The Fourth Amendment in the Digital Age

May 10, 2017 by Jim Harper

In this excerpt from our new Digital Privacy initiative, Jim Harper from the Competitive Enterprise Institute critiques current Fourth Amendment doctrine and calls on courts to adopt a new approach that hews closely to the Fourth Amendment’s text.

You can read the full text of Harper’s white paper at our special section, A Twenty-First Century Framework for Digital Privacy, at https://constitutioncenter.org/digital-privacy

Stare decisis is the valued judicial practice of extracting the underlying principle from precedent, the ratio decidendi, and applying it to present cases. But what happens to the principle behind a prescient dissent—the ratio dissensi, if you will—when a majority’s decision later proves wrong? Almost ninety years ago, an understated Supreme Court Justice left crumbs of insight in a dissent that may help solve the riddle of applying the Fourth Amendment, particularly to modern communications and data. His thinking can help construct a more complete, reliable, and truly juridical method for administering the Fourth Amendment. Advocates and courts should look to his prescient ratio dissensi.

Pity Justice Butler. Next to contemporaries such as Oliver Wendell Holmes, Jr., Louis D. Brandeis, and Benjamin Cardozo, Pierce Butler occupies second-tier status in history’s assessment of Supreme Court justices. A conservative Democrat put forward by a Republican president, Butler was a controversial nominee for the Court. One of his Minnesota home-state senators opposed him, as did progressive lion Robert LaFollette, Sr., a Republican from Wisconsin. The opposite end of the ideological spectrum did Butler no favors: the Ku Klux Klan opposed his nomination because he was a Catholic.

Justice Butler wrote more than 300 opinions in his sixteen years of Supreme Court service, but few stand out today. He is best remembered as one of the “four horsemen” who lost their constitutional stand against President Franklin Delano Roosevelt’s expansive “New Deal” programs. But time has vindicated some of Justice Butler’s work on the Court, including notable dissents.

Butler alone rejected Oliver Wendell Holmes, Jr.’s now notorious reasoning in Buck v. Bell, for example. Allowing forced sterilization of a woman, Holmes wrote coldly for the majority: “Three generations of imbeciles are enough.” The Nazis’ use of eugenics the next decade cast more than a little pall over the practice, and Skinner v. Oklahoma effectively ended forced sterilization in 1942. Score one for the conscience of Justice Butler.

Likewise, in Palko v. Connecticut, Butler alone disagreed with Justice Cardozo’s ruling that the Constitution’s protection against double jeopardy did not apply to the states. The Court reversed itself on this question three decades later. Score another.

Butler was a legal technician, and his areas of focus were not what generally capture public and scholarly attention. His approach to opinion writing “stressed simplicity and minimalism,” according to a history by David R. Stras, now a Minnesota Supreme Court justice himself, “and it was rare indeed when he used rhetorical flourishes to argue a point.” So it is not surprising that Justice Butler’s dissent in Olmstead v. United States has remained obscure behind the fanfare of his brother Louis Brandeis’s dissent. But time may yet vindicate Justice Butler’s reasoning, especially given its usefulness for applying the Fourth Amendment to the digital world.

Olmstead, of course, was the 1928 case in which the Court found that a Fourth Amendment search had not occurred when government agents wiretapped the telephones of suspected bootleggers. Justice Brandeis, co-author of a Harvard Law Review article called “The Right to Privacy” forty years earlier, inveighed against the ruling using powerful and persuasive language. “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness,” he wrote:

They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.

Posterity has favored Brandeis’s passion. Commentators and scholars today still quote and muse over his formulation of “the right to be let alone.” They explore how that notion might be implemented to preserve the values that the Framers held dear.

But Brandeis’s words did not found a sustaining rationale for Fourth Amendment protection. The proof is in the eating of the pudding: Modern Fourth Amendment jurisprudence is a muddle, and it is sorely challenged by advances in information technology. This is particularly poignant because Brandeis foresaw the surveillance capabilities enabled by today’s information and communications technologies. “Ways may someday be developed,” he wrote, “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.”

The case that reversed Olmstead, of course, was Katz v. United States. In Katz, thirty-nine years later, Justice Harlan shared his sense of how the Constitution controls government access to private communications in his solo concurrence: “My understanding,” he wrote, “is that there is a twofold requirement, 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.’”

Since then, courts have analyzed whether defendants have had a “reasonable expectation of privacy” in information or things. Under Justice Harlan’s concurrence, if not the Katz majority’s rationale, the defeat of a “reasonable expectation of privacy” signals a constitutional search generally requiring a warrant.

That doctrine has not worked. Courts rarely follow the full analysis Justice Harlan’s formulation suggests. They rarely inquire into a defendant’s “actual (subjective) expectation of privacy,” for example, or how it was “exhibited.” The second half of the test requires judges to use their own views on privacy as a proxy for objectivity, though they are neither public opinion researchers nor sociologists. Against litigants importuning about privacy, courts after Katz have found as often as not that the Fourth Amendment does not protect the security of sensitive and revealing information.

In Smith v. Maryland, for example, one of the leading communications privacy cases, the Supreme Court found that placement of a pen register on a suspect’s phone line without a warrant did not violate the Fourth Amendment. “[W]e doubt that people in general entertain any actual expectation of privacy in the numbers they dial,” Justice Blackmun wrote. Walking through the influences that would suppress expectations of privacy in phone-dialing, and none that would support it, he said, “It is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.”

A Court without Justice Brandeis’s passion for privacy is evidently quite free to undercut it. So in United States v. Karo, government agents had arranged with an informant to surreptitiously install a radio beeper in a container. They used the presence of the beeper in the container over a period of several days to locate it at three different residences and in the driveway of a fourth, to locate the container in a pair of self-service storage facilities, and also to locate it in transit—all the while unable to suffer the inconvenience of getting a warrant. The Court did not examine whether all this warrantless beeper-tracking was reasonable. It gave the once-over to Karo’s expectation of privacy and found his (presumed) feelings unreasonable.

More recently, the “reasonable expectation of privacy” test produced a ruling that government agents’ examination of a stopped vehicle with a drug-sniffing dog is not a Fourth Amendment search. It is hard to think of a word better than “search” for such highly focused analysis of whether certain particulates exist in the air. Some cases certainly have maintained the protection the people have from inquisitive government agents, but the “right to be let alone” has not fared all that well when privacy and expectations thereof have been the locus of the Court’s decision-making.

If Justice Brandeis’s passion did not lay the groundwork for sound administration of a strong Fourth Amendment right, perhaps Justice Butler’s Olmstead dissent could. His challenge to the majority decision eschewed feelings, instead examining the legal status of telephone conversations:

The contracts between telephone companies and users contemplate the private use of the facilities employed in the service. The communications belong to the parties between whom they pass. During their transmission, the exclusive use of the wire belongs to the persons served by it. Wiretapping involves interference with the wire while being used. Tapping the wires and listening in by the officers literally constituted a search for evidence.

The communications belong to the parties between whom they pass. It is a fascinating—and very different—way of thinking about what happened in Olmstead. Justice Butler would have protected Olmstead’s calls from warrantless wiretapping not because it is part of human essence to have communications remain private, as Justice Brandeis said, but because people’s conversations are not the government’s to listen to.

Justice Butler’s formulation holds the seeds of an alternative way to administer the Fourth Amendment. It is technical and value-free, but it offers the hope of better Fourth Amendment administration because it is more susceptible to sound application than current Fourth Amendment doctrine. Its use would provide consistent and reliable protection for Americans’ liberties and a stable rule for law enforcement in a time of technological change.

Courts in Fourth Amendment cases should decline to invoke doctrine that requires them to make broad social pronouncements. Rather, they should apply the text of the Amendment and general legal principles as literally as possible to the facts of cases. That is not always easy, and it requires new and deeper analysis of what it means to “search” and to “seize.” It also requires fuller awareness of property and contract rights as they apply to communications and data. But it is a more methodical judicial exercise than applying “reasonable expectations” doctrine, and it would achieve the current Court’s goal of preserving “that degree of privacy against government that existed when the Fourth Amendment was adopted.”Applying the law to the facts is the better way to administer the Fourth Amendment.