High-tech surveillance tools and the Fourth Amendment: reasonable expectations of privacy in the technological age.

• Author: Julie, Richard S.

1. INTRODUCTION

   The Fourth Amendment to the Constitution guarantees "[tire right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures."(1) This Note explores the scope of that right, particularly the various methods that have been used to determine at what point the right attaches, or when a search has occurred. It focuses in particular on the courts' response to developments in surveillance technology used by law-enforcement agencies to combat the proliferation of illegal drugs. Such technologies have presented a challenge to scholars, as they require the application of a constitutional guarantee written over two centuries ago to modern devices which give police the power to see through the walls of people's homes and detect minute amounts of contraband. Part II of this Note discusses the historical development of Fourth Amendment jurisprudence over the past seventy years, introducing the major developments in the field, particularly Olmstead v. United States(2) and Katz v. United States.(3) It goes on to provide critiques of Katz and some of the cases following the Katz doctrine. Part III discusses a number of technologically advanced surveillance tools, some of which are in use by law-enforcement today, and assesses the applicability of the Fourth Amendment to their use. Part IV introduces and discusses one solution which has been proposed to the problem of interpreting the Fourth Amendment in the technological age. Finally, a solution is proposed in Part V which compensates for many of the problems in existing Fourth Amendment jurisprudence by tying the Amendment's applicability to federal, state, and local law.

2. IS IT A SEARCH? KATZ AND THE REASONABLE EXPECTATION OF PRIVACY STANDARD

   In the absence of a search (or seizure), the Fourth Amendment is not implicated by police action.(4) For nearly fifty years, beginning in 1928 with Olmstead v. United States,(5) the Supreme Court of the United States premised the existence of a search on whether a physical trespass had occurred under local property law.(6) In Katz v. United States,(7) largely in response to technological advances in police surveillance techniques,(8) the Supreme Court promulgated a new standard for determining when a search has occurred, bringing Fourth Amendment jurisprudence into the twentieth century by basing the analysis on privacy interests.(9)

   1. Olmstead v. United States: Property-Based Literalism and the Fourth Amendment

      The property-based conception of Fourth Amendment rights embodied in Olmstead entailed many flaws; this became obvious as police surveillance technology continued to advance during the forty years the decision was in effect.(10) Adhering firmly to the precise language of the Amendment, the Court in Olmstead held that the only interests protected by the Fourth Amendment were those in tangible objects, such as papers, houses, and other physical possessions,(11) and that those possessions were protected only against physical invasions.(12) Overheard conversations and other types of communicative evidence, therefore, had no specific protection, unless obtained in, violation of local property law.(13)

      The Olmstead decision thus embodies what Professor Cloud calls "property-based literalism," the theory that no search occurs where there is no physical trespass into a "constitutionally protected area" such as the home or office.(14) The primary criticism of this approach is that it required courts to base their decisions on what would seem to be insignificant, even irrelevant, distinctions. Compare, for example, Goldman v. United States,(15) in which police's officers' eavesdropping was held not to be a search because their microphone had been placed against a wall on the side opposite the defendant's office, with Silverman v. United States,(16) in which a constitutional violation was found where police used a foot-long "spike-mike" to penetrate a party wall, entering (trespassing on) the private property of the defendant.(17)

   2. Katz v. United States: A Modern Approach

      Olmstead's trespass-based theory of Fourth Amendment jurisprudence was ultimately rejected by the Supreme Court in Katz v. United States. Charles Katz was a "prolific basketball handicapper"(18) suspected by the Federal Bureau of Investigation of illegally transmitting wagering information across state lines. Without obtaining a warrant, FBI agents attached "an electronic listening and recording device" to the outside of the public phone booth from which Katz was known to place such calls, and recorded the illegal conversations which ensued.(19) While both Katz and the federal government phrased their arguments to the Supreme Court in terms of "constitutionally protected areas," the phraseology prescribed in Olmstead, the Court "decline[d] to adopt [that] formulation of the issues."(20) Proclaiming that "the Fourth Amendment protects people, not places,"(21) Justice Stewart, for the Court, wrote:

      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.... 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. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.(22) The rule that Katz eventually came to stand for, however, is Justice Harlan's "reasonable expectation of privacy" standard, embodied in the two-prong test of his concurring opinion.(23)

      A search is deemed to have occurred when (1) the government conduct has transgressed a citizen's subjective manifestation of a privacy interest; and (2) the privacy interest invaded is one that society is prepared to accept as legitimate.(24) This "reasonable expectation of privacy" test has come to be the means used for determining the scope of the Fourth Amendment's protections.(25)

      This ruling constituted a long overdue recognition that Olmstead's strict interpretation of the plain language of the Fourth Amendment was insufficient, in light of continuing advances in police surveillance technology, to protect those interests which the Framers had sought to protect.(26) The Fourth Amendment was adopted in response to the use of general warrants and writs of assistance, by which British soldiers conducted wide-scale searches of colonists' homes and private affairs for contraband.(27) The Framers sought to curtail these abuses by establishing a minimum threshold for police intrusion into citizens' privacy.(28) But Olmstead, by limiting the Amendment's scope to property law, confounded these aims. Justice Brandeis, in stinging dissent from the Olmstead majority, reasoned that, because it was a constitution that the Court was expounding, which was to be applied to police tactics and equipment which did not exist at the time the Constitution was drafted, the Court had to "adopt a construction susceptible of meeting modern conditions."(29)

      The "reasonable expectation of privacy" test embodied in Katz is just such a construction; it recognizes that individuals have a panoply of rights, beyond those afforded by private property, which the Fourth Amendment was designed to protect. Indeed, the Court's Fourth Amendment jurisprudence in the years following Katz gave a broad reading to the right to privacy, indicating that the Fourth Amendment had become a vigorous source of protection for individual interests.(30) In Delaware v. Prouse,(31) for example, the Court recognized an increased expectation of privacy for automobile passengers, observing that people "find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel."(32)

   3. Critiques of Katz and Its Progeny

      Unfortunately, as members of the Warren Court retired and were replaced by more conservative appointees, the broad reading given this privacy analysis began to be turned on its head. In recent years, the Court has tended to find that "the effect of modern life, with its technological and other advances, serves to eliminate or reduce a person's justified expectation of privacy."(33) For example, in Dow Chemical Co. v. United States(34) the Court found no violation of the Fourth Amendment where the Environmental Protection Agency engaged in warrantless aerial photographing of Dow Chemical's Michigan manufacturing plant.(35) Dow had maintained elaborate ground security, which barred public view of its plant from the ground, and had investigated any noncommercial flights (including the EPA's) which flew low over its property and which Dow felt could compromise its trade secrets.(36) Despite these attempts at secrecy, which would seem to evidence a subjective expectation of privacy, the Court found that because any person with access to a camera and an airplane could have taken the same photographs, it was unreasonable, under the second prong of Justice Harlan's test, for Dow to expect that its plant would remain private.(37)

      In addition to finding that new technologies reduce expectations of privacy, the Court has also tended to limit the reach of the Fourth Amendment through what Professor Clancy calls an "empirical approach,"(38) which examines whether an act is observable by the general public and concludes, if so, that it is unreasonable to expect privacy in that act.(39) As a result, government regulation has been found to reduce (if not eliminate altogether) an individual's expectation of privacy.(40) In New York v. Burger,(41) for example, the Court held that an automotive junk dealer, who is required by statute to keep a record for police inspection of all automobiles and...