The Fourth Amendment, broadly provides 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,” and that “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,” the Framers were responding, in large part, to the British use of “general warrants” and “writs of assistance.”
The historical origins of the Fourth Amendment are clear. They are traceable to the political events in England and the Colonies which ignited the American Revolution. Landynski, J., Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation, (1966) p. 19. These events involved the unrestrained and indiscriminate searches and seizures pursuant to general warrants and Writs of Assistance. Landynski, at 20.
In Olmstead v. United States, 277 U.S. 448 (1928) a 5-4 decision, with the majority opinion written by Chief Justice William Howard Taft, the Court ruled there was no violation of the Fourth Amendment. Chief Justice Taft explained that while letters posted in the U.S. mail were protected by the Fourth Amendment, phone conversations were not, for two main reasons. First, letters were specifically implied in the language of the amendment, as papers, and were carried by the U.S. government, which was bound by the amendment. Phone conversations, on the other hand, were not covered by the language of the amendment. Chief Justice Taft also pointed out that telephone and telegraph lines are not controlled by the government. Furthermore, since there was no trespass onto the property of Olmstead and evidence was gathered through the sense of hearing, which was not forbidden by the Constitution, there was no search or seizure, so the Fourth Amendment did not limit the government’s actions.
In a famous dissent, (which every Court should know by heart) Justice Louis Brandeis wrote that the purpose of the amendment was to secure those conditions favorable to the pursuit of happiness. For that reason he argued that the amendment created zones of privacy, which the government could not intrude upon without probable cause. He believed in a flexible Constitution that could be adapted to a changing society. Justice Brandeis was concerned that, if unchecked by the Fourth Amendment, the government might, in the future, develop the psychic and related sciences to the extent that it could discover the unexpressed thoughts of people. He pointed out that the Court had not been shy in expanding the powers of Congress to meet the needs of contemporary society and thought that the same should be done to protect civil liberties. For Brandeis, a search or seizure took place anytime the government initiates a process by which it attempts to gather evidence to be used against an individual. Brandeis warned that:
Subtler and more far reaching means of invading privacy have become available to the Government . . . the progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may some day be developed by which the Government. without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.
It took the Supreme Court forty years in Katz v. United States (1967) to admit that the majority had been wrong to say wiretapping did not implicate the Fourth Amendment, and that Brandeis had been right. The Court closely examined and then upheld New York legislation that carefully regulated the issuance of a special kind of warrant to allow wiretapping, if the government could show a judge the reasonableness of the intrusion in a way that took account of the particular ways that wiretapping invades privacy. Congress responded by enacting what is still known as Title III, the federal wiretap statute which nearly 50 years later stands as a testament to the open, deliberative approach to complex privacy issues.
Some courts, possibly hearing Brandies, have also sounded an alarm. Justice Douglas once noted: “Electronic surveillance is the greatest leveler of human privacy ever known …. [Elvery person is the victim, for the technology we exalt today is everyman’s master.” United States v. White, 401 U.S. 745,756-57 (1971) (Douglas, J., dissenting). Chief Justice Warren shared this fear:”[T]he fantastic advances in the field of electronic communication constitute a great danger to the privacy of the individual; [the] indiscriminate use of such devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments.” Lopez v. United States, 373 U.S. 427, 441 (1963) (Warren, C.J., concurring).
Many courts, unfortunately, have not learned from the words of Brandeis that “subtler and more far reaching means of invading privacy” were coming from the government. Instead too many courts continue to allow technology to write the Fourth Amendment out of the Constitution. For instance, in Dow Chemical Co. v. United States, 358 U.S. 307 (1986), the Court held that surveillance techniques that do not reveal intimate details about a person’s life, in this case use of highly detailed cameras, do not interfere with a person’s subjective expectation of privacy. In an era of flying drones with cameras, is it good policy to say that taking aerial photographs with a zoom lens is analogous to standing outside the complex and looking in, and is therefore not a search in the context of the Fourth Amendment?
Likewise, thermal scans were determined to be particularly effective in detecting drug growing operations, because marijuana can be grown indoors with the aide of high intensity lamps. A new technology enabled law enforcement agencies to infringe on the fourth amendment rights of American citizens. It was not until 2001, ten years after the new technology was first employed by law enforcement agencies, that the Supreme Court decided that thermal scans are a search under the Fourth Amendment and therefore require a warrant. Kyllo v. United States 533 U.S. 27 (2001).
Now courts refuse to recognize that there is virtually no aspect of life that cannot be captured, analyzed, and stored in 0s and 1s. Credit card and smartphone use reveals a wealth of information about someone that in the past had been known only by a small number of family members or close friends. The government’s ability to access information about someone possessed by third parties (e.g., telecommunications companies, Facebook, Amazon) and store that information permanently (via computer databases) enables the government to create detailed files about someone without that person’s knowledge.
Searches and seizures of computers and computer data present complex legal questions that, if resolved incorrectly, present a very real threat of massive intrusions into civil liberties. Several instances of abuse have already been documented. See Steve Jackson Games, Inc. v. United States Secret Serv., 816 F. Supp. 432 (W.D. Tex. 1993), aff’d, 36 F.3d 457 (5th Cir. 1994); Editorial, Search and Seizure, Computer Style, ST. Louis POST-DISFATCH, Jan. 26, 1993, at 2C (FBI seized computer bulletin board system in search for pornographic files, leading to losses of $40,000 for the owner of C1,: system, who had consistently tried to keep pornographic material off the system and had kept the local police notified of pornographic materials transmitted on his system); BRUCE STERLING, THE HACKER CRACKDOWN (1992) (a full-length book discussing government raids on suspected computer hackers). Harvard law professor Laurence Tribe has even called for the proposal and passage of a constitutional amendment specifically protecting the privacy of electronic communications. Paul Freiberger, Computer-Age Call for New Amendment, CHI. TRIB., Mar. 31, 199 l, at 2; see Matthew Goldsmith. Privacy Laws Urged for Data Superhighway, N.Y.L.J., Jan. 24, 1994. at 1 (discussion of legislative proposals and calls for increased protection).
But now the government itself has become that which it prosecutes: a hacker. “In 2015, the FBI used a piece of malware to identify suspected visitors of a dark web child pornography site. Now, nearly 30 legal teams across the country have pushed to get all evidence thrown out of court, and many attorneys have decided to pool their efforts in a ‘national working group.’ The cases revolve around Operation Pacifier, in which the FBI briefly assumed control of the “Playpen” website. The agency hacked computers all across the world—including over one thousand in the US—based on one warrant that has become legally contentious.” Joseph Cox, “Dozens of Lawyers Across the US Fight the FBI’s Mass Hacking Campaign,” Motherboard July 27, 2016. The FBI took control of Playpen, and for just under two weeks ran it from a government server. During this time, the FBI broke into targets’ computers, before grabbing their IP address and other technical information. The judicial response? Sounds good and is not outrageous that the government ran a child porn site. “Defense Lawyers Claim FBI Peddled Child Porn in Dark Web Sting” Motherboard (Jan. 8, 2016); “Judge Rules FBI Running Child Porn Site for 13 Days Was Not ‘Outrageous Conduct’” Motherboard Jan. 26, 2016 (“I am not shocked by this,” Judge Robert J. Bryan said in a hearing transcript. “I did not find it outrageous.”)
Fortunately, some courts are remembering history so we are not doomed to repeat it. They are beginning to reject government hacking. “In a First, Judge Throws Out Evidence Obtained from FBI Malware” Motherboard (April 20, 2016)