In the Revolutionary period, the galvanizing example of government overreaching were the “general warrants” and “writs of assistance” that authorized the King’s agents to break into the homes of scores of innocent citizens in an indiscriminate search for the anonymous authors of pamphlets criticizing the King.
Writs of assistance, for example, authorized customs officers “to break open doors, Chests, Trunks, and other Packages” in an indiscriminate search for stolen goods without specifying either the goods to be seized or the houses to be searched.
In a famous attack on the constitutionality of the writs of assistance in 1761, James Otis said, “It is a power that places the liberty of every man in the hands of every petty officer.” John Adams said of Otis’s speech, “Then and there the child Independence was born.”
As a result, many state constitutions adopted versions of what became the Fourth Amendment, which declares: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.
And when the framers of the U.S. Constitution prohibited “unreasonable searches and seizures” of our “persons, houses, papers, and effects,” in 1791, they were thinking about the search of one person’s house in particular: that of the British rabble-rouser John Wilkes.
Wilkes had been elected to Parliament in 1757. He got into trouble by founding a Whiggish scandal sheet called the North Briton, a kind of 18th century TMZ report. Lord Halifax, the King’s agent, issued a general warrant authorizing the arrest of the printers, publishers, and authors of North Briton 45, without identifying them by name.
Wilkes sued the King’s messengers for trespassing on his property, and he urged a number of other publishers and printers who had been arrested under general warrants to do the same. A jury awarded Wilkes 100,000 pounds in damages -- a ruinous amount in its day.
Now fast forward over 150 years to the United States Supreme Court’s first encounter electronic searches.
It was a case decided in 1928 called Olmstead v. United States, which arose when the federal government began to tap phones in an effort to enforce Prohibition. Government agents put wiretaps on the telephone cables under the sidewalks leading up to the suspect’s office, and concluded that he was indeed a bootlegger. He objected that the wiretaps were an unconstitutional, because the government hadn’t obtained a warrant.
In the opinion by Chief Justice William Howard Taft, a majority of the Court held: no trespass, no constitutional violation. Because at the time of the framing of the Constitution, you needed to violate someone’s property rights to violate the Fourth Amendment, so these justices held, the suspected bootlegger was out of luck since his property rights weren’t violated.
In his visionary dissenting opinion, my hero, Justice Louis Brandeis, disagreed. In the Wilkes trial, “a far slighter intrusion seemed ‘subversive of all the comforts of society.’” Brandeis insisted that the Constitution had to protect just as much privacy in the age of the wires as it did during the colonial era, whether or not a physical trespass was involved.
In 1967, the Supreme Court appeared to accept Brandeis’s argument that technologically enhanced eavesdropping could qualify as an unreasonable search. In the Katz case, government agents attached a listening device to a public telephone booth and recorded a gambling suspect’s end of the conversation without his knowledge.
Overruling the Olmstead decision, which had held that there could be no search or seizure without a “physical intrusion,” the Court announced that the “Fourth Amendment protects people, not places.” Because Mr. Katz, the suspected gambler, had taken steps to preserve his privacy by closing the door of the phone booth behind him, the Court held that he reasonably expected his conversations wouldn’t be monitored without a judicial warrant.
In a concurring opinion, Justice John Harlan proposed the following Fourth Amendment test: Does a person have a subjective expectation of privacy that society is prepared to accept as reasonable?
There is just one problem with this test: it's entirely circular. As advances in the technology of monitoring and searching have made ever more intrusive surveillance possible, expectations of privacy have naturally diminished, with a corresponding reduction in constitutional protections.
Today, the great controversies about the Fourth Amendment involve government surveillance involving the mass collection of telephone data of cellphones or the tracking of suspects 24/7 using GPS devices or drones. Now that most of our data are stored in databases owned by third parties, none of these searches require physical intrusions into our homes, yet they can reveal far more about our intimate activities than the general warrants that outraged the Framers.
Do you think it’s an unreasonable search or seizure of your person or electronic effects for the government to collect the telephone numbers you dial if no human being actually sees them unless you’re a terrorist suspect? Those are the issues Americans debate today, just as we debated them in the dates of John Adams, James Otis, and John Wilkes.
As part of the National Constitution Center’s 27 Amendments (In 27 Days) project, each day we will look at a constitutional amendment. Through partnerships with leading scholars and universities, government agencies, media outlets, and more, the National Constitution Center will profile one amendment each day throughout the month of February.
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