THE PROTECTION OF “PRIVACY”

  Olmstead was finally overruled, in 1967, in a case involving gambling rather than booze. Charles Katz was one of the leading college basketball handicappers of his day; not only did he call college basketball games well, he also bet on them. To elude the authorities—wagering on interstate wires is and was a federal offense—Katz had a routine. When placing a bet, Katz would go to a group of three public telephones on Sunset Boulevard in Los Angeles, and randomly pick one of them to make his call. In this day of cellular communication, public phone booths like the ones Katz used, tall narrow cubes made of glass with a closing door for privacy, are a dying breed.22

  The FBI nailed Katz by tapping the pay phones. With the telephone company’s knowledge, agents placed one of the three phones out of order. Then, the federal agents put a listening device on top of, and between, the remaining two booths. When Katz came down to place his bets, one agent signaled another to activate the listening device.23

  Ushering in the modern era, the Katz Court concluded that henceforth in determining whether the government had conducted a “search,” the question would not be whether it had physically intruded onto property, but instead if it had violated one’s “privacy.” “For the Fourth Amendment protects people, not places.” The government had argued that any notion of privacy was foolhardy in Katz: after all, the man had stepped into a cube of glass, readily visible to all around him. “But,” the Court responded, “what he sought to exclude … was not the intruding eye—it was the uninvited ear.” “One who occupies [a phone booth], 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.”24

  PRIVACY’S PROTECTION EVAPORATES

  Soon enough, though, things went south again. Although the Court was prepared to conclude that the Fourth Amendment’s new focus on privacy banned warrantless wiretapping, it has had a very difficult time defining what else the concern for privacy ruled out.25

  Under what became known as “the Katz test,” whether something is a search or not depends on whether the government invaded a person’s “reasonable expectation of privacy.” That’s the key phrase. The Katz Court said that “[w]hat a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” At the same time, though, “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”26

  Superficially, this “knowingly exposes” test makes sense. Just as it is reasonable to expect privacy for some activities in a public space, like using a pay phone, even in a private place, privacy can be forgone. If you stand in front of a plate glass window in the middle of the day, with pedestrians and police about, and murder someone, you can’t really “reasonably” expect the people to avert their eyes and ignore this, even if it is in your own home. You’ve “knowingly exposed” your actions for the world to see.

  Ultimately, though, the Supreme Court’s attempt to identify police activity that violated our “reasonable expectations of privacy” collapsed. Two things killed it. The first was the justices’ inability, which we have seen consistently, to stand firm anytime a majority of them perceived that protecting our personal security might limit the government’s ability to control crime. The second was a flood of new technologies.

  It came to pass that no matter what law enforcement did to get itself into position to spy, the Supreme Court would conclude people had “knowingly exposed” their conduct. In California v. Ciraolo, an anonymous tipster told the police that the defendants were growing marijuana in their backyard. The defendants had erected not one, but two fences—the outer one at six feet, the inner one at ten—clearly strong measures to keep the backyard private. Conceding that no one could see in from street level, the Supreme Court nonetheless said that the fences “might not shield these plants from the eyes of a citizen or a policeman perched on the top of a truck or a two-level bus.” Of course, that isn’t what the police did—how frequent are double-decker buses in Santa Clara, California? Rather, they “secured a private plane” and flew over the house at 1,000 feet. Still, the justices decided by a 5–4 vote, the defendants had no “legitimate expectation of privacy” because they had “knowingly exposed” their backyard to the public view: “Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed.” Really? The chance that someone would look out of a commercial plane, recognize marijuana, manage to connect that to the specific street address, and decide to notify the police was, as the dissenters pointed out, “virtually nonexistent.” “It is no accident,” they said, “that, as a matter of common experience, many people build fences around their residential areas, but few build roofs over their backyard.”27

  Similarly, in California v. Greenwood, the justices signed off on the police searching through people’s trash on the equally imaginary ground that by putting it out for municipal collectors, the defendants “exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection.” It “is common knowledge,” the justices said, that “plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.” Once again, though, none of that had happened. Rather, the defendants had put their trash out on the curb in opaque bags, precisely as the law required them to do. The police had asked the trash collector to nab the defendant’s trash and hand it over to them; they then pawed through it. Had “animals, children, scavengers” or “snoops” strewn the Greenwood trash in the yard so that police or others had seen drug paraphernalia, the government would not have been complicit. But given what actually happened, it is a bit hard to know what the justices meant when they said, “[T]he police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public.”28

  The GPS tracking of Abdo Alwareeth was built on a similarly shaky foundation. United States v. Knotts, decided in 1983, was the first case to sign off on electronic location tracking. Acting on a tip that someone was buying chemicals used to manufacture drugs, the police arranged for a beeper to be placed in a canister of the chemicals, so that after it was picked up they could follow it to its destination. The beeper led the police to a drug lab. The justices said tracking the car containing the chemicals was fine because “[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” The automobile driver, according to the justices, had “voluntarily conveyed” his whereabouts “to anyone who wanted to look.” Yet again, though, this is not what happened. The police lost track of the canister at one point, hardly a surprise given that the driver, deliberately attempting to keep his whereabouts private, engaged in “evasive maneuvers.” So the police used a helicopter to relocate the beeper signal. Obviously, members of the public are not flying around like the Jetsons in helicopters tracking one another.29

  The cake, though, may well go to Chief Justice Burger’s opinion in yet another overflight case, in which the justices approved the government’s taking pictures inside a Dow Chemical facility after plant officials refused access. The lower court described how the government employed the “finest precision aerial camera available,” which cost more than $22,000, and was mounted on an aircraft “able to ‘provide photographic stability, fast mobility and flight endurance for precision photography.’” Seeking to make this seem utterly ordinary, the majority described it as a “standard floor-mounted precision aerial camera.” Explaining the Chief Justice in blasé fashion: “The photographs at issue in this case are essentially like those commonly used in mapmaking. Any person with an airplane and an aerial camera could readily duplicate them.” Indeed.30

  The problem with the justices’ approach in these cases should be apparent. The Fourth Amendment only kicks in where people have a “reasonable expectation of privacy”; that expectation does not exist if we “knowingly expose” what we are doing to the public. Fair enough so far. But if by “knowingly expose” it means “[a]ny person with an airplane and an aerial camera,” can see us, or the government can install a beeper and follow us via helicopter, it is clear we are not going to have much in the way of Fourth Amendment rights at all.

  BACKPEDALING AGAINST TECHNOLOGY

  More recent years have seen the justices, frightened by the shadow of their own creation, backpedaling. But even when the justices appear to take the idea of constitutionally protected privacy seriously, they still have something going against them: technology. Modern technology is effectively erasing the distinction so critical in Katz: between what we knowingly expose to the public and what we seek to keep private. And it is this problem that the Supreme Court cannot seem to get its collective head around.

  In approving the use of the beeper to track the car in Knotts, the justices explained that the Fourth Amendment did not prohibit the police from “augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them.” “Insofar as respondent’s complaint seems to be simply that scientific devices such as the beeper enabled the police to be more effective in detecting crime … [w]e have never equated police efficiency with unconstitutionality.”31

  The question is how far one allows law enforcement to go in “augmenting” human senses before it becomes a search requiring at least a warrant and probable cause. After all, that is exactly what technology does. In Katz itself, hadn’t the agents simply “augment[ed]” their “sensory faculties” by putting a tap on the phone to improve their ability to overhear what Katz was saying as he placed his bets? If there are no limits on the ability of law enforcement to use technology to augment its faculties, we will have no privacy left.32

  The first serious attempt by the justices to restore privacy in the face of advancing technology came in Kyllo v. United States, a 2001 case involving the use of a thermal heat detector. Acting on a tip that Kyllo was growing pot at home, officers used an Agema Thermovision 210 to detect a high level of infrared radiation coming off one part of the roof. This suggested Kyllo was using grow lamps. Armed with that, the tip, and Kyllo’s utility bills, they then got a warrant. Four members of the Court were up to their old tricks. “All that the infrared camera did,” they said, was what “the ordinary use of the senses might enable a neighbor or passerby” to do—notice the heat emanating from a building. As if a passerby on the street could somehow sense the heat from the grow lamps coming off the roof.33

  The five-person Kyllo majority, though, with Justice Scalia writing the opinion, tried to put limits on law enforcement using technology to “see” inside our homes. Absent a warrant, the Court held, police could not employ “sense-enhancing technology” to obtain “any information regarding the interior of the home” that could not otherwise have been obtained without being physically present inside.34

  The problem is that, like a radioactive isotope, Kyllo’s seemingly rights-protective opinion will necessarily decay. That is because of a critical caveat Justice Scalia added to his test. The ban on sense-enhancing technology to discover what goes on in a house, he wrote, holds only so long as “the technology is not in the general public use.”35

  Given the current pace of technology, soon everything law enforcement possesses might be “in general public use.” Thermal heat sensors are readily available for purchase—there’s even a smartphone app. Go ahead, google it. Justice Scalia himself dropped a footnote in Kyllo to point out that the Department of Justice was working on new surveillance technology, including a “Radar Flashlight” that “will enable law enforcement officers to detect individuals through interior building walls.” Drones already are flying all over the place: Does that mean the government is now free to hover them outside our windows and over our backyards?36

  Ultimately, though, it was Abdo Alwareeth’s bête noir, GPS tracking, which made clear the limits of the Supreme Court’s ability to protect our privacy. In United States v. Jones, the government had attached a GPS device to a suspected drug dealer’s car, tracking him for a month, using satellites that gave the car’s location within 5–100 feet, collecting “more than 2,000 pages of data.” Was this a search? Didn’t Knotts allow the tracking of vehicles?37

  Although the justices decided unanimously that the GPS tracking in Jones was a “search,” they found themselves unable to agree on a reason for that result. Hemmed in by the Knotts beeper case, which they did not overrule, and which had held that we have no expectation of privacy in our whereabouts on public streets, the justices splintered on the question of what exactly the government had done wrong. They could not even say how much GPS tracking was too much.38

  Justice Scalia—who again wrote for the majority in Jones—went back to the future: because government agents had “physically occupied private property for the purpose of obtaining information” (i.e., installed a GPS device on his car) this was a search. If that sounds just like Olmstead, it should. Katz, he explained, added privacy to the list of things protected by the Fourth Amendment, but it did not take away the importance of actual invasions of property rights in determining whether something was a search. Basically, because the police had trespassed by installing the beeper to track Jones, it was a search.39

  While this sounds promising—now we have more protection, i.e., privacy plus immunity from physical intrusion—in reality it (like his test in Kyllo) offers cold comfort. The government already no longer needs to rely on physical intrusions to track us; most of us carry our GPS trackers in our pocket in the guise of cell phones. The government has installed television cameras in thousands of locations, and many police cars have them also. These systems already are being used, in combination with license plate recognition technology, to determine the whereabouts of individuals. Our own cars have onboard computers that record our location, and we use toll payment systems that do the same.40

  But at least Justice Scalia had a test. The concurring justices, led by Justice Alito, simply threw up their arms. Reiterating that under Knotts “relatively short-term monitoring” of location on public streets poses no constitutional problem, Justice Alito concluded that “use of longer-term GPS monitoring in investigations of most offenses” crossed the line. But he could offer no clue where the line is between “relatively short-term” and “longer-term.” He didn’t say which of “most offenses” could not be uncovered by long-term GPS surveillance, and which could. The opinion was altogether noteworthy for its inability to say anything specific about what the government could or could not do. The Jones decision has left the lower courts in utter disarray as to what sort of location tracking—or any other use of technology for that matter—constitutes a “search.” 41

  In his Jones opinion, Justice Alito did make an extraordinarily important point about how the decreasing cost of technology was likely to leave us all vulnerable to government spying. “In the pre-computer age,” he explained, the greatest impediment to government spying was resources: “Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken.” He’s right. In 1954, Los Angeles’s police chief said keeping a suspect under “constant and close surveillance”—as was done to Jones and Alwareeth—would be “not only more costly than any police department can afford, but in the vast majority of cases it is impossible.” Such surveillance, Justice Alito pointed out, would involve “a large team of agents, multiple vehicles, and perhaps aerial assistance.” For that reason, it would happen only in “an investigation of unusual importance.” But no more. “Devices like the one used in the present case … make long-term monitoring relatively easy and cheap.” 42

  The problem is clear: the prevalence of increasingly inexpensive technology eliminates the distinction between what we keep private and what we display in public, be it on the street or in the supposed privacy of our homes. Location tracking reveals where we are at all times. Malware, mikes, and cameras make it possible to see and hear us whenever we are near a computer. Radar and thermal devices reveal our movements and our possessions. Overflight haunts us. In technology’s hands, we have neither privacy, nor what the Fourth Amendment really protects: security, in our “persons, houses, papers, and effects.”

  THE OTHER KATZ SOLUTION: SOCIAL CONVENTION

  For all the apparent confusion it created, Katz also contained the seeds of a solution.

  Katz can be read as making social convention determinative of when we have a reasonable expectation of privacy. In other words, one interpretation of the Katz decision is that whether the government is conducting a “search” that requires it to have probable cause, and get a warrant, properly rests on societal norms about when we all ought to be able to expect to have our privacy respected. “The critical fact in this case,” wrote Justice Harlan in Katz, “is that [o]ne who occupies” a telephone booth, “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.” “Surely entitled” is big talk, but it was not at all out of place—because everyone in Katz knew what the social norms of the time were. You went into that phone booth precisely to get the sort of privacy that people would then afford you.43