Looking Back to See the Future of Privacy Laws

Policy and law adapt as new technologies emerge.

Self-driving cars, 3D printing, and the all-encompassing Internet of Things (IoT) are exciting, futuristic frontiers. As with other mass-market technology introduced in the previous century, these advances are fraught with unknowable legal and ethical consequences. It is often left up to the courts and legal professionals to untangle and make sense of this ever-changing landscape.

The illicit potential and use of new technologies is repeatedly what sparks policy discussions and analysis of existing laws. The Supreme Court has grappled with these issues and has seen even its own interpretations evolve as technology becomes more refined and social norms adapt. Olmstead v. United States (1928), the famous Prohibition-era case surrounding wiretapping, illustrates how the prickly topic of privacy and individual rights has changed over time.

Ray Olmstead, former policeman and bootlegger, ran his illegal operation much like a conventional business, even forbidding his employees to carry guns. His reliance on traditional forms of communication allowed federal agents to wiretap his phones, collect evidence, and conduct a raid.

Olmstead sued, claiming agents had conducted an unreasonable search and seizure of his business. The Court, presided over by Chief Justice and former President William Howard Taft, thought otherwise. In a 5-4 decision, the Court interpreted the Fourth Amendment strictly, determining there was no physical intrusion or seizure of property that would equal a violation.

The wiretap, in this case, was no different than a public conversation that might be overheard in a bar. Then Justice Louis Brandeis did not agree and had this far-sighted dissenting opinion.

“The progress of science,” Brandeis wrote, “in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may someday 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.”¹

The Court’s decision in Olmstead established the “trespass doctrine” which would be overturned some 40 years later in Katz v. United States (1967). Another denizen of the criminal class, Charles Katz was a professional bookie specializing in high-stakes bets on basketball games across the country.

Interstate wagering on sports is illegal (Federal Wire Act, 1961),² so Katz ran his business out of a telephone booth. After federal authorities identified the three booths he worked out of, they took one out of commission and wiretapped the other two. Based on recordings collected, Katz was arrested and charged.

In light of such damning evidence, his only hope was arguing that the telephone booth was a private place and hence his Fourth Amendment rights had been violated. Chief Justice Potter Stewart, in the majority opinion (7-1), concluded that the Fourth Amendment protects people, not places.

“No less than an individual in a business office, in a friend’s apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, 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.³

The Katz decision effectively dismissed the “trespass doctrine” as soundly out-of-date. However, the debate continued among the Justices’ concurrent statements.

Justice John Marshall Harlan, Jr. brought up the issue of “reasonable expectation of privacy” and Justice Byron White argued for a “national security” exception–both principles that are still being debated in court cases today. In the lone dissenting opinion in Katz v. United States, Justice Hugo Black argued that the Court did not have unlimited power to hold everything which affects privacy unconstitutional under the Fourth Amendment.

As the boundaries of individual privacy continue to blur, courts and public opinion will manage the impact of emerging technology–knowing the line drawn today may change again in the not so distance future.

How do you think new technology will affect privacy laws? Leave your thoughts in the comments.

This article is for informational purposes only.

CITATIONS

¹Grossman, David, and Avery Thompson. “5 Times the Supreme Court Changed the Future of Technology.” Popular Mechanics, Hearst Digital Media, 30 December 2016. Web. 18 August 2017.

²“Federal Wire Act.” Wikipedia, Wikimedia Foundation, 27 July 2017. Web. 18 August 2017.

³Iannacci, Nicandro. “Katz v. United States: The Fourth Amendment adapts to new technology.” National Constitution Center, 8 December 2015. Web. 18 August 2017.

“Legal & Ethical Issues in Technology.” Legal Beagle. Web. 18 August 2017.

“Legal Issues of New and Emerging Technologies.” InfoSec Resources, 29 February 2016. Web. 18 August 2017.