Free Essay On Communications Technology And Olmstead V. United States
One of the most interesting and overlooked aspects of the advent of communications technology in American society is that it dealt an unprecedented blow to the supremacy of the testimony of white men in courts of law. Previously, the word of a white man would almost always carry more weight than that of a woman, a child, or an adult male member of a minority group. In order to explore the anxiety created by the introduction of visual and audio evidence into the American legal system, this essay will examine the first Supreme Court ruling on wiretapping, Olmstead v. United States.
Before one can truly understand the disruptive effect of Olmstead it is necessary to first appreciate the state of communications technology prior to 1928. Electronic communications technology had been in use since the establishment of the national telegraph system mid-1800, which transmitted messages across the country by electric wire. As the public became more accustomed to the use of the telegraph, some became aware that it was also possible to secretly listen in on telegraph messages as they were being transmitted by tapping to the electric wires that were conveying the message. This action would later become known as “wiretapping.” Later, when the telegraph was displaced by the radical new technology known as the telephone during the late 1800s, the act of wire-tapping telegraph lines was extended to phone lines. Similar to a telegraph line, the unauthorized listening of conversations on a phone line could be easily be accomplished by tapping into the electric wire used to transmit the call. This naturally became known as phone-tapping.
Eventually the government came to realize the security problems that unregulated phone- and wire-tapping could cause for the private sector as well as the privacy of private citizens. Prior to 1918, the regulation of electronic surveillance was left completely to the individual states. Indeed, some states, early as 1860, had begun to outlaw wiretapping. However, most state regulations, where it was available, were not strictly enforced and did not apply nationally. In 1918, Congress passed a bill outlawing the unauthorized tapping of “any telegraph or telephone line” (OTA, 1985). This was the first attempt by the government to create a nationwide legal regime to regulate electronic surveillance. Interestingly, Congress’ purpose in enacting the electronic surveillance law was not to protect the privacy of the nation’s citizen or private industry. Instead, it was Congress’ attempt to temporarily ensure the nation’s security during World War I. To be sure, after the end of the war, Congress allowed federal electronic surveillance law to lapse. By the late 1920s, however, unauthorized electronic surveillance was made illegal under the law of a majority of states (OTA, 1985). No wanting to be left behind, in 1927, Congress passed the Radio Act (Doyle, 2012). The Radio Act, however, only made the public and private interception of radio waves illegal; it did not reintroduce prohibitions against wire and phone tapping (Doyle, 2012).
The regulation of electronic communications technology changed forever in 1928. That was year that United State Supreme Court (Court) decided the case Olmstead v. United States (OTA, 1985). The question before the Court was if state’s evidence obtained through a wiretap of a private phone was constitutional. In the case, defendant Roy Olmstead was suspected by federal law enforcement officers of being involved in the illegal important and export of alcohol. In order to gain evidence against Olmstead, the federal agents wire-tapped the phone lines leading into his office. The wiretaps were installed, however, without judicial approval. Evidence obtained from the wiretaps was eventually used to convict Olmstead. Olmstead later appealed his conviction.
In analyzing the legality of the agents’ actions, the Court focused on whether there was an actual physical seizure of or trespass on Olmstead’s property by federal agents. According to the Court, its prior decision maintained that t was illegal for evidence to be obtained by actually entering a suspect’s house or taking something tangible. After some refection, the Court determined that there was not. The Court points out that because people can use phones to speak to people over great distances, connecting to the wires that were not actually in Olmstead’s office was not a violation of the Constitution because it did not require a physical examination of Olmstead’s person or the a trespass onto his property. Instead, it amounted to an examination of intangible conversations that were made from a place that federal officers had a legal right to be. Furthermore, the Court found that the electronic surveillance performed by the agents did not violate the Fifth Amendment because Olmstead was not forced to speak or disclose information on the phone. He entered into the conversations completely of his own free will. Finally, the Court reiterated that Congress had the power to more strictly regulate electronic surveillance but up until that point had not.
The Olmstead ruling was tremendously significant for electronic surveillance. Indeed, under Olmstead, any surveillance would be legal if it was accomplished without a physical intrusion or trespass onto the property of the target, and that it was focused on intangible evidence such as a conversation or a physical action that the target voluntarily commits. If the information the target is conveying is physically and publically exposed or available, then it can be legally obtained by electronic surveillance.
The importance of Olmstead was not simply based on the majority opinion. What would later prove as significant is the dissent by Justice Louis Brandeis. In opposing the majority opinion, Brandies argued that the Court’s reliance on the principle of physical trespass failed to take into consideration the facts of modern life that will increasingly rely on technology to function. According to Brandies, modern technology gave the government a number of ways to infringe on the privacy of the public without committing a physical intrusion. As Brandies saw it, these new forms of privacy invasion would be more “sinister” then the state simply breaking into a citizen’s house to search for contraband. Accordingly, Brandies argued that the Court should have and would need to expand its understanding of privacy and the protection of the Fourth Amendment to adequately uphold the Constitution.
In 1967, the Court addressed Brandies’ concerns in the case Katz v. United States (OTA, 24). Like in Olmstead, federal law enforcement officers came to suspect that Katz was involved in illegal activity, namely intra-state gambling. In observing him, they noticed that he would often use a particular phone booth. Accordingly, they placed a “bug” outside the phone booth. The officers’ placement of the bug would satisfy the requirement of Olmstead in that it did not involve a physical intrusion; it was done in a public place; and the information sought was a conversation Katz voluntarily made. The information recoded using the bugs were subsequently used to convict Katz at trial. Katz appealed his conviction arguing that the use of the bugs violated his Fourth Amendment rights. Turning from the Olmstead standard, the Court found in favor of Katz. According to the Court, a physical trespass was no longer the only factor needed to determine if a person’s Fourth Amendment rights were violated by electronic surveillance. The Court found, that although Katz’s conversation satisfied the Olmstead requirements, what was more important was that Katz wanted to protect his conversation from being heard. As a result, the Court decided that the Fourth Amendment protects a citizen when he (1) wants to protect his action or speech from being perceived, and (2) takes steps to protect his actions or speech. This is true even if done in public. Justice Harlan summed up the principle in his concurrence which stated, when analyzing the legality of electronic surveillance; courts should consider what a person’s reasonable expectation to privacy is. If that expectation is violated by the surveillance, then it is illegal. The Fourth Amendment, as the Court stated, “protects people, not places” (Hussey, 2007).
In 2012, after over 40 years of neglect under Katz, the Court revitalized the Olmstead theory of physical trespass in the case United States v. Jones. In Jones, when nightclub owner Antoine Jones came under suspicion of drug trafficking, law enforcement officers, without a warrant, walked up his driveway and physically attached a GPS tracking device to his car. Over the next month, the officers were able to obtain enough evidence about Jones to convict him for conspiracy to distribute cocaine (Jones, 2012). Jones appealed his conviction arguing that the evidence transmitted by the GPS device was illegally obtained. The Supreme Court agreed even while acknowledging the existence of other protections to a person’s privacy, such as Katz’s reasonable expectation of privacy. In analyzing Jones’ argument, the Court focused on how the GPS device was attached to Jones’ car. According to the Court, by entering Jones’ home (walking on the driveway) and physically touching his effects (planting the device on the car) the officers had physically intruded or trespassed onto his property for the purpose of obtaining information. Moreover, they did so without a warrant or otherwise justified by the Fourth Amendment, under Olmstead, they had violated the Constitution. Jones reiterated the Court’s traditional determination that even in modern times, electronic surveillance was that was performed without a physical trespass was legal and evidence obtained through such surveillance could indeed be used in trial.
While the focus of the Court’s decision’s in Olmstead, Katz and Jones was the regulation of the behavior of law enforcement officers in their fight against crime, it can and has also been used by the public against the illegal activities of the police. To be sure, in the last year electronic surveillance has played a fundamental roll in illustrating how police departments across the country treat minority, especially African-American, communities. For example, in April 2015, Officer Michael T. Slager of the North Charleston Police Department shot and killed Walter Scott following a routine traffic stop. After a preliminary investigation of the shooting, prosecutors decided to charge Slager with murder. Ordinarily, police officers are rarely charged with outright murder for shooting people, especially when the victim is a suspect in a crime. However, the difference in this case was that the shooting was captured on video from the phone of a bystander. The video showed Slager firing eight shot into the back of a fleeing, unarmed Scott for seemingly no reason at all. Moreover, the video showed that Slager had lied in making his original report that Scott was armed. By all accounts, if the bystander video had not turned up, no one would have questioned Slager’s account of what happened.
Doyle, Charles. “Privacy: An overview of the Electronic Communications Privacy Act.” Congressional Research Service. CRS, 09 Oct. 2012. Web.18 Apr. 2015. <http://fas.org/sgp/crs/misc/R41733.pdf>
“Federal Government Information Technology: Electronic Surveillance and Civil Liberties.” United States Congress. Office of Technology Assistance (OTA), Oct. 1985. Web. 18 Apr. 2015. <http://ota.fas.org/reports/8509.pdf>
Hussey, Phillip, R. “The evolution of electronic surveillance: balancing national security and civil liberties.” Georgia State University. Georgia State University, 15 Jun. 2007. Web. 18 Apr. 2015. <http://scholarworks.gsu.edu/cgi/viewcontent.cgi?article=1001&context=political_science_hontheses>
Katz v. United States, 389 U.S. 347. U.S. Supreme Court. 1967. Web. 18 Apr. 2015
Olmstead v. United States, 277 U.S. 438. U.S. Supreme Court. 1928. Web. 18 Apr. 2015
United States v. Jones, 132 S.Ct. 945. U.S. Supreme Court. 2012. Web. 18 Apr. 2015.