Federal Cases: Olmstead v. United States, 277 U.S. 438 (1928)

Olmstead came out of the Federal District of Western Washington. Olmstead and several others were charged and convicted of number of crimes related to their large, prohibition era, liquor smuggling and distribution operation. As part of a Federal investigation agents placed wiretaps on the telephone lines going into Olmstead's downtown Seattle office, as well his home, and other co-conspirators homes.

Olmstead is a fascinating case. Most readers will be familiar with it, as it is often in casebooks and articles, presented as an example of the “bad-old days” when telephone wiretapping was not considered protected by the Fourth Amendment. The majority opinion is interesting in that it provides brief capsules of several prior cases where the court found the Fourth Amendment did apply to when some non-tangible physical intrusion occurred in the course of obtaining evidence without a warrant. Each supporting case, outlined in the majority opinion, described circumstances where government agents physically entered a constitutionally protected space, such as a home, or office. Where government agents seized physical items, such as, papers and records, without a warrant. Chief Justice Taft, writing for the majority, used the these cases that describe circumstances that were within the protection of the Fourth Amendment – to argue that it did not protect against wiretaps installed without “breeching” the target's home or office (or other protected space). The petitioner argued by analogy that since postal mail was protected, outside of the home or office, physical trespass was not required to trigger Fourth Amendment protections. Taft remarked that, even though the Fourth Amendment protected mail, it did not proscribe wiretaps. Taft found that a telephone wiretap was not a search. “There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants.” Olmstead. Even though prior cases had argued to “liberally construe [the Fourth Amendment] to effect the purpose of the framers of the Constitution in the interest of liberty.” Taft retrenches back to a more limited view refusing to “[enlarge] ... the language [of the Fourth Amendment] beyond the possible practical meaning of houses, persons, papers, and effects, or so to apply the words search and seizure as to forbid hearing or sight.”

Even though Olmstead operated to limited the protections of the Fourth Amendment it is considered to be source of much of the modern view of the Fourth Amendment. This comes from a modern appreciation of Justice Brandeis’s dissenting opinion, which many today, consider to be a very progressive analysis of privacy and the Fourth Amendment:

The progress of science in furnishing the government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed 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. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. 'That places the liberty of every man in the hands of every petty officer' was said by James Otis of much lesser intrusions than these….Can it be that the Constitution affords no protection against such invasions of individual security? (Footnotes omitted.) Olmstead (Brandeis dissent).

Federal Understanding: How we got where we are today

In order to understand how Article 1, Section 7 can be used to advance computer-related privacy law into the 21st century it is helpful to review where we are, and how we got here. Fourth Amendment protections, as articulated by the US Supreme Court (as well as many state courts) has traced a parabolic path that begins with physical-place based interpretations, reaching a high point that exchanged the physical limitations of privacy for an abstract view of privacy, finally, more recently, falling back down to a physical place-based interpretation. Olmstead v. U.S., 277 U.S. 438 (1928) marks the place-based viewpoint. In, Berger v. New York., 388 U.S. 41 (1967), the arc reached what may have been it highest point, defining privacy in way that most closely resembles common sense. Next, Katz v. U.S., 389 U.S. 347 (1967), smoothed and flattened the curve, promulgating the idea that “the Fourth Amendment protects people not places.” Finally, the arc of the curve has begun to turn downward in Kyllo v. U.S. 533 U.S. 27 (2001), where the U.S. Supreme Court, faced a use of advanced technology that tested the prior boundaries of the Fourth Amendment. The cases, Olmstead, Berger, Katz, and Kyllo will be reviewed briefly to highlight the US Supreme Court’s effort to describe the contours of the Fourth Amendment in the face of new technology. In addition, U.S. v. Miller 425 U.S. 435 (1976) will be reviewed because of its important role of strip Fourth Amendment protections from business records placed under the control of third parties.