Which civil liberty was established through the supreme courts katz v. united states decision?

Introduction

The 1927 case of Olmstead v. United States proved to be an incredibly important and influential decision.  The case revolved around the prosecution of Washington state resident Roy Olmstead for attempting to smuggle and sell alcohol in violation of Prohibition. After suspecting Olmstead for years, the government gathered evidence by wiretapping Olmstead’s office phones without first obtaining a warrant. Olmstead argued that the police had violated his Fourth and Fifth Amendment rights. The Supreme Court, in a 5 – 4 decision, ruled that the government could use the evidence obtained from wiretapping. The “Exclusionary Rule,” which holds that illegally-obtained evidence may not be used against defendants at trial, was in force at the time. However Chief Justice William Taft cited previous decisions which characterized the Fourth Amendment as only applying to physical search and seizure.

This case is notable not just for the immediate outcome, but also for the important ideas in the dissent. Justice Louis Brandeis wrote an influential dissent that was the foundation for future court decisions. In it, he attacked the proposition that the government had the power to wiretap phones without warrant, arguing that there is no difference between listening to a phone call and reading a sealed letter. Brandeis argued that the Founders had “conferred against the government, the right to be let alone – the most comprehensive of rights and the right most favored by civilized men.” Furthermore Brandeis advanced the idea that the ‘unclean hands’ principle, which is the idea that courts should not aid a plaintiff who has acted unethically with regards to the subject of the case, applies to the federal government. The government should not violate the laws of states to gather evidence (wiretapping was illegal in many states, including Washington) and then use that evidence to prosecute people.

The Brandeis dissent was widely cited and came to prominence in later Supreme Court decisions. The 1967 Katz v. U.S. case overturned the Olmstead ruling, holding that warrants were in fact required to wiretap payphones, with Brandeis’s dissent held as a primary influence. Its description of the reasonable expectation of privacy citizens have has been enshrined in law and constitutional interpretation, and has implications for a range of issues, from abortion rights to the freedom of the press.

Resources

• The United States Bill of Rights
• Olmstead v. United States, The Oyez Project
• Brandeis Dissent, Federal Judicial Center
• Katz v. United States, The Oyez Project

Questions

1. What role does the right to privacy play in modern political issues?

Gen. Keith B. Alexander, director of the National Security Agency and head of the U.S. Cyber Command, answers questions from lawmakers on Capitol Hill in 2013 during a Senate Appropriations Committee hearing. It was his first public appearance before Congress since revelations that the electronic surveillance agency is sweeping up Americans' phone and Internet records in its quest to investigate terrorist threats. (AP Photo/J. Scott Applewhite, used with permission from the Associated Press)

The framers of the U.S. Constitution understood how eavesdropping might intrude on privacy and chill free speech. However, the framers could not have foreseen the technological advances that now aid eavesdropping.

Electronic eavesdropping has become critical law enforcement tool

Interception of private communications via electronic surveillance has become a critical tool of law enforcement and has been used for decades to assist in gathering evidence.

Thousands of convictions have centered on evidence gathered from electronic eavesdropping, whether by physically tapping into land telecommunication lines or by intercepting wireless electronic signals. This use of wiretaps set free speech on a collision course with the government. In a post–September 11, 2001, world, wiretapping has moved to the forefront of American legal concerns with the expanded use of electronic surveillance by government agencies conducting the War on Terror.

Court originally upheld wiretaps

In Olmstead v. United States (1928), the Supreme Court held that the wiretaps attached by law enforcement to the phone lines of prohibition conspirators, including Roy Olmstead, were constitutional because there had been no physical trespass.

Chief Justice William Howard Taft asserted that a person who connects a phone to lines that extend outside of a home with the intent to project his or her voice outside has no expectation of privacy with regard to the ensuing conversations. However, he argued for judicial restraint when he suggested that Congress could make wiretaps inadmissible by passing legislation prohibiting or regulating their use.

In 1967, Court shifted to protect individual liberties in face of wiretapping

In Katz v. United States (1967), the Court held that the wiretapping of public phone booths for listening to conversations without a warrant, regardless of no physical trespass taking place, was unconstitutional, essentially reversing Olmstead.

Justice Potter Stewart concluded in Katz that “wherever a man may be, he is entitled to know that he will be free.”

These two cases illustrate a shift in the Court’s thinking. In Olmstead the Court showed deference to the state and its efforts to gather evidence of a crime, whereas Katz illustrates a clear move towards greater protection of individual liberties.

Concerns raised about Terrorist Surveillance Program

In October 2001, President George W. Bush issued Executive Order 13228 — referred to as the Terrorist Surveillance Program (TSP) — that authorized the National Security Administration (NSA) to track communications between individuals abroad and domestic American suspects.

It was not until December 2005 that the existence of the program was exposed by the New York Times. An article in the newspaper stated that the program was targeting U.S. citizens and was being conducted without a judicially authorized warrant.

NSA surveillance program creates First Amendment concerns

First Amendment concerns emerge when the NSA eavesdropping program utilizes data-mining operations in the organization’s search for terrorists. The random collection of information from land-line calls, cell phones, and e-mail creates uneasiness about the limits of government surveillance of citizens.

The Supreme Court has previously held that listening to conversations of U.S. citizens without a warrant is unconstitutional and violates core principles of the Bill of Rights, and the Fourth Amendment regulates the ability of the government to infringe upon a citizen’s First Amendment right to free speech as well as the privacy of that speech.

Ruling that wiretapping without warrants violates First Amendment was vacated by 6th Circuit

On August 17, 2006, in American Civil Liberties Union v. National Security Agency/Central Security Service (E.D.Mich.), U.S. District Judge Anna Diggs Taylor issued an injunction against the Bush administration and the NSA and ordered the TSP be discontinued.

The court held that the TSP violated “the Separation of Powers doctrine; the First and Fourth Amendments of the United States Constitution and the statutory law.”

The ACLU argued that the wiretapping violated its and its clients' right to free speech in their communication with people outside of the United States.

The injunction was intended to end the warrantless wiretapping by the NSA, which justified the action as essential in fighting the War on Terror. The district court held that the Foreign Intelligence Surveillance Act (FISA) of 1978 is still law, and that the NSA should have sought warrants from the secret FISA court. The FISA court was intended to place a wall between intelligence information gathering and criminal investigations.

However, the Sixth Circuit Court of Appeals vacated Judge Diggs’s ruling in July 2007, finding that the ACLU and the other plaintiffs lacked standing to challenge the federal policies.

Supreme Court rejected arguments to establish standing in government wiretapping case

In Clapper v. Amnesty International (2013), petitioners argued about the possible “chilling effect” that wiretaps conducted under FISA might have on their First Amendment Rights. 

They argued that there was “an objectively reasonable likelihood” that the government would acquire their communications, and that this risk had led them to pursue costly alternatives like foreign travel rather than phone calls.  

The federal district court had dismissed the case for lack of standing, but the Second U.S. Circuit Court of Appeals had reversed this ruling. Justice Samuel Alito wrote the decision for five members of the Court, rejecting their arguments to establish standing. 

Court has said there is expectation of privacy for cell phone location information

However, in a ruling that has been noted as pushing back on certain mass surveillance activities, the Supreme Court in Carpenter v. United States (2018) ruled that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through cell-site location information.

This article first was published in 2009 and has been updated. The primary contributor was Paul Pope, a professor at Montana State University, Billings. It has been updated by other First Amendment Encyclopedia contributors.

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