Habeas Data_Privacy vs. The Rise of Surveillance Tech

by Cyrus Farivar

  Arguing the question of trespass was surely to fail, because, again, the microphones were on top of, and not in, the phone booth. Plus, asking the court to consider that a public phone booth was a constitutionally protected area was a dicier proposition. After all, unlike taxis and hotel rooms, phone booths are wholly transparent to the outside world. Whether the court, even the liberal-leaning Warren Court, would find this to be private nonetheless, was not a slam dunk.

  Schneider thought that the justices might have an easier time adopting a new test of sorts: whether a person in a telephone booth would reasonably expect to have privacy inside of a phone booth. Immediately after this epiphany, Schneider rushed over to Marks’ office.

  * * *

  During the oral argument at the Supreme Court on October 17, 1967, Schneider quickly floated this idea of a reasonable expectation of privacy.

  “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?’ We think that in applying this test there are several criteria that can be used.”

  Justice Brennan, an influential liberal justice, jumped right in: “So that parabolic mic on the two people conversing in the field a mile away might—” (Brennan’s comment appeared to reference a combination of two cases: Hester v. United States [1924] and Silverman. In Hester, the Supreme Court found that the Fourth Amendment does not apply to open fields, even when that land is within a person’s private property. In Silverman, the Supreme Court had referred to the parabolic microphone as one type of “frightening paraphernalia” that could be used to conduct ever-more-invasive types of surveillance at a distance.)

  Schneider didn’t miss a beat.

  “Absolutely,” he said. “And I think that Hester, the Hester case which is cited on the Government’s brief, we think that Hester is wrong.”

  Schneider’s voice slowed down and rose towards the end of the sentence, as if to be gentle with the notion that he wanted the Supreme Court to upend Hester. (Ultimately, the court would decline to overturn it in its Katz decision.)

  “We think that if a confidential communication was intended and all the other aspects of confidentiality are present, then it makes no difference whether you’re in an open field or in the privacy of your own home,” Schneider continued. “We would submit to the Court that there are factors present which would tend to give the Courts, the trial courts, and ultimately this Court, some guidelines as to whether or not, objectively speaking, the communication was intended to be private.”

  Part of the analysis, Schneider went on to argue, should be determined on various factors, such as the location of the conversation—was it surrounded by other people, or not? Was the person speaking in an unusually loud tone of voice?

  And then Schneider really drove home his argument.

  And again, I—we—feel that the emphasis on whether or not you have a constitutionally protected area may be placing the emphasis on the wrong place. We feel that the Fourth Amendment and at the Court’s decisions recently for a long time, I believe, have indicated that the right to privacy is what’s protected by the Fourth Amendment. We feel that the right to privacy follows the individual.

  This was the crux of Schneider’s stunning point: that an affirmative right to privacy is not necessarily contingent on where a person is—here, the question of trespass was irrelevant.

  * * *

  Then, it was the government’s turn to present its arguments. That duty fell to John S. Martin, Jr., 32, newly appointed assistant to the Office of the Solicitor General of the United States.

  Martin called Schneider’s arguments a “radical change in the concept to the Fourth Amendment,” and argued that under the Goldman standard—no penetration of the phone booth itself—that eavesdropping was wholly justified. Law enforcement did not need to get a warrant, he explained, and so the agents didn’t even attempt to. In the government’s eyes, the case was that simple.

  Martin got into an extended discussion with Chief Justice Warren about the specific design of phone booths, pointing out that, after all, phone booths are not soundproof.

  Warren foiled his assertion: “Well, not many homes are soundproof.”

  To which Martin replied that in a phone booth, people don’t “expect” to be “protected in that area as you are in your home.”

  “Perhaps not as much but you certainly expect it to be private and you don’t talk to the world, when you talk on the telephone there, do you?” Warren said.

  “No, of course, you don’t,” Martin continued, explaining that anyone passing by a phone booth might overhear a conversation. In other words, Martin argued, the law should not recognize the same level of core, innate protection, as is the case when someone is at home.

  The justices seemed generally skeptical of the government’s view. Chief Justice Warren asked Martin to speculate as to why, in some places, there were specific booths as opposed to just banks of phones. In the end, Burton Marks himself had the final minutes for rebuttal—and he closed on the question of the phone booth glass.

  “I submit that if the Court wants to make a test, go and sit in some phone booth, the one at the Sunset Boulevard, it’s the ordinary type with a little glass door,” Marks said.

  “Just sit in it and listen next door and see if you can hear a person and determine what he is saying in an ordinary conversational voice. I submit that you cannot so hear and that there was intended to be privacy and this right of privacy of the individual should be respected.”

  The case was submitted. As the justices went into conference, it wasn’t necessarily obvious to Schneider and Marks how it was going to turn out. Justice Fortas, for example, who was a secret advisor to President Lyndon Johnson, thought that there shouldn’t be any restraining of the government’s power when it came to national security.

  “[Fortas] didn’t draw any distinction between informers who were wired for sound and electronic devices that were planted in someone’s property,” Laurence Tribe told me in an interview. Tribe, now a well-known Harvard Law professor, had been a clerk for Justice Potter Stewart at the time. “He thought that if you don’t physically invade something it shouldn’t require a warrant and it was not because of his analytical view of the Fourth Amendment—it was his practical sense of law enforcement.”

  At first blush, without Justice Marshall participating, the case seemed likely to split 4–4, which would have meant that the 9th US Circuit ruling—against Katz—would have stood. The Olmstead standard, based on physical trespass, would essentially remain intact. Justice Douglas was perturbed by the fact that such warrantless eavesdropping was essentially like a general warrant—it lacked specificity. Chief Justice Warren, by contrast, having served as a local prosecutor and also as California’s attorney general, was mindful of the needs of law enforcement and the necessity for tools like this.

  In Tribe’s telling, the mood was indeed rather tense. Justice Stewart, a centrist Republican jurist, was prepared to affirm the 9th Circuit’s ruling. The court was simply not prepared to overturn the Olmstead and Goldman precedents.

  At the age of 26, Tribe was one of the younger clerks. He had just started that fall, fresh off of another clerkship at the California Supreme Court, which he’d taken on immediately after completing Harvard Law School.

  Tribe hadn’t attended oral arguments during Katz, but he was familiar with the crux of both sides’ arguments. He had read their filings, the transcript of the oral arguments, and studied the case law. His job was to help Justice Stewart formulate and draft his opinion, which would be circulated amongst the other justices for review.

  During the period of “conference” where the justices discuss privately how they might rule, Tribe approached Justice Stewart. The young lawyer wanted to change his boss’s mind. But by that point, Justice Stewart had been on the court for nearl
y a decade and was set in his ways. Plus, it was Justice Stewart who had famously dissented in 1965 in Griswold v. Connecticut, where he wrote that he did not believe that the Bill of Rights, nor the Constitution, nor “any case ever before decided by this Court” afforded a “general right of privacy.” Still, Tribe was undeterred.

  “I had a little bit more spunk at the time than I did in years since,” Tribe recalled. “Even though I was wet behind the ears, I had the tenacity or the chutzpah to say: ‘Mr. Justice, it would be terrible if the case were affirmed by an equally divided court—the law is in a chaotic condition.’ ”

  But Stewart wouldn’t have it.

  “I don’t need a lecture from one of my law clerks on this,” he said. Stewart and the other justices had made up their minds. The case was about to split, along predictable lines. “This case is going to be decided on Monday, without opinion. Get over it.”

  Tribe was undeterred. He stayed late one night and prepared a draft opinion. Stewart was incensed, and almost threatened to fire the young lawyer.

  “Larry, you’re new here,” Stewart told him. “The Dragon Lady has made her decision.”

  “Dragon Lady” was the nickname the justices had given Margaret McHugh, Earl Warren’s secretary. What Stewart meant was that she had already officially recorded the justices’ votes. The circuit court’s ruling on Katz was going to be upheld.

  “This is a great opportunity to overrule Olmstead and rip the Fourth Amendment from its no longer plausible moorings in ancient property concepts,” Tribe recalled feeling. “And so I said ‘Would you give me a chance over the weekend to see if I can come up with a draft of something that could persuade people on both sides?’ ”

  “Don’t make a nuisance of yourself,” Stewart retorted. Still, he gave Tribe until Monday. If this new opinion didn’t impress Stewart, then the original plan—a 4–4 split—would stand.

  On Monday, Stewart read Tribe’s draft. After a few beats, he told Tribe: “Let me think about this. Actually, it’s conceivable.”

  As Tribe explained years later, his “idea had to do with actually recognizing that something is a search when [there are] justifiable intrusions of privacy needn’t mean that it would automatically be impermissible. It was a blueprint for the kinds of electronic surveillance warrants that would be required. We [didn’t] have to decide [then] where there might be exceptions for national security concerns. It was designed to deal with the concerns of White, Fortas, and maybe Douglas.”

  This argument largely tracked with Schneider’s arguments, but was designed to appease the concerns of the conservative wing of the court.

  A few days later, Tribe got his own memo from Stewart: “Larry, the indication is AF [Abe Fortas] will join our Katz opinion, excepting only with reservations as to how we say that there is no constitutional right of privacy.” This note currently hangs in Tribe’s office at Harvard Law School.

  Even Chief Justice Warren wrote in a one-sentence memo to Stewart: “I am happy to join your opinion, and I believe that it will be a milestone decision.”

  What Tribe presented was largely what ended up being the majority opinion in Katz.

  “For the Fourth Amendment protects people, not places,” the 7–1 opinion from December 18, 1967, states, echoing some of the language that Schneider had laid out. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”

  Justice Harlan, in a concurrence, outlined a specific two-part test:

  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.” Thus, a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsiders are not “protected,” because no intention to keep them to himself has been exhibited.

  Indeed, since then, the question has been, What does it mean for society to recognize something as reasonable? Some legal scholars have even tried to conduct empirical research, using surveys, to better understand where ordinary people feel the limits are, or at least, ought to be. For now, such scholarship is largely limited to the academic realm, and has not yet made a substantive impact on what many courts, much less the Supreme Court, considers to be reasonable.

  Katz’ impact was immediately felt on both a local and national level: the LAPD quickly issued a notice to all personnel clarifying what officers could and could not do with respect to physical surveillance.

  At a federal level, however, during the Johnson administration, months before Katz had been considered at the Supreme Court, Attorney General Nicholas Katzenbach spearheaded a commission to examine the state of criminal justice in America. In February 1967, the body produced a voluminous report: “The Challenge of Crime in a Free Society,” which noted that the patchwork of laws pertaining to wiretapping and “electronic eavesdropping…is so thoroughly confused that no policeman, except in States that forbid both practices totally, can be sure about what he is allowed to do.”

  Congress largely incorporated much of the commission’s recommendations, and passed the Omnibus Crime Control and Safe Streets Act of 1968. The law also included a provision, known as Title III, that would formally allow real-time wiretaps to exist, but only as part of a super-warrant, whereby, not only does a law enforcement agent have to establish probable cause of a crime, but the request must come from senior department officials, rather than any federal prosecutor. Further, the federal judge must also determine that any other investigative technique has failed, would fail, or would be too dangerous to undertake. Today, this law is a crucial foundation for most modern surveillance of suspected criminals.

  But even at the time, Title III was not without its critics. While President Johnson signed the Safe Streets Act into law in June 1968, he specifically called out his unhappiness with that part of the bill:

  If we are not very careful and cautious in our planning, these legislative provisions could result in producing a nation of snoopers bending through the keyholes of the homes and offices in America, spying on our neighbors. No conversation in the sanctity of the bedroom or relayed over a copper telephone wire would be free of eavesdropping by those who say they want to ferret out crime.

  Thus, I believe this action goes far beyond the effective and legitimate needs of law enforcement. The right of privacy is a valued right. But in a technologically advanced society, it is a vulnerable right. That is why we must strive to protect it all the more against erosion.

  Since Katz, the notion of a “reasonable expectation of privacy” is one that regularly comes up in court cases at all levels. But as Justice Harlan noted, the crucial question of whether that expectation is one that society is prepared to accept as reasonable remains open.

  There are some more recent cases that have obvious outcomes. For example, does one have a reasonable expectation of privacy in the trash you leave curbside to be picked up? No, the Supreme Court ruled in 1988. Taken one step further, does a person have a reasonable expectation of privacy in documents that have been shredded and thrown out? No, the 1st Circuit US Court of Appeals concluded in 1992. Does a criminal have a reasonable expectation of privacy in a computer that was obtained fraudulently? No, the 9th Circuit US Court of Appeals decided in 2005. Does a burglar who abandons his cell phone at the scene of a crime have a reasonable expectation of privacy in the phone? No, a Sacramento federal judge ruled in 2016.

  More recently, a federal judge in Seattle ruled in 2016 that users of the online anonymity tool Tor do not have a “reasonable expectation of privacy in their IP [Internet Protocol] addresses while using the Tor network.” Therefore, a man who the government believed was running an online
drug website (Silk Road 2.0) and obscuring his online tracks by using Tor was not searched when the government in effect hacked his Tor Browser to locate him.

  Katz, in short, has become the bedrock of modern surveillance jurisprudence. It has benefited all of us by expanding our rights against some forms of warrantless government intrusion beyond the four walls of our homes. Thanks to Title III, the government must now clear extraordinary hurdles if it wants to listen in on our voice calls. But of course, in the early twenty-first century, investigators have many more tools at their disposal beyond mere wiretaps. The promise of Katz, and of the intent of Harlan’s concurrence, has somewhat been lost in the intervening decades. Is it reasonable to accept video cameras everywhere? What about drones? What about mandatory DNA collection? Is it reasonable for individuals to carry digital devices that are difficult for the government to access?

  After all, there’s not always an obvious, immutable, bedrock expectation of privacy. That’s a lesson well understood even today by Harlan’s law clerk Louis Cohen, who wrote the first draft of Harlan’s Katz opinion and is now an established Washington, DC–based lawyer.

  “The rule that we are creating is not solely governed by the preexisting expectations of privacy, they are also determinative of what expectations are reasonable,” Cohen said. “By writing rules about who can make what use of data, we are determining society’s expectation. So that the next time there is a constitutional case and the question is: is this something that society is prepared to accept as reasonable? Well, maybe society has been influenced by developments on the ground.”

  CHAPTER TWO

  How the Government Cracked an iPhone—Without Apple’s Help