicians, and others sued the federal government over its prohibition against their advising and supporting several NGOs that advocate for self-determination of Kurds and Tamils in Turkey and Sri Lanka. (The Justice Department had designated the NGOs foreign terrorist organizations.) The federal district court in California ruled that the government was enjoined from enforcing Section 805 on the plaintiffs because certain phrases, including “expert advice or assistance,” were so vague that they threatened to chill First Amendment freedoms. Upon appeal, however, the Supreme Court ruled 6-3 that the statute was not vague and not in violation of free speech rights because a person of ordinary intelligence can readily understand its meaning, which does not restrict content with which the government disagrees (“expert advice” that the US is a “totalitarian state”), but rather is aimed at conduct from which the government must protect its citizens (“expert advice” on how to build a bomb). 

Decisions like the Jones case, and related legislative efforts underscore that some judges and lawmakers are not ready to turn away from privacy protection. But the expanded privacy rights of the 20th century have with the transition to digital data become obsolete in many situations. As Justice Alito wrote in the Jones case, the Katz test “rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. But the technology can change those expectations. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile.” At the same time that Fourth Amendment protection has eroded, Alito and others have found privacy rights through the First Amendment, but their analysis is for the most part limited to situations in which political or religious information is disclosed. The question is whether the public cares enough about privacy to help restore what is becoming an old-fashioned ideal. 


As of August 1st, corrections have been made to this piece.

Image: from telegraph.co.uk

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