Copy of US Foreign Intelligence Surveillance Court order requiring Verizon to give information to the NSA. (AP Images)
In 1928, the Supreme Court ruled that no warrants were needed for police to listen in on phone conversations, because voices were transmitted outdoors, beyond the private property that was protected by the Fourth Amendment. “The language of the amendment cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office,” the majority wrote in Olmstead v. United States. “The intervening wires are not part of his house or office, any more than are the highways along which they are stretched.”
If this sounds absurd, we can hope that today’s arguments on the forfeiture of privacy in a digital age will someday sound equally ridiculous. The telephone was still a relatively new technology in 1928, as cellphones and the Internet are today, and the law had not yet adjusted to its use. It took thirty-nine years for the Supreme Court to catch up with the times and reverse Olmstead. In Katz v. United States, the Court devised a new test to determine the Fourth Amendment’s jurisdiction—“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,’” as Justice John Marshall Harlan wrote in a concurring opinion. Thereafter, wiretaps required warrants.
So it may eventually be for the massive collection of cellphone locations, numbers called and received and e-mail addresses (including subject lines)—all of which the National Security Agency has been sweeping up in an effort to map interconnections among the suspicious and the innocent alike—just in case. This “metadata,” as it’s called, may actually provide a more complete picture of a person’s private life than the transcripts of a few phone conversations.
President Obama dismissed the collection as a minor intrusion, but it’s worth recalling the words of the federal appeals court in the District of Columbia, which was upheld by the Supreme Court in ruling that police had to get a warrant before attaching a GPS device to a vehicle. “A person who knows all of another’s travels,” the appeals court observed, “can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts.”
Indeed, in 2011, Democratic Senator Ron Wyden of Oregon rose on the Senate floor to denounce the NSA’s collection, which he could not describe because it was classified, by insisting that “when the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.” Judging by the polls and the debate, it seems that he overestimated the American people.
The future judgment about the program—both its constitutionality and cultural acceptance—will turn on how the “expectation of privacy” is defined, for that remains the main test of where the Fourth Amendment’s protection begins and ends. The boundaries of privacy have grown very blurry in an age when we practically disrobe at airports, share our inner torments on Facebook and Twitter, don’t mind advertisers’ following us from website to website and happily allow weather and traffic apps to know where we are at all times.