However, there is a historical skepticism of government power that we, as Americans, generally continue to hold. Our entire founding story revolves around violently overthrowing the reign of a distant monarch who exercised arbitrary power. A notable portion of the Declaration of Independence is essentially a laundry list of grievances: “He has refused his Assent to Laws, the most wholesome and necessary for the public good.”
In a world that can be and is so easily monitored and recorded by government authorities, we as a society have abrogated our responsibility. Here, I mean habeas data beyond the literal legal meaning: we ought to reveal the government’s vast stores of data to the public eye so that it can be scrutinized. After all, for nearly 250 years, our primary shield against government overreach has been ourselves.
“If men were angels, no government would be necessary,” James Madison wrote in February 1788. “If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
Now in the early twenty-first century, we are left with some lingering questions: Can the government force a company to act on its behalf—creating entirely new security-breaking software—simply by citing an obscure eighteenth-century law? Do we really relinquish all rights to data that we must give up to a cell phone provider, with cell phones a near-necessity in the modern world? Can law enforcement use a machine capable of tracking coarse or precise location data indefinitely without showing probable cause of a crime? Without a warrant, can police use an extrasensory machine to peer into the four walls of a home to learn about what is going on inside? What kinds of protections can and should we have over something as basic as e-mail? Should police use an invasive device that tricks our cell phones without adequate regulation or oversight from the public? Can cops search our phones without a warrant, potentially reaching into the most intimate of modern devices? Can or should they break the encryption on our phones?
This is a struggle that is happening all over the country, from the highest echelons of federal law enforcement, to the most local of police. Today, small towns across America already have LPRs and inexpensive drone units. Tomorrow, they will have standard facial recognition on all body-worn cameras, and perhaps even specialized hacking units—near-future digital SWAT teams. Unless we demand more from those who are sworn to uphold the law and protect us from the worst of our fellow citizens, this problem will only get worse.
Rather than wait years or decades for another Carpenter-like case to arrive at the Supreme Court, some communities—notably Oakland, California—have decided to take matters into their own hands. It is possible for city officials, activists, and even the police to talk about the realities of modern law enforcement and come up with a way for all sides to agree.
CHAPTER ONE
Telephones: How a Fateful Call in 1965 from a Los Angeles Pay Phone Still Rings Out Today
If a statute were to authorize placing a policeman in every home or office where it was shown that there was probable cause to believe that evidence of crime would be obtained, there is little doubt that it would be struck down as a bald invasion of privacy, far worse than the general warrants prohibited by the Fourth Amendment. I can see no difference between such a statute and one authorizing electronic surveillance, which, in effect, places an invisible policeman in the home. If anything, the latter is more offensive because the homeowner is completely unaware of the invasion of privacy.
—JUSTICE WILLIAM DOUGLAS
CONCURRENCE, BERGER v. NEW YORK (1967)
October 16, 1967
Washington, DC
As the door slammed shut in his Washington, DC, hotel room, Harvey Schneider sat alone with his thoughts for the first time that day.
His boss, Burton Marks, had just gone out for the evening to visit his in-laws in nearby Virginia. Although Marks, 37, wasn’t that much older than Schneider, he gave the impression that he was. Marks had an established law practice on Wilshire Boulevard in Beverly Hills. He wore well-pressed suits. He commanded courtrooms all over Los Angeles. Still, to save money, the two men shared a hotel room.
Marks, one of the top criminal defense lawyers in Southern California, seemed relatively unconcerned about the fact that the two of them were about to appear the next day before the Supreme Court of the United States. Nor, seemingly, was Marks worried about letting his young, recently-out-of-law-school protégé make the opening arguments to the court. After all, it was Schneider who had come up with a new legal theory that would challenge conventional privacy law and surveillance practices of the era.
Just one day earlier, Schneider had been formally admitted to the Bar of the Supreme Court. Marks, who had appeared before the court a year before (Douglas v. California [1966]), had to go through the perfunctory procedure to get his younger colleague admitted.
Schneider stared down at his notes, strewn across his makeshift desk. It was like preparing for an exam, only the stakes were higher. And unlike most, if not all, modern-day Supreme Court oral argument preparations, Schneider and Marks had not engaged in moot court, or a mock hearing, involving other lawyers playing the part of the justices.
Thus, Schneider would have been shocked at the time to know that their case, Katz v. United States, was to become, decades later, a landmark decision in the history of American surveillance and privacy law. It established a key phrase—“reasonable expectation of privacy,” which has now served as the legal underpinning of a substantial portion of Fourth Amendment law for the last 50 years. In essence, it is shorthand for determining whether something is considered to be a search under the Fourth Amendment. After all, the Constitution does not prohibit all searches, but simply unreasonable ones. What exactly is considered a search has been a matter of debate since the founding of the Republic. Whether a particular surveillance technology or technique is permitted often hinges on this question, and others that derive from Katz.
Marks returned around midnight, fumbled about, and promptly collapsed in an exhausted heap on one of the beds. Schneider looked up, but didn’t say a word. He went back to his notes.
Eventually, Schneider got himself to bed, but he barely caught a few hours sleep. This wasn’t like a championship basketball game—years earlier, he’d been a guard on various youth teams. Appearing before the Supreme Court was every lawyer’s dream, especially younger ones.
The next morning was Tuesday, October 17, 1967. Marks and Schneider suited up and walked over to the Supreme Court. It was a warm, clear day in the nation’s capital.
Schneider was confident, but a little nervous. As the two lawyers walked into the imposing column-fronted building, they passed under the inscription “Equal Justice Under Law.” They made their way to the main courtroom. As the pair began to get set up for the 10:00 AM oral argument, a marshal of the court approached.
“If you’re caught in the middle of oral arguments, would you like to have lunch?” the marshal asked the two lawyers. They agreed—having lunch at the Supreme Court sounded stupendous. (This turned out to be much less grandiose than they had imagined: during the lunch break, Marks and Schneider were treated to “two little turkey sandwiches” at the end of a large dining table, with the only other person nearby being the marshal standing guard outside the room.)
The courtroom filled up, and the court was called to order. In walked eight justices—Thurgood Marshall, who had left the Office of the Solicitor General to join the Supreme Court just two weeks earlier, had recused himself from hearing the case as he represented the government’s side in earlier filings. They took their places on the raised podium behind a desk, flanked by American flags on either side. The justices sat down, one by one.
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Suddenly, the marshal called out:
The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!
Chief Justice Earl Warren, a native Californian, presided over the court. By then, Warren was nearing the end of his influential 16-year tenure as the head of the nation’s highest court. As chief justice, he had led the liberal majority in landmark cases like Brown v. Board of Education (1954), which eliminated racial segregation in schools nationwide. Before that, Warren had been governor of California, after being the state’s attorney general. Before that, he served as district attorney of Alameda County and began his legal career as deputy city attorney of Oakland.
“Number 35, Charles Katz, Petitioner versus United States,” Warren intoned flatly, in his tinny, high-pitched voice.
He paused for a few seconds and waited for Schneider to begin.
“Mr. Schneider?”
Schneider approached the lectern, and quickly glanced at the justices who sat several feet away, and saw giants: Warren, Hugo Black, William Douglas, John Harlan, Byron White, William Brennan, Potter Stewart, and Abe Fortas. They were all more than twice as old as he was.
“Mr. Chief Justice, and may it please the Court,” Schneider began. His voice did not waver. He looked straight ahead at the justices.
The facts of this case that is now before the Court are really quite simple. The law applicable is something else again. But the facts are as follows. Mr. Katz was surveilled by agents of the Federal Bureau of Investigation for a period of approximately six days. During that period of time, the surveillance was conducted by the use of a microphone being taped on top of a public telephone booth or a bank booth, so it was actually three booths.
“One booth had been placed out of order by the telephone company and with the telephone company’s cooperation, the other two booths were used by Mr. Katz,” he continued, building a rhythm.
The courtroom was silent.
“Sometimes he used one booth, sometimes he used another,” Schneider read from his notes.
The tape was placed on top of the booth or the microphone was placed on top by a tape. The FBI Agents had undoubtedly read their homework and had not physically penetrated into the area of the telephone booth. Subsequently after about six days of surveillance, Mr. Katz was arrested. He was then taken to his apartment building where his room was searched under a search warrant and numerous items were seized from Mr. Katz’s apartment. The issues before the Court are fairly clear. One, whether or not, the search and seizure or one of the interceptions of the telephone communications was proscribed by the Fourth Amendment; and two, whether or not, the warrant that was used to search his apartment building is constitutionally proper or constitutionally defective.
After a few minutes of back-and-forth with Stewart and Warren, Schneider drove right to the heart of the matter.
Surprisingly, Schneider largely abandoned the entire question that the court was being asked to consider: Was a telephone booth a constitutionally protected area? If so, does the government necessarily need to physically trespass into it in order to violate the Constitution?
Avoiding this was a highly unusual move. No doubt the justices were a little bit surprised at the sharp left turn.
“We think and respectfully submit to the Court that whether or not, a telephone booth or any area is constitutionally protected, is the wrong initial inquiry,” Schneider declared.
Schneider proposed a way to evaluate such a situation.
“It’s an objective test which stresses the rule of reason, we think,” he continued. “The test really asks or poses the question: ‘Would a reasonable person objectively looking at the communication setting, the situation and location of a communicator and communicatee—would he reasonably believe that that communication was intended to be confidential?’ ”
Or put another way, could that “reasonable person” have a reasonable expectation of privacy?
* * *
The 1789 Bill of Rights enshrines a number of rights to individuals: freedom of speech, freedom of religion, the right to bear arms, and so forth. The Fourth Amendment protects against unreasonable searches and seizures. However, nowhere in the Bill of Rights, or in the Constitution, is the word “privacy” mentioned. But scholars, lawyers, judges, and others have intuited, or extrapolated, something resembling a privacy right from both documents.
Government overreach was certainly on the minds of the Framers of the Constitution. In the 1760s, American colonists were very much aware of the invasiveness of British authorities. At that time, a writ of assistance was issued by British courts as a way to combat smuggling. Unlike a modern warrant, these writs, also known as general warrants, allowed nearly anywhere to be searched. Worse still, they lasted for the lifetime of the King under which they were issued, and nearly always, in practice, could not be challenged.
In 1761, a 36-year-old lawyer, James Otis, Jr., represented dozens of Boston merchants, who argued that their rights had been violated by Charles Paxton, a British customs agent who had used writs of assistance against them. In a famous five-hour argument, Otis argued before the Superior Court of Massachusetts that “every one with this writ may be a tyrant.”
He continued:
Now, one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.
While Otis lost the case, his oratory made a lasting impression on a young John Adams, then 26, who observed in the courtroom. The 1776 Declaration of Independence itself refers briefly to this practice, in its laundry list of grievances against King George III: “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.”
Fifteen years later, the Framers, and in particular James Madison, were so put off by the idea that anyone’s home or business could suddenly be searched by a government agent that such protections were distilled into the single—albeit lengthy—Fourth Amendment, which was ratified in 1791:
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.
For well over a century, the Fourth Amendment right largely turned on the notion of a physical trespass. The idea, simply, was that it was the physical act of invading someone’s private space that was so offensive to the Framers. It is still fundamental to our reading of the Fourth Amendment —the police cannot kick in your door without a warrant absent exigent circumstances.
But in the nineteenth century, new notions of what constituted an invasion of privacy began to develop—for example, the idea of invading someone’s privacy through the telegraph line was patently offensive. Thus, in 1862, California became the first state in the union to formally outlaw the tapping of telegraph lines.
And in 1928, the Supreme Court considered its first telephone wiretapping case, the case of Olmstead v. United States. Roy Olmstead was a Seattle police officer turned bootlegger whose phone had been tapped, leading to his arrest. No warrant had been issued for the tap. (In an interesting side note, Mabel Walker Willebrandt, who served as assistant attorney general from 1921 until 1929
and served as the lead prosecutor at nearly all Prohibition-related cases, refused to represent the government at the Supreme Court because she opposed the use of the wiretap evidence.)
Ultimately, the court found that it didn’t matter if federal authorities had wiretapped Olmstead’s phone without a warrant. Writing for the majority opinion in a 5–4 decision, Chief Justice William Howard Taft concluded that the government had not violated Olmstead’s Fourth Amendment rights, essentially, because there was no physical trespass on his private property. This focus on the physical infringement rather than moral trespass—honoring the letter, if not the spirit of the Founders, one might say—would haunt privacy cases in the county for nearly a century.
“The [Fourth] Amendment does not forbid what was done here,” Taft wrote, noting that by that point, the telephone was 50 years old. “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.”
In essence, the Supreme Court did not want to impose a new law where it felt Congress or the Constitution had not specifically authorized them to. (This is a common reasoning of many conservative judicial opinions, that the courts should not have an expansive view of the law. Rather, they should simply stick to what the law actually says. By contrast, liberal judges generally view the Constitution as a “living document”—its meaning can be reinterpreted over time to accommodate modern realities.) But by the 1920s, both telephones and wiretaps were decades-old technology. The law, then as now, often struggled to keep up with the common realities of the day.
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