Exhibit A in 4th Amendment privacy cases: technology
Sunset Strip bookie Charlie Katz suspected the feds had bugged his apartment, so he would amble over to a pay phone outside where Carney’s hot dog joint now stands to call in his bets to Boston and Miami.
It was 1965, a time when phone booths had four glass walls and a folding door, allowing Katz to seal himself off from eavesdroppers. Or so he thought.
FBI agents planted a recording device at the booth and taped his dealings, leading to his conviction on eight illegal wagering charges. But two years later, Katz became a legal trailblazer when the U.S. Supreme Court tossed his conviction and expanded the 4th Amendment’s guarantee of freedom from unreasonable search and seizure to include a citizen’s “expectation of privacy.”
The ruling in Katz vs. United States may have been a high-water mark, though, for recognition of individuals’ right to be “secure in their persons, houses, papers and effects.”
Court rulings since then have significantly limited what people can expect to keep private. This shift has accelerated as new technologies — including smartphones and GPS — have emerged.
The U.S. Supreme Court on Tuesday will take up another hot-button 4th Amendment issue: whether GPS surveillance without a warrant constitutes an unreasonable search. The case, United States vs. Jones, will decide the law on GPS tracking across the country.
Last year, the U.S. Supreme Court overturned a decision by the usually liberal-leaning U.S. 9th Circuit Court of Appeals that an Ontario police sergeant’s privacy had been violated when the city’s police chief read through private text messages sent from his pager. The high court said public employees — who number 20 million nationwide — didn’t have an expectation of privacy when sending personal messages on company devices.
Recent federal court rulings still making their way through the appeals process have condoned police seizure in the course of an arrest of everything stored on a suspect’s smartphone — photos, banking records, email and Internet traffic — regardless of its relevance to the offense prompting the arrest.
The aftermath of the Sept. 11, 2001, attacks has resulted in even more government access to personal records. Courts have upheld the broad powers that the 2001 Patriot Act granted national security agents to access email, wiretap telephones or track a suspect’s Internet use, all without a warrant and in secret, preventing the targets from knowing they are under surveillance.
The Supreme Court review of privacy rights and GPS tracking comes a year after the 9th Circuit ruled that federal Drug Enforcement Administration agents didn’t violate an Oregon man’s rights when they entered his driveway at 4 a.m. to clandestinely install a global positioning device on his car. Authorities used the data on his movements over four months to build a case that Juan Pineda-Moreno was illegally growing marijuana.
A ruling in United States vs. Jones — a case involving the use of a car-mounted GPS device to track a drug-trafficking suspect in the Washington, D.C., area — could settle the law in the Pineda-Moreno decision and in other challenges to such warrantless monitoring by government agencies. The 4th Amendment restrictions have been harshly lamented by 9th Circuit Chief Judge Alex Kozinski, a libertarian who tends to side with the court’s progressives on privacy and 1st Amendment issues.
“The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory,” Kozinski wrote in an impassioned objection to the Pineda-Moreno ruling by a three-judge panel of Republican appointees, like himself.
Writing for the panel, Judge Diarmuid F. O’Scannlain said Pineda-Moreno couldn’t expect to have privacy in his driveway because it had no gate, no sign against trespassing and was regularly used by letter carriers, delivery services and visitors. Furthermore, the judge noted from an earlier 9th Circuit ruling, “a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”
Legal experts say the government now has much greater search and seizure powers than it did when Charlie Katz entered that Sunset Boulevard phone booth.
“This has become a huge issue, far beyond police putting GPS on your car, because we are all carrying around portable GPS devices,” Chris Calabrese, legislative counsel for the American Civil Liberties Union, said of the tens of millions of cellphones and locating gadgets in Americans’ cars and pockets.
Since the Patriot Act expanded government agents’ clandestine access to individuals’ communications records, the use of so-called national security letters seeking the information has increased astronomically, the ACLU said in a report earlier this year. It detailed the roadblocks encountered in three lawsuits it has brought challenging the intelligence services’ right to clandestinely search or wiretap virtually any communications user.
California Gov. Jerry Brown has also followed the national trend of aiding law enforcement over individual rights. Last month, Brown vetoed a bill passed by the Legislature with a unanimous bipartisan vote prohibiting police from searching an arrestee’s cellphone without a warrant. The governor cited a January California Supreme Court decision allowing such searches in saying that the question of whether police should have access is best left to the courts.
Prosecutors hail the courts’ protection of their access to data that can be a major crime-fighting tool.
“In gang cases and in drug cases, the way cellphones are used today — whether you’re talking about Twitter or Facebook or texting or use of the phone — it’s just such a part of how things are being done, how things are planned, that getting immediate access to those things at the time of arrest is becoming more critical to preventing further violence and criminal conduct,” said W. Scott Thorpe, head of the California District Attorneys Assn.
Michael Scott, a professor of privacy and technology law at Southwestern Law School, said he feared the state of 4th Amendment protection is “not too far from police being able to download phones during a traffic stop.” But what appear to some analysts to be the erosion of privacy protections, Scott said, are actually the courts updating the Katz test of whether individuals can expect privacy in the changed circumstances of the digital era. Techniques like the use of GPS don’t give police access to information that isn’t already available to them if they physically follow a suspect, Scott noted.
Jesse Choper, a UC Berkeley constitutional law professor, sees conservative shifts on the two most influential courts in the country as the reason for the narrowing privacy definition. The Supreme Court’s 5-4 majority of Republican-appointed justices tends to support law enforcement over privacy protection, and the 9th Circuit, although still dominated by appointees of Democratic presidents, has seen its liberal majority diluted by more moderate nominations by President Clinton and stalwart conservatives named to the court by President George W. Bush, Choper said.
The courts’ redefinition of what can be considered private has been brought on by both technology and youthful communities willingly sharing thoughts, photos and intimate details with strangers on social networks like Facebook and Twitter, said Gerald Uelmen, a Santa Clara University professor of criminal law.
“They’ve created a culture of exposing everything on the Internet, including their private parts,” said Uelmen. “We’re seeing a whole generation for whom privacy is not important.”
