The Fourth Amendment prohibits “unreasonable searches and seizures.” What that means is that if something is not a “search” or a “seizure,” the Fourth Amendment provides no protection at all. Common sense would seem to dictate that whenever the government comes snooping, that’s a search. But the Supreme Court doesn’t see it that way. The justices have said the Fourth Amendment does not apply to a host of intrusions, from combing through our trash to trespassing on our property. The Supreme Court already takes too narrow a view of when the Fourth Amendment’s protections kick in; the rapid appearance of new technology is only making it more urgent that we get right this central question regarding the Fourth Amendment: “What is a search?”
“SOMETHING CREEPY AND UN-AMERICAN”
In a classic children’s story, a hatchling bird tumbles from the nest and goes on an odyssey in search of its mother, who has flown off to find food. The little bird asks everything it comes across—a kitten, a cow, an airplane, even a bulldozer—“Are you my mother?” In the end, the bulldozer answers the question by lifting the bird back into its nest, reuniting it with its mother.1
Abdo Alwareeth has long been on a similar odyssey, a real one, with an equally pressing question—but his quest has not resulted in success. What Alwareeth wants to know is which government agency has been spying on him, and why. No one will say, though the fact of the spying has been undeniable ever since Alwareeth discovered and removed a GPS tracking device from his car, which law enforcement promptly demanded he return.2
Alwareeth is an American citizen, a self-made immigrant of Yemeni descent. He left his aristocratic family as a teenager and set out to find his way in the world. He was educated in Kuwait, then came to the United States. An Arab Muslim, Alwareeth harbors neither prejudice nor fanaticism. His first job after coming to San Francisco was at Glide Memorial Church, where he made a lifelong friend of his Christian boss. His first wife was Jewish. He’s not particularly religious. He established a successful chain of gas stations and grocery stores, remarried, had three children. He served for years as president of the Yemeni Benevolent Society. At a certain point he decided his children should experience Arab culture firsthand, so he sold his business and moved the family to Egypt for several years. Then he brought them back so that the kids could attend college in the United States.3
Alwareeth’s trouble started when California wrote to him in September 2008 to offer free auto repair services if he enrolled for a day of basic automobile maintenance training. After the classroom session, everyone’s car took a turn on the lift. When Alwareeth’s Infinity went up, sixth or seventh in the queue, it was hard to miss the device toward the rear, with its antenna, and wires sticking out of it. Alwareeth’s classmates started yelling it was a bomb, so the instructor ordered them out. Then he and Alwareeth hammered down what the instructor recognized as a tracking device, and removed the battery. Alwareeth bluntly describes the “humiliation” he felt among his classmates—“He’s an Arab, he has a bomb in his car.” 4
Once their surveillance of Alwareeth was interrupted, law enforcement’s priority became recovering the device. Alwareeth took his car to his own mechanic the day after the device was discovered, to repair something the auto maintenance class had revealed. When he found the shop busy he booked an appointment a day later. Immediately after Alwareeth departed, unmarked cars descended on the auto repair shop; officers jumped out and demanded return of the GPS tracker. The hapless owner had no clue what they were talking about; they searched the shop anyway. When Alwareeth returned the next day, the law enforcement rodeo repeated itself. Detective Sergeant Raffaello Pata of the San Rafael police gave Alwareeth his card, demanded the device, and apologized, saying it was all a mistake; the device was intended for a drug dealer. (Alwareeth asked them if they thought he was stupid.)5
At this point, a guilty person would slink into the darkness, but Alwareeth pursues his inquiry relentlessly. “A clean person,” he says, “has nothing to hide.” His file holds the business cards of all the officials he has met, and his correspondence with them: the inspector with the District Attorney of Marin County, special agents with the FBI, a social worker with the Marin County Department of Health and Human Services. The DA’s investigator warmly promised to find answers. When Alwareeth came back to the DA’s office a couple of days later the mood had changed. He told Alwareeth just to drop it. The City of San Rafael’s insurer, against whom Alwareeth filed a claim, denied any complicity, stating, “The only interaction between your client and the police department was when Mr. Alwareeth filed the complaint with the City regarding the device.” (One is curious, then, how Detective Sergeant Pata’s card materialized in Alwareeth’s file.) The San Rafael Police Department informed Alwareeth they had no clue which government agency was responsible.6
Alwareeth is the loyal, believe-in-the-American-dream sort who brags about the American system of justice and record on human rights when he’s back in Yemen, but who is left to wonder: “What happened to my human rights?” The short answer is that at the time the government did this to him, the courts had said he didn’t have a right—none of us had a right—to be free from government GPS tracking.7
The Fourth Amendment prohibits “unreasonable searches and seizures,” making the question of what is a “search” (or “seizure”) the lynchpin of everything else. As we saw in Part II, if something is a search, law enforcement can still do it, so long as they have probable cause and a warrant. But if it is not a “search,” within the meaning of the Fourth Amendment, there are no limits on what the government can do. To any of us.
In a case called United States v. Pineda-Moreno, the federal court of appeals with jurisdiction over California, where Alwareeth resides, decided that when the government engages in long-term GPS surveillance, that is not a “search” subject to constitutional protections. The government, suspecting Pineda-Moreno of growing and distributing marijuana, snuck onto his property at night and installed a GPS device on his car. They tracked his movements for four months, with no warrant. No problem, said the judges: it is not a search because no one has a “reasonable expectation of privacy” in his or her whereabouts.8
No reasonable expectation of privacy in one’s whereabouts? That seems a tad strong. The case brought together in dissent two judges who rarely agree with each other, Alex Kozinski and Stephen Reinhardt. When these two see things the same way, it’s fair to worry something is seriously amiss. To call sneaking onto someone’s property in the dead of night and then gathering “the precise locus of all of Pineda-Moreno’s movements” not a “search,” Kozinski pointed out, means “police can do it to anybody, anytime they feel like it.” “The needs of law enforcement,” Kozinski noted archly, “to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory.” Kozinski was born in Bucharest, Romania, in 1950, and grew up there until he was twelve, leading him to point out that for those who actually had “lived under a totalitarian regime,” this sort of conduct by the government created “an eerie feeling of déjà vu.” “There is something creepy and un-American about such clandestine and underhanded behavior.”9
Advances in technology have made this question of what a “search” is one of the most pressing we face today. Philadelphia’s former Police Commissioner Charles Ramsey, the co-chair of President Obama’s Task Force on 21st Century Policing, has noted that “technology is advancing faster than policy.” “We have to ask ourselves the hard questions,” he insists: “What do these technologies mean for constitutional policing?” Ramsey was quoted in a report by the Police Executive Research Forum cataloging some of the spy technologies police now possess: “automated license plate readers … facial recognition software, predictive analytics systems.” (Predictive analytics systems identify people believed likely to commit crimes in the future; you last saw this technology starring alongside Tom Cruise in the futuristic Minority Report, in which people were incarcerated for “pre-crime.”) That list doesn’t begin to cover it, though. There are radar flashlights that see through walls. There are drones that fly over our backyards. The government employs software programs with names like Carnivore and Magic Lantern to install malware on our computers able to record every keystroke, sort through email, even turn on and off the webcam. The microphone on your cell phone can be activated without you knowing. “1984 may have come a bit later than predicted,” observed Kozinski, referring to George Orwell’s dystopian novel about the surveillance state, “but it’s here at last.”10
Is all of this technology available to the government to spy on anyone it chooses, with no restrictions at all? Or is its use a “search,” to which the Fourth Amendment applies? This question, on which so much turns for so many, has tossed the courts into complete and utter disarray. In 2012, two years after Pineda-Moreno held that long-term GPS surveillance was not a search, the Supreme Court decided the opposite. But the justices split three ways on why, and were unable to offer a coherent test to govern other technologies. The problem, many of the justices realized, was that technology has altered our “reasonable expectations of privacy” dramatically, leaving them totally at a loss on how to deal with the problem.11
Solutions are less elusive than the courts believe, though. For one thing, courts should pay more attention to social convention in determining whether we have a “reasonable expectation of privacy.” But for another, this is not the sort of question judges need to resolve on their own. In the GPS case, Justice Samuel Alito, joined by many of his colleagues, practically begged Congress for guidance. As we saw in Chapter 4, however, courts don’t have to beg legislatures to weigh in on police use of new technologies. They can insist that it happen. And they should.12
IS PHYSICAL INTRUSION REQUIRED FOR A “SEARCH”?
The question of what government activity constitutes a Fourth Amendment “search” has bedeviled the Supreme Court for almost a century.
Until Prohibition, if the government acquired evidence from people—either by stealth or by force—it largely was taken for granted that it constituted a “search.” But then the advent of the age of electricity complicated things enormously. What should define a “search” when the government could spy and gather evidence without any physical entry or force whatsoever? The scope of the problem became clear in the wake of the country’s first high-profile wiretapping investigation. The target was Roy Olmstead, one of the West Coast’s foremost rumrunners, whose life really was the stuff of fiction.13
For a long time it seemed like the best thing that ever happened to Roy Olmstead was being busted for smuggling booze into Seattle in 1920. A young, up-and-coming member of the police force—the papers called him the “baby lieutenant”—Olmstead was promptly fired. But noting his aptitude for importing and distributing “the stuff,” prominent men helped set him up full time in the liquor business. Seattle at the time was progressive on Prohibition, which is to say alcohol was readily available and many drank it, typically with the sanction of local authorities. Its colorful mayor, Doc Brown, had made clear that “[n]o one is going to die for want of a drink of good spirits frumenti as long as I’m mayor.”14
In relatively quick order, Olmstead established an operation of remarkable legal and logistical complexity, often with the complicity of local officials. He traveled frequently to Canada to purchase his wares, which made their way down the coast in large ships and were offloaded to the mainland via speedboat. The freight was stored in a ranch outside town, in a cave excavated for this very purpose, over which sat an old garage that had been placed on rollers for access to the stash. The goods then were moved into safe places in town, and delivered to willing buyers. Orders were phoned into an office that operated by code to keep itself clear of any evidence of involvement in the booze trade. Olmstead had much of the municipal police working for him.15
If Olmstead was to be shut down, it was the federal Prohibition officials who were going to have to do it, but Olmstead ran the feds in rings—so they resorted to tapping his phones. All of them, home and office, at all hours of the day and night. Whatever there was to hear, business or personal, they could hear it. All told, federal agents accumulated more than 700 pages of transcripts. Never did they seek a warrant. The press tagged Olmstead’s trial the case of the “whispering wires.” After Olmstead was sentenced to four years and a large fine, his appeal made its way all the way up to the Supreme Court.16
The central question in Olmstead’s case was whether the wiretapping was a “search,” and for Chief Justice William Howard Taft—writing for a five-person majority of the Supreme Court—the answer was an easy one: the language of the Fourth Amendment simply did not cover wiretapping. Taft had been a federal judge before being president of the United States, then returned to the Supreme Court as its Chief, the one job he’d always coveted. He was hell-bent on enforcing Prohibition, and if any case called for the iron arm of the law, it was this one.17
As Taft read the Fourth Amendment, unless the government physically intruded into one’s property or person and took something tangible there could be neither a “search” nor a “seizure.” The language of “[t]he amendment itself,” he explained, indicates it is addressed only to “material things”: warrants must specify “the place to be searched and the person or things to be seized.” Here, by contrast, “[t]he evidence was secured by the use of the sense of hearing and that only.” The government, Taft noted, had been careful to place its taps outside of Olmstead’s home and office. Thus, “[t]here was no searching. There was no seizure.”18
Justice Louis Brandeis, dissenting in Olmstead, deemed Taft’s emphasis on physical intrusion naïve in light of technological change. Brandeis had been Taft’s ally in many Prohibition cases, though a split now was emerging in their understandings of government power, prompted in part by the excesses of Prohibition enforcement. For Brandeis, it was simply “immaterial where the physical connection with the telephone wires leading into the defendant’s premises was made.” Physical intrusion was no longer necessary because “[s]ubtler and more far-reaching means of invading privacy have become available to the government.” Brandeis noted that “the tapping of one man’s telephone line involves the tapping of the telephone of every other person whom he may call, or who may call him”—most of whom might be entirely innocent.19
Brandeis was prescient about the threat technology’s march posed for personal security. In words that must have seemed science fiction at the time, he wrote, “Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court.” (A training manual prepared by California prosecutors in 2010 quoted Brandeis’s opinion in Olmstead, and—in a section on “how to get the good stuff”—bragged that just as Brandeis has predicted, technological breakthroughs like cell technology have made it possible “to obtain disclosure in court of what is whispered in the closet.”)20
It would take two generations of utter legal foolishness to undo the damage to civil liberty that Taft accomplished by allowing the government to spy in any way it wished, without warrant or cause, so long as there was no physical intrusion. This was made clear by two cases that hopscotched the decades prior to Olmstead’s overruling. In 1942, in Goldman v. United States, the Supreme Court followed Olmstead in holding that police did not violate the Fourth Amendment when they listened in to a private conversation by placing a “detectaphone”—essentially a high-tech cup–against the office wall in which it occurred. Dissenting, Justice Frank Murphy was incredulous. True, he said, “[t]here was no physical entry in this case,” but under the Court’s interpretation “the most confidential revelations between husband and wife, client and lawyer, patient and physician, and penitent and spiritual advisor” were fair game. But then, in Silverman v. United States, decided nineteen years later, the government did much the same, and got called out for it. Rather than listening to the room next door with a detectaphone, it used a “spike mike,” which actually penetrated the wall, sitting against a heating duct in the defendant’s apartment. A skeptical lower court seemed to believe that “[a] distinction between the detectaphone employed in Goldman and the spike mike” was “too fine a one to draw.” It was “unwilling to believe that the respective rights are to be measured in fractions of inches.” But under the Olmstead approach they were. In Silverman, the Supreme Court found the evidence inadmissible because there was “an actual intrusion into a constitutionally protected area.” For forty years that thin physical line made all the difference.21
THE PROTECTION OF “PRIVACY”
Olmstead was finally overruled, in 1967, in a case involving gambling rather than booze. Charles Katz was one of the leading college basketball handicappers of his day; not only did he call college basketball games well, he also bet on them. To elude the authorities—wagering on interstate wires is and was a federal offense—Katz had a routine. When placing a bet, Katz would go to a group of three public telephones on Sunset Boulevard in Los Angeles, and randomly pick one of them to make his call. In this day of cellular communication, public phone booths like the ones Katz used, tall narrow cubes made of glass with a closing door for privacy, are a dying breed.22
The FBI nailed Katz by tapping the pay phones. With the telephone company’s knowledge, agents placed one of the three phones out of order. Then, the federal agents put a listening device on top of, and between, the remaining two booths. When Katz came down to place his bets, one agent signaled another to activate the listening device.23
Ushering in the modern era, the Katz Court concluded that henceforth in determining whether the government had conducted a “search,” the question would not be whether it had physically intruded onto property, but instead if it had violated one’s “privacy.” “For the Fourth Amendment protects people, not places.” The government had argued that any notion of privacy was foolhardy in Katz: after all, the man had stepped into a cube of glass, readily visible to all around him. “But,” the Court responded, “what he sought to exclude … was not the intruding eye—it was the uninvited ear.” “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.”24
PRIVACY’S PROTECTION EVAPORATES
Soon enough, though, things went south again. Although the Court was prepared to conclude that the Fourth Amendment’s new focus on privacy banned warrantless wiretapping, it has had a very difficult time defining what else the concern for privacy ruled out.25
Under what became known as “the Katz test,” whether something is a search or not depends on whether the government invaded a person’s “reasonable expectation of privacy.” That’s the key phrase. The Katz Court said that “[w]hat a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” At the same time, though, “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”26
Superficially, this “knowingly exposes” test makes sense. Just as it is reasonable to expect privacy for some activities in a public space, like using a pay phone, even in a private place, privacy can be forgone. If you stand in front of a plate glass window in the middle of the day, with pedestrians and police about, and murder someone, you can’t really “reasonably” expect the people to avert their eyes and ignore this, even if it is in your own home. You’ve “knowingly exposed” your actions for the world to see.
Ultimately, though, the Supreme Court’s attempt to identify police activity that violated our “reasonable expectations of privacy” collapsed. Two things killed it. The first was the justices’ inability, which we have seen consistently, to stand firm anytime a majority of them perceived that protecting our personal security might limit the government’s ability to control crime. The second was a flood of new technologies.
It came to pass that no matter what law enforcement did to get itself into position to spy, the Supreme Court would conclude people had “knowingly exposed” their conduct. In California v. Ciraolo, an anonymous tipster told the police that the defendants were growing marijuana in their backyard. The defendants had erected not one, but two fences—the outer one at six feet, the inner one at ten—clearly strong measures to keep the backyard private. Conceding that no one could see in from street level, the Supreme Court nonetheless said that the fences “might not shield these plants from the eyes of a citizen or a policeman perched on the top of a truck or a two-level bus.” Of course, that isn’t what the police did—how frequent are double-decker buses in Santa Clara, California? Rather, they “secured a private plane” and flew over the house at 1,000 feet. Still, the justices decided by a 5–4 vote, the defendants had no “legitimate expectation of privacy” because they had “knowingly exposed” their backyard to the public view: “Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed.” Really? The chance that someone would look out of a commercial plane, recognize marijuana, manage to connect that to the specific street address, and decide to notify the police was, as the dissenters pointed out, “virtually nonexistent.” “It is no accident,” they said, “that, as a matter of common experience, many people build fences around their residential areas, but few build roofs over their backyard.”27
Similarly, in California v. Greenwood, the justices signed off on the police searching through people’s trash on the equally imaginary ground that by putting it out for municipal collectors, the defendants “exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection.” It “is common knowledge,” the justices said, that “plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.” Once again, though, none of that had happened. Rather, the defendants had put their trash out on the curb in opaque bags, precisely as the law required them to do. The police had asked the trash collector to nab the defendant’s trash and hand it over to them; they then pawed through it. Had “animals, children, scavengers” or “snoops” strewn the Greenwood trash in the yard so that police or others had seen drug paraphernalia, the government would not have been complicit. But given what actually happened, it is a bit hard to know what the justices meant when they said, “[T]he police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public.”28
The GPS tracking of Abdo Alwareeth was built on a similarly shaky foundation. United States v. Knotts, decided in 1983, was the first case to sign off on electronic location tracking. Acting on a tip that someone was buying chemicals used to manufacture drugs, the police arranged for a beeper to be placed in a canister of the chemicals, so that after it was picked up they could follow it to its destination. The beeper led the police to a drug lab. The justices said tracking the car containing the chemicals was fine because “[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” The automobile driver, according to the justices, had “voluntarily conveyed” his whereabouts “to anyone who wanted to look.” Yet again, though, this is not what happened. The police lost track of the canister at one point, hardly a surprise given that the driver, deliberately attempting to keep his whereabouts private, engaged in “evasive maneuvers.” So the police used a helicopter to relocate the beeper signal. Obviously, members of the public are not flying around like the Jetsons in helicopters tracking one another.29
The cake, though, may well go to Chief Justice Burger’s opinion in yet another overflight case, in which the justices approved the government’s taking pictures inside a Dow Chemical facility after plant officials refused access. The lower court described how the government employed the “finest precision aerial camera available,” which cost more than $22,000, and was mounted on an aircraft “able to ‘provide photographic stability, fast mobility and flight endurance for precision photography.’” Seeking to make this seem utterly ordinary, the majority described it as a “standard floor-mounted precision aerial camera.” Explaining the Chief Justice in blasé fashion: “The photographs at issue in this case are essentially like those commonly used in mapmaking. Any person with an airplane and an aerial camera could readily duplicate them.” Indeed.30
The problem with the justices’ approach in these cases should be apparent. The Fourth Amendment only kicks in where people have a “reasonable expectation of privacy”; that expectation does not exist if we “knowingly expose” what we are doing to the public. Fair enough so far. But if by “knowingly expose” it means “[a]ny person with an airplane and an aerial camera,” can see us, or the government can install a beeper and follow us via helicopter, it is clear we are not going to have much in the way of Fourth Amendment rights at all.
BACKPEDALING AGAINST TECHNOLOGY
More recent years have seen the justices, frightened by the shadow of their own creation, backpedaling. But even when the justices appear to take the idea of constitutionally protected privacy seriously, they still have something going against them: technology. Modern technology is effectively erasing the distinction so critical in Katz: between what we knowingly expose to the public and what we seek to keep private. And it is this problem that the Supreme Court cannot seem to get its collective head around.
In approving the use of the beeper to track the car in Knotts, the justices explained that the Fourth Amendment did not prohibit the police from “augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them.” “Insofar as respondent’s complaint seems to be simply that scientific devices such as the beeper enabled the police to be more effective in detecting crime … [w]e have never equated police efficiency with unconstitutionality.”31
The question is how far one allows law enforcement to go in “augmenting” human senses before it becomes a search requiring at least a warrant and probable cause. After all, that is exactly what technology does. In Katz itself, hadn’t the agents simply “augment[ed]” their “sensory faculties” by putting a tap on the phone to improve their ability to overhear what Katz was saying as he placed his bets? If there are no limits on the ability of law enforcement to use technology to augment its faculties, we will have no privacy left.32
The first serious attempt by the justices to restore privacy in the face of advancing technology came in Kyllo v. United States, a 2001 case involving the use of a thermal heat detector. Acting on a tip that Kyllo was growing pot at home, officers used an Agema Thermovision 210 to detect a high level of infrared radiation coming off one part of the roof. This suggested Kyllo was using grow lamps. Armed with that, the tip, and Kyllo’s utility bills, they then got a warrant. Four members of the Court were up to their old tricks. “All that the infrared camera did,” they said, was what “the ordinary use of the senses might enable a neighbor or passerby” to do—notice the heat emanating from a building. As if a passerby on the street could somehow sense the heat from the grow lamps coming off the roof.33
The five-person Kyllo majority, though, with Justice Scalia writing the opinion, tried to put limits on law enforcement using technology to “see” inside our homes. Absent a warrant, the Court held, police could not employ “sense-enhancing technology” to obtain “any information regarding the interior of the home” that could not otherwise have been obtained without being physically present inside.34
The problem is that, like a radioactive isotope, Kyllo’s seemingly rights-protective opinion will necessarily decay. That is because of a critical caveat Justice Scalia added to his test. The ban on sense-enhancing technology to discover what goes on in a house, he wrote, holds only so long as “the technology is not in the general public use.”35
Given the current pace of technology, soon everything law enforcement possesses might be “in general public use.” Thermal heat sensors are readily available for purchase—there’s even a smartphone app. Go ahead, google it. Justice Scalia himself dropped a footnote in Kyllo to point out that the Department of Justice was working on new surveillance technology, including a “Radar Flashlight” that “will enable law enforcement officers to detect individuals through interior building walls.” Drones already are flying all over the place: Does that mean the government is now free to hover them outside our windows and over our backyards?36
Ultimately, though, it was Abdo Alwareeth’s bête noir, GPS tracking, which made clear the limits of the Supreme Court’s ability to protect our privacy. In United States v. Jones, the government had attached a GPS device to a suspected drug dealer’s car, tracking him for a month, using satellites that gave the car’s location within 5–100 feet, collecting “more than 2,000 pages of data.” Was this a search? Didn’t Knotts allow the tracking of vehicles?37
Although the justices decided unanimously that the GPS tracking in Jones was a “search,” they found themselves unable to agree on a reason for that result. Hemmed in by the Knotts beeper case, which they did not overrule, and which had held that we have no expectation of privacy in our whereabouts on public streets, the justices splintered on the question of what exactly the government had done wrong. They could not even say how much GPS tracking was too much.38
Justice Scalia—who again wrote for the majority in Jones—went back to the future: because government agents had “physically occupied private property for the purpose of obtaining information” (i.e., installed a GPS device on his car) this was a search. If that sounds just like Olmstead, it should. Katz, he explained, added privacy to the list of things protected by the Fourth Amendment, but it did not take away the importance of actual invasions of property rights in determining whether something was a search. Basically, because the police had trespassed by installing the beeper to track Jones, it was a search.39
While this sounds promising—now we have more protection, i.e., privacy plus immunity from physical intrusion—in reality it (like his test in Kyllo) offers cold comfort. The government already no longer needs to rely on physical intrusions to track us; most of us carry our GPS trackers in our pocket in the guise of cell phones. The government has installed television cameras in thousands of locations, and many police cars have them also. These systems already are being used, in combination with license plate recognition technology, to determine the whereabouts of individuals. Our own cars have onboard computers that record our location, and we use toll payment systems that do the same.40
But at least Justice Scalia had a test. The concurring justices, led by Justice Alito, simply threw up their arms. Reiterating that under Knotts “relatively short-term monitoring” of location on public streets poses no constitutional problem, Justice Alito concluded that “use of longer-term GPS monitoring in investigations of most offenses” crossed the line. But he could offer no clue where the line is between “relatively short-term” and “longer-term.” He didn’t say which of “most offenses” could not be uncovered by long-term GPS surveillance, and which could. The opinion was altogether noteworthy for its inability to say anything specific about what the government could or could not do. The Jones decision has left the lower courts in utter disarray as to what sort of location tracking—or any other use of technology for that matter—constitutes a “search.” 41
In his Jones opinion, Justice Alito did make an extraordinarily important point about how the decreasing cost of technology was likely to leave us all vulnerable to government spying. “In the pre-computer age,” he explained, the greatest impediment to government spying was resources: “Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken.” He’s right. In 1954, Los Angeles’s police chief said keeping a suspect under “constant and close surveillance”—as was done to Jones and Alwareeth—would be “not only more costly than any police department can afford, but in the vast majority of cases it is impossible.” Such surveillance, Justice Alito pointed out, would involve “a large team of agents, multiple vehicles, and perhaps aerial assistance.” For that reason, it would happen only in “an investigation of unusual importance.” But no more. “Devices like the one used in the present case … make long-term monitoring relatively easy and cheap.” 42
The problem is clear: the prevalence of increasingly inexpensive technology eliminates the distinction between what we keep private and what we display in public, be it on the street or in the supposed privacy of our homes. Location tracking reveals where we are at all times. Malware, mikes, and cameras make it possible to see and hear us whenever we are near a computer. Radar and thermal devices reveal our movements and our possessions. Overflight haunts us. In technology’s hands, we have neither privacy, nor what the Fourth Amendment really protects: security, in our “persons, houses, papers, and effects.”
THE OTHER KATZ SOLUTION: SOCIAL CONVENTION
For all the apparent confusion it created, Katz also contained the seeds of a solution.
Katz can be read as making social convention determinative of when we have a reasonable expectation of privacy. In other words, one interpretation of the Katz decision is that whether the government is conducting a “search” that requires it to have probable cause, and get a warrant, properly rests on societal norms about when we all ought to be able to expect to have our privacy respected. “The critical fact in this case,” wrote Justice Harlan in Katz, “is that [o]ne who occupies” a telephone 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.” “Surely entitled” is big talk, but it was not at all out of place—because everyone in Katz knew what the social norms of the time were. You went into that phone booth precisely to get the sort of privacy that people would then afford you.43
It’s both true and unavoidable, as Justice Alito noted in Jones, that technology may alter social convention. That is exactly what the law must take account of. Technology invariably is going to shift the way we interact with one another, and what our expectations of appropriate social behavior are. The law must be concerned with how people understand their privacy in the world in which we actually live. And it is to those expectations that law enforcement must adhere.
The telephone provides an apt example of social convention changing the meaning of privacy, even explaining the differing conclusions in Olmstead and Katz, the cases of the bootlegger and the bettor. Plenty of folks alive today can remember picking up the phone and hearing others’ conversations. “Party lines” were familiar well into the 1960s, and more than one nosy neighbor would listen in. Calls were placed through live operators, who—at least in a small town—seemed to know everyone’s business. New York City’s Police Commissioner Arthur Woods in 1916 made the point that “[t]elephone conversations … cannot be private in a way that letters can be, since the employees of the telephone company cannot help hearing parts of conversations and may, if they are inclined, easily hear all.” But by 1967 such eavesdropping was frowned upon, and there simply was no way to get around the fact that in nailing Katz, the government was spying in a socially unacceptable fashion: “To read the Constitution more narrowly,” said the Katz Court, getting it exactly right, “is to ignore the vital role that the public telephone has come to play in private communication.” 44
Because the reasonable expectation of privacy test properly incorporates social convention, it is true that there will be hard cases—even for the most mundane of technologies. In a case out of Washington State, for example, an officer—acting on a report of someone growing pot—looked in the window of a mobile home with a flashlight, discovering marijuana and paraphernalia. The Washington Supreme Court leaned heavily on social convention in concluding this was not a search. “An officer may act as any reasonably respectful citizen.” People, the justices said, commonly walk up to one another’s front doors and peer in their windows. They also use flashlights: “in this state” it “would be an expected device for someone to use approaching a mobile home in a rural area at dusk or after nightfall.” Still, there was room to doubt this seemingly obvious conclusion. The dissent felt the officer—who had also trespassed by going further onto the property to check out a shed, and had peered in a back window of the home as well—had wandered too far off the permissible “access route” to the house. Do “reasonably respectful” citizens do that?45
The real problem in this area, though, is not the difficulty of determining social convention in most cases; it is once again the judges’ lack of fortitude to make law enforcement adhere to acceptable social norms. Judge Kozinski hit the nail on the head in Pineda-Moreno when he said that his colleagues simply lacked the will to constrain law enforcement, the privacy of all of us be damned. In the Greenwood trash case, the majority, in support of its argument that we have no expectation of privacy in our trash, quoted an article about “journalistic ‘trashpicking,’” which said that “evidently … everybody does it,” citing as an example Henry Kissinger’s trash being combed through by a tabloid when he was Secretary of State. As the dissent pointed out, however, the public “roundly condemned” this, calling it “a disgusting invasion of personal privacy” and “indefensible … as civilized behavior.” In complete disregard of social convention, courts have approved overflights of glass ceilings, secret video cameras fixed onto poles outside of homes, and the use of night-vision goggles to peer through windows. Though the technology exists for law enforcement to do all these things, none of it is cricket—at least not without probable cause and a warrant.46
Lest there be any doubt about where social convention stands, it is instructive to see how the justices and other public officials react when the shoe is on the other foot. In Portland, for example, officials went berserk when a local newspaper decided to paw through their trash to make a point about police spying. The brouhaha began when the Portland police did a “garbage pull” on one of their colleagues with whom they had a vendetta, finding—among other things—a “bloody tampon” that they sent off for a drug screen. A local judge disapproved the trash drop—relying of course on the Oregon Constitution, because, as we have seen, the federal Constitution has nothing to say about this. The local DA and police chief then challenged the wisdom of the judge’s decision, believing trash drops a valuable tool. So Willamette Week decided to see what was in their trash. When reporters came to show the police chief what they’d found, he said “This is very cheap” and tossed them out of his office. The mayor had stronger things to say: “I consider Willamette Week’s actions in this matter to be potentially illegal and absolutely unscrupulous and reprehensible. I will consider all my legal options in response to their actions.” The mayor and police chief were right; what Willamette Week did was outrageous. But the germane question is why the Supreme Court thinks it is okay for the police to do the same sort of thing, without warrant or probable cause.47
Justice Scalia—who was with the majority in allowing trash drops in Greenwood—had a similar negative reaction when, in 2009, a Fordham professor had his class engage in a “teaching moment”—assembling a dossier on the justice by trolling the Internet and seeing what they could find. They found a lot: what TV shows and food he likes, his home address and phone number, his wife’s email address. Justice Scalia had set himself up for it. At a conference he’d scoffed at Internet and personal privacy. When confronted with the class project, though, Justice Scalia was, to say the least, displeased. He called the exercise “abominably poor judgment,” and snidely added that because the professor “was not teaching a course on judgment, I presume he felt no obligation to display any.” 48
There is simply no excuse for courts inviting the police to ignore the norms of society. People can physically stand on toilet seats and peer into the next stall, but it’s not at all acceptable, and for that reason cops shouldn’t be allowed to either—at least not without probable cause and a warrant. As Judge Kozinski said in Pineda-Moreno, lambasting the lackluster diligence of his colleagues, “To say that the police may do to your property what urchins might do spells the end of Fourth Amendment protections.” 49
SOLVING HARD CASES
Because social conventions change, there are going to be hard cases, of course. But neither the police nor the courts need to figure out on their own what social convention permits. The tools for “policing with permission” are available to help, and should be used.
Warrants
To the extent law enforcement wants greater clarity in any given case, there is an easy answer: get a warrant. In many of the cases in which courts have waved a green flag at the police after the fact, a warrant would have been utterly obtainable. The government did get a warrant in Jones; they just failed to comply with it by attaching the GPS after the deadline, and in the wrong jurisdiction to boot. And surely in cases like Rose, the marijuana flashlight case from Washington State, where the tipster is a known citizen who could be prosecuted for sending the police on a false mission, detailed allegations of why they think the law is being violated should provide the police with ample probable cause. Investigating marijuana growing was hardly an emergency that justified skipping over getting a warrant before snooping around.50
If the government decides to spy without getting court permission on the front end, then courts should be extra-reluctant to push the boundaries of the Fourth Amendment on the back end by deeming what the government did in that case not to be a search. If the government can get a warrant in close cases, it should. It is true that in some cases it is tougher to develop probable cause than in others—a problem we’ll tackle in the next chapter. Only when cause is absent, though, should courts struggle with this difficult question of whether a search even occurred. If there was probable cause, and doubt about whether a warrant was necessary, the right answer is to get a warrant. If courts are quick to say that what police did was not even a “search”—and thus placing it wholly outside the Fourth Amendment—the police will never bother to get an independent opinion from a magistrate. That is precisely how and why the privacy of all of us is at risk.
The Legislative Solution
Emerging technologies present two very real sorts of problems. If social convention allows something, then the police don’t need a warrant. Yet it can be difficult for courts to know precisely what is socially acceptable. In addition, for some of these technologies, we have to ask whether, even if the police have probable cause, a warrant is enough protection.
Take drone technology. Drones have the capability of changing our world, in many ways for the better. They can be used for fire patrol, traffic snarls, locating lost children. But the fact that drones are remarkably cheaper than their aerial predecessors means there also could be widespread abuse. The Federal Aviation Administration had licensed just over 300 drones as of 2013; that number is expected to top 30,000 by 2020. “Hummingbird” drones can hover outside our windows with cameras and microphones. “Mosquito” drones can be remotely controlled and take blood samples without our knowing. Is a warrant enough to justify law enforcement in utilizing these technologies, or are further rules necessary?51
Automatic license plate recognition, or ALPR, provides another apt example. On the one hand, all that ALPRs record are license plates visible to anyone in public. On the other hand, using nothing but a camera and an optical character reader, this technology allows law enforcement to harvest the location of millions of vehicles, and store that information in searchable databases. ALPR has enormous potential as a crime-fighting tool. A 2011 survey found 71 percent of police agencies used license plate readers. And 85 percent of agencies planned on acquiring or increasing their use of license plate readers over the next five years. In Montgomery County, Maryland, for example, one officer using an ALPR for some hundred hours over a twenty-seven-day period collected almost 50,000 license plate “reads.” These reads resulted in more than two hundred traffic citations, identified twenty-six suspended licenses, sixteen emission violations, four stolen and one expired set of plates, and three arrests.52
But just as ALPR has promise, it also poses a threat to civil liberties. The International Association of Chiefs of Police, which has done excellent work in this area, explained that ALPR cameras “may collect the license plate numbers of vehicles parked at public locations that, even though public, might be considered sensitive, such as doctor’s offices, clinics, churches, and addiction counseling meetings, among others.” A sergeant with the Los Angeles Sheriff’s Department said of ALPR data: “I’d keep it indefinitely if I could”; it is not “Big Brother”; and “[i]t’s doing what a deputy normally does in his routine duties.” That’s not true: the normal deputy can’t collect 50,000 license plate numbers, let alone millions, and store them away in a database that can be used to reconstruct a vehicle’s movements over a week, month, or year.53
What is needed to address the difficult questions with regard to emerging technology is policy—the sort courts just can’t give, and democratically accountable bodies should, as we saw in Part I. Justice Alito made precisely this point in the Jones case. “In circumstances involving dramatic technological change,” he wrote, “the best solution to privacy concerns may be legislative.” That is because “[a] legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.” The ACLU’s chief technologist, Christopher Soghoian, said much the same thing regarding the use of malware: “We have transitioned into a world where law enforcement is hacking into people’s computers, and we have never had a public debate.”54
Where judges and others have gone wrong, though, is in thinking that courts must act if legislatures have not. Soghoian pointed out that in the absence of legislative action, “[j]udges are having to make up these powers as they go along.” Alito said the same in Jones. Ruing the fact that “[t]o date … Congress and most States have not enacted statutes regulating the use of GPS tracking technology for law enforcement purposes,” he concluded the justices were forced to do “[t]he best that we can do”—i.e., to decide whether or not it is a search.55
This is simply incorrect: there is something else the judges not only could do, but should, which is to refuse to allow emerging technologies to be used by the police for surveillance until rules are in place to regulate them. As we discussed in detail in Chapter 4, courts do not have to say “aye” or “nay” to police activities. All they need do is ask the question “Is the police use of long-term GPS tracking (or malware, or drones) authorized by law?” General statutes authorizing policing agencies to enforce the law, adopted in some cases decades before such technology was even imaginable, ought not to be held to authorize anything the police choose to do. That is particularly the case with regard to the new policing, which uses some of these technologies—such as ALPR—not just when there is probable cause to suspect someone of wrongdoing, but on all of us at any time the police wish, without cause or warrants.
Instead of forcing democratic debate about the use of technology for spying, the justices have done the opposite, choosing to disregard relevant legislative enactments. In Greenwood, local law required the trash be put on the curb, it prohibited the trash collector from going through that trash, and the California Supreme Court had held that as a matter of state law, one had a right of privacy in one’s trash. No matter, said the Supreme Court: “We have never intimated that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs.” In United States v. Dunn government agents went over a perimeter fence, one interior fence, two additional barbed-wire interior fences, and a final wooden fence on the defendant’s 198-acre ranch located half a mile from a public road, then used a flashlight to see a drug lab in a barn located near a private home. The justices ignored the fact that state law prohibited just such trespassing, holding (somewhat incoherently) that it was not a search at all because it occurred in an “open field” rather than the home or its surrounds.56
If state law forbids what the cops have done, that should be the end of the matter. What is more telling of social convention than the laws adopted by democratically accountable bodies? It is possible those laws will fall out of date. But the way to discern this is for courts to follow them—even if it means limiting the police—unless and until democratic processes change the law.57
As we have seen time and again, giving people a voice makes for very different policy. Take data retention policies for ALPR. Is it a coincidence that under rules drafted by the New Jersey Attorney General, ALPR data can be kept for five years, while under a democratically adopted Maine statute it is twenty-one days? The District of Columbia was set to adopt a widespread system of closed-circuit video surveillance, like that omnipresent in the United Kingdom. The use of such cameras, originally part of the fight against terror, was to be expanded “to deter and/or eliminate crime in residential and commercial areas.” Community leaders applauded them as a popular solution to crime. But then the D.C. government did what it should, and engaged in rule-making, inviting public participation. The result was a significantly scaled-down project that included provisions for erasing the recordings on a regular basis.58
In the face of rapidly changing technology, what is required of judges is caution, some humility about their ability to understand what expectations of privacy society deems reasonable, and deference to democratic processes. In one of the first of the current era’s electronic communications cases to reach the Supreme Court, City of Ontario v. Quon, the justices recognized their own limitations. The case involved a police officer’s use of a department beeper for private communications—including sending sexually explicit messages. The Court said it must “proceed with care” because “[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society becomes clear.” “[I]t is uncertain how workplace norms, and the law’s treatment of them, will evolve.” The justices concluded, “Prudence counsels caution,” lest any single case, with its own peculiar facts, establish “far-reaching premises” about privacy expectations.59
The Court in Quon had it exactly right. What is needed when technology is at issue is ongoing democratic intervention. The justices should force it to occur by refusing to allow the use of new surveillance technologies until they are authorized by public action.
To be clear, deeming more activity a “search” puts law enforcement in a little bit of a bind. Because searches require probable cause (and often a warrant), there will be instances in which law enforcement officials have reason to suspect something is up, but not enough evidence to add up to probable cause—i.e., enough to search or get a warrant. What do they do then? This has proven a particularly contentious issue in the Internet and cellular age, and so that is where we will turn next.