The Supreme Court and Electronic Surveillance:
A Study of Originalism, the Fourth Amendment,
and the Powers of Law Enforcement.
Mark Morley, S.J.
Loyola University Chicago
[email protected]
Lewis-Bremner Residence
6525 N. Sheridan Rd.
Chicago, Il 60626 21 December 1993
In framing a government which is to be
administered by men over men, the great difficulty
lies in this: you must first enable the government
to control the governed; and in the next place oblige
it to control itself.
Federalist #51 (Madison)
Introduction
The Constitution of the United States calls for a separation
of powers between the executive, legislative, and judicial
branches of the federal government. The boundaries of these
powers have been in contention since their inception over two
hundred years ago. One of the current battle grounds is the
Fourth Amendment.1 In recent decades the advent of electronic
communications has necessitated a balancing act between
individual privacy and government surveillance. Over sixty years
ago the Supreme Court heard its first case dealing with the
telephone and decided it had no constitutional jurisdiction to
place restrictions upon law enforcement wiretapping.2 In the
1960s the Supreme Court began to overturn its previous position
____________________
1The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue, but
upon probable cause, supported by Oath of affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
2Olmstead v. United States, 277 U.S. 438 (1927).
1
in favor of protecting individual privacy.3 This decision was
representative of a transition from a moderate to a more overtly
political Supreme Court. As the Supreme Court effectively
extended its powers, Congress responded with the first
legislation drafted to restrict electronic surveillance by the
Executive.4 Inevitably, communication technologies like the
telephone began to combine with innovative computer technologies,
and the protection of privacy afforded by these laws quickly
became antiquated. In the 1980s Congress attempted to catch up
with technological change by implementing a new privacy act.5
These developments clearly indicate that Congress and the
Supreme Court have tended to perceive the advancement of
communication technologies as a threat to individual privacy.
Therefore, they have tried to protect citizens from surveillance
by intrusive law enforcement agencies. In other words, the
concern of Congress and the Supreme Court has been to maintain a
balance between civil liberties and the powers of the Executive.
While Congress was enshrining civil rights, the Executive
concerned itself with enforcing the law and protecting national
security. Consequently, its surveillance capabilities have
continued to expand in step with the advancement of communication
technologies. Moreover, it has tried to maintain control over the
development of cryptology in order to safeguard classified
information. In recent years, however, the advent of
microcomputers along with sophisticated encryption software has
placed the ability to secure privacy in the hands of individual
citizens. In other words, the technological tables have turned
such that individual privacy can be protected without recourse to
the civil rights legislated by Congress and upheld by the Supreme
Court. As a result, the Executive no longer sees cryptology
simply as a means to safeguard national security. On the
contrary, since cryptology in the private sector inhibits
government surveillance, it is perceived as a threat to national
security. In order to maintain the surveillance capabilities that
have become indispensable to law enforcement, the National
Security Agency is currently seeking ways to regulate cryptology
in the private sector.
Thus, Congress finds itself pressured by the Executive to
grant the power of law enforcement explicit priority over civil
liberties. However, any new legislation must stand up in the
Supreme Court to an interpretation of the Fourth Amendment that
has come to endorse a right to privacy. Such an abrupt turning of
the legislative tide reveals the interests of all three branches
of the federal government. In particular, it exposes the
____________________
3Katz v. United States, 389 U.S. 347 (1967).
4Title III of the Omnibus Crime Control and Safe Street Act
of 1968.
5Electronic Communications Privacy Act of 1986.
2
political character of the Supreme Court.
According to legal theorists known as originalists, the
Framers of the Constitution never intended the Supreme Court to
play a role in American politics. In other words, judges must
interpret the Constitution without bias to the extent that they
refrain from adjudication when the law does not directly address
the matter at hand. If non-elected officials move past this
boundary, they step into the rightful jurisdiction of the
legislature and inappropriately upset the balance of powers. In
the extreme view, the justices of the Supreme Court corrupted
their powers when they jumped on the civil rights political
wagon.
According to legal theorists known as activists, the Supreme
Court cannot act in a neutral manner. Even to refrain from
adjudication is to take a political stand. Once the Supreme Court
began to advocate civil rights it exposed its political function
such that it can never return to its mythical legal purity.
Rather than pretending to be unbiased, judges must address the
injustices embedded in social structures. Yet activists
themselves are divided between a liberal interpretation of the
law which is inherently conservative and a radical interpretation
which calls into question the legitimacy of legal institutions.
Individual privacy versus government surveillance is only
one among many Constitutional controversies which highlight the
current legitimation crisis of the Supreme Court. Perhaps what is
unique to this particular issue is the role technological change
has played in swiftly expanding and then quickly challenging the
protection of the Fourth Amendment. In this essay we will trace
the technological development of electronic communications along
with the corresponding legal developments in order to unmask the
decisive political role of the Supreme Court. In particular, we
will be focusing on the developments which have led to the
current controversy regarding electronic mail and data
encryption.
The Supreme Court and Electronic Surveillance
Physical intrusion by law enforcement agents was the only
means of "search and seizure" available to the government at the
time the Constitution was drafted. The Fourth Amendment requires
that agents obtain a warrant before a search may be legally
conducted. In order to protect citizens from "unreasonable"
intrusion, a warrant must be based upon probable cause, issued by
a magistrate, and executed within a time limit. Moreover, it must
specify the place to be searched and the objects to be seized.6
The question of government wiretapping under the Fourth
Amendment was first addressed by the Supreme Court in Olmstead v.
____________________
6See L.A. Wintersheimer, Privacy Versus Law Enforcement -
___
Can the Two Be Reconciled? (Cincinnati Law Review 1988, 57:315-
320).
3
United States.7 Evidence against the defendants in Olmstead was
obtained by intercepting telephones messages of the defendants.8
The interception was achieved by inserting small wires into the
ordinary telephone wires without any physical trespass into the
defendants' property.9 The defendants claimed that the use of
evidence obtained in this manner violated the Fourth Amendment as
an unreasonable search and seizure.10 The Olmstead Court
interpreted "search and seizure" to entail only a physical
intrusion.11 Since the interception in this case did not
involve a physical trespass, the Court held that there was no
Fourth Amendment violation. Hence, wiretapping was held not to
constitute a search and seizure.12 By employing an
interpretation of the Constitution which sought the original
meaning of legal terms, the Olmstead Court decided not to extend
the protection of the Fourth Amendment to visual or aural
searches which do not entail a physical entry of the
premises.13 In fact, the Court stated that extending the
meaning of the term "search and seizure" to include the
interception of telephone conversation by means of wiretapping
could only be made by direct legislation from Congress.14
The same principles were applied by the Supreme Court once
again in Goldman v. United States.15 In this case federal
agents used an amplifying device to monitor conversation through
a wall. The Court ruled that, despite the trespass of adjoining
property, there was no violation of the Fourth Amendment which
would make the information obtained inadmissible. It should be
note that the Court refused to grant the defendant a claim to an
expectation of privacy.16
In Silverman v. United States, however, the government used
a microphone which penetrated a hole in the wall of a row house
to an adjoining heating duct in the defendant's home. The Supreme
____________________
7277 U.S. 438 (1928).
8Id. at 455.
___
9Id. at 456.
__
10Id. at 457.
__
11Id. at 464.
___
12Id. at 466.
___
13Id. at 464-65.
__
14Id. at 465-466.
___
15316 U.S. 129 (1942).
16Id. at 134-135.
__
4
Court held that this constituted a physical intrusion which
violated the Fourth Amendment.17 Silverman may be viewed as a
weakening of the Olmstead decision in so far as the agents did
not actually step foot into the defendant's premises.
In Berger v. New York, the Supreme Court held that a New
York statute regulating electronic surveillance violated the
Fourth Amendment.18 The Court's decision was based upon the
technical deficiencies of the procedures outlined for obtaining a
warrant. In fact, the statute's requirements for a warrant lacked
the particularity of the crime, a description of the things to be
seized, and the notification of the parties involved.19 Unlike
previous cases, however, physical intrusion was not considered
the crucial factor for determining a violation of the Fourth
Amendment. It would seem that the Court could have ruled that no
warrant was required provided there was no physical trespass. By
striking down a statute regulating electronic surveillance the
Court moved one step closer toward an extension of the breath of
the Fourth Amendment. Although the Court chose not insist upon
the Constitutional need for a warrant, it did judge that new
legislation regulating warrants for electronic surveillance must
meet the same requirements as old legislation regulating physical
intrusions under the Fourth Amendment.
Less than a year later, however, Olmstead was overruled by
Katz v. United States.20 In this case the government installed
a recording device to the exterior of a telephone booth which was
regularly used by the defendant.21 The Supreme Court held that
such surveillance by the government constituted an illegal search
and seizure because there was not probable cause to bug the
telephone booth.22 The government tried to justify its activity
by pointing out that there was no physical penetration of the
telephone booth.23 While the Court acknowledged that the Fourth
Amendment was thought at one time to apply only to the search and
seizure of tangible property, it openly departed from a narrow
interpretation and extended the meaning of "search and seizure"
to include the recording of oral statements. The Court based its
decision upon the principle that the Fourth Amendment protects
____________________
17Id. at 506-512.
___
18388 U.S. 41 (1967).
19Id. at 58-60.
___
20389 U.S. 347 (1967).
21Id. at 348.
___
22Id. at 353.
___
23Id. at 352.
___
5
people not places.24 Thus, it refused to make an exception to
the requirement of probable cause even though no tangible goods
were seized.25 Consequently, the Court disregarded the grounds
based upon physical intrusion and developed its own principle: a
warrant is required whenever the individual has a reasonable
expectation of privacy.26 In order to appreciate the break the
Katz Court made from previous rulings on electronic surveillance
we need to look at the opinion of the court (delivered by Justice
Stewart) in some detail.
In particular, we see that the Katz Court extended the
boundary of Fourth Amendment protection by means of an abstract
notion of privacy which was unacceptable in prior decisions. The
emphasis on privacy as distinct from place becomes clear when we
note that the Court rejected the defendant's formulation of the
constitutional issues. The defendant based his questions upon:
(1) whether a telephone booth is a constitutionally protected
area, and (2) whether physical penetration of a constitutionally
protected area is necessary in order to claim a violation of the
Fourth Amendment.27 Firstly, the Court rejected the phrase
"constitutionally protected area." Secondly, it held that the
Fourth Amendment cannot be interpreted as a "general
constitutional `right to privacy`." It qualified this by stating
that, although the Fourth Amendment protects individual privacy
against specific kinds of government intrusion, its protection
goes further than the realm of private property. As for a
person's "general right to privacy," such protection is left to
the law of the individual States. Having made this qualification,
the Court proceeded to develop a notion of a right to privacy
applicable to the Fourth Amendment. The issue is no longer a
matter of protecting places. What an individual "seeks to
preserve as private, even in an area accessible to the public,
may be constitutionally protected."28 When someone steps into a
telephone booth and closes the door there is an expectation of
privacy. While the Olmstead Court considered an extension of the
boundary of protection to be outside its jurisdiction, the Katz
Court held that a more narrow definition of privacy would neglect
the "vital role that the public telephone has come to play in
private communication."29 In effect, the Katz Court extended
the boundary of the Fourth Amendment by shifting the debate from
____________________
24Id. at 353.
___
25Id. at 357-358.
___
26Id. at 359.
___
27Id. at 349-350.
___
28Id. at 350.
___
29Id. at 352.
___
6
the realm of private property to the more abstract realm of
personal privacy. Hence, it was able to rule that government
recording of the defendant's words "violated the privacy upon
which he justifiably relied while using the telephone booth and
thus constituted a `search and seizure` within the meaning of the
Fourth Amendment."30
Thus, the Katz Court was able to openly depart from what it
called Olmstead's "narrow view" and claim that the "Fourth
Amendment governs not only the seizure of tangible items, but
extends as well to the recording of oral statements, overheard
without any `technical trespass under ... local property
law.'"31 Having established that electronic surveillance does
require a warrant, the Court proceeded to spell out guidelines
for obtaining a warrant. Since electronic surveillance was
treated as if it constituted a physical intrusion, no exceptions
were made to the requirements for a warrant given in the text of
the Fourth Amendment and developed in common law.
In presenting its guidelines, the Court was particularly
concerned that electronic surveillance not be left merely to the
discretion of law enforcement agents. Yet it explicitly stated
that, although a situation involving "national security" may be
an exception to the requirement of prior authorization, this case
did not lend itself to such a question.32 It is worth noting
that Justices Douglas and Brennan stated in a concurring opinion
that the Executive Branch, including the President, has no
grounds to engage in electronic surveillance without a warrant,
even in matters of national security.33
In order to appreciate the significance of the activist
interpretation employed in the decision of Katz, we need to
examine the concurring opinion of Justice Harlan and the
dissenting opinion of Justice Black.
In his concurring opinion, Justice Harlan pointed out that
no longer associating privacy with place requires a rule for what
constitutes protection of people. In his analysis he demonstrates
that the Court has established a twofold requirement for privacy:
(1) that a person have exhibited an actual (subjective)
expectation of privacy, and (2) that the expectation be one that
society is prepared to recognize as "reasonable."34 It is
significant that such a rule appears no where in the text of the
Constitution. In fact, this is precisely the kind of judgment the
Olmstead Court refused to make because it considered such an
____________________
30Id. at 353.
___
31Id. at 353.
___
32Id. at 359.
___
33Id. at 359-360.
___
34Id. at 361.
___
7
extension of the meaning of "search and seizure" to be the proper
jurisdiction of Congress. In making this rule explicit, Justice
Harlan does not concerned himself with upsetting the balance of
powers in the branches of the federal government.
In his dissenting opinion, Justice Black claims that the
decision rendered by the Katz Court effectively amounts to a
revision of the Fourth Amendment. When we examine his argument we
see that Black employs an originalist interpretation of the
Constitution which cannot be reconciled with an activist stand.
The philosophy of original understanding is based upon the
neutral application of a legal principle, which includes
neutrality in deriving, defining, and applying the principle. A
judge is to seek the original understanding of the words in the
text of the Constitution in order that the Court may remain a
legal rather than a political institution. Hence, originalism
holds that the Court is not free to define the scope of a
principle as it sees fit, for the outcome of the decision would
then be based upon grounds that are not contained in the original
understanding of the principle it purports to apply. Such grounds
cannot come from the legislature, and hence, must come from the
personal preferences of the justices.35
Justice Black bases his dissenting decision on the meaning
of the term "eavesdropping." According to his analysis, the Katz
Court incorrectly defined "wiretapping" as a form of search and
seizure rather than defining it more accurately as "eavesdropping
carried on by electronic means."36 Black interprets the Court's
opinion as opening the door for the enactment and the enforcement
of laws regulating wiretapping in accord with the Fourth
Amendment despite the obstacles the Berger Court set in the way
of wiretapping laws. In order to appreciate these obstacles, we
must recall that the Berger Court demanded the same procedure for
obtaining a warrant for electronic surveillance as for physical
intrusion. Yet a warrant for search and seizure normally requires
that the named parties be notified. In the case of electronic
surveillance, however, such a requirement obviously defeats the
effectiveness of the method of intrusion. Although Black held
that such obstacles to legislation regulating wiretapping must be
removed, the failure of the Court to make a distinction between
"search and seizure" and "eavesdropping" incorrectly extended the
Fourth Amendment to include wiretapping.
In arguing for his opinion, Black upholds two convictions:
(1) the words of the Fourth Amendment do not bear the meaning
given them by the Court's decision, and (2) it is not the proper
role of the Supreme Court to "rewrite the Amendment in order `to
bring in it in harmony with the times` and thus reach a result
____________________
35For a thorough presentation of originalist approach to the
Constitution see Chapter 7 of, R. Bork, The Tempting of America
________________________
(New York: The Free Press, 1990).
36389 U.S. 364.
8
that many people believe to be desirable."37 Thus, we see that
Black is employing two fundamental tenets of originalism:
(1) justices must seek the original meaning of the words of the
text, and (2) justices are not to rewrite the scope of a
principle where the Constitution is silent for this is the proper
role of the democratically elected legislature. After quoting the
entire Fourth Amendment, Black establishes that the "Framers'
purpose" was to protect tangible things and not to protect
conversation which cannot be searched or seized according to the
normal meaning of such words. Moreover, the Amendment refers to
things which must be described for they are already in existence.
Yet it is impossible to describe a future conversation. Hence,
Black concludes that the Fourth Amendment does not apply to
eavesdropping. Although wiretapping was unknown at the time of
the framing of the Bill of Rights, eavesdropping certainly was
practiced and could of being incorporated into the Fourth
Amendment.38
Black proceeds by giving an overview of Supreme Court cases
dealing the Fourth Amendment's applicability to eavesdropping.
Thus, he attempts to show that his opinion is consistent with the
Court's previous decisions, in particular, with all the relevant
cases from Olmstead through to Berger. He concludes that he is
simply applying the scope of the Fourth Amendment which the Court
has traditional followed and that the Katz Court has made a
distinctive break in order to include eavesdropping.39 In a
footnote, Black states that "the Court is promulgating new
doctrine instead of merely following what it `has long
held.`"40
According to Black, the Court has decided that a
conversation can be "seized."41 In light of his conviction that
it is not the place of the Supreme Court to "keep the
Constitution up to date," he claims that the Court does not have
the power to give new meaning to words, especially a meaning
which the words to do have in "common ordinary usage." To
exercise such power is to turn the Court into "a continuously
functioning constitutional convention." Black points out that
this shift in the Court's policy happened only recently and is
coincident with its "referring incessantly to the Fourth
Amendment not so much as a law against unreasonable searches and
seizures as one to protect an individual's privacy." Moreover, he
considers this an arbitrary substitution of the "Court's
____________________
37Id. at 364.
___
38Id. at 365-366.
___
39Id. at 386-389.
___
40Id. at 372 (footnote).
___
41Id. at 372.
___
9
language" for "Constitution's language."42 As another example
of a substitution in favor of a right to privacy, Black recalls
his dissenting opinion in Griswold v. Connecticut. There he held
that the Constitution does not provide a "right to privacy" that
protects individuals from laws which compromise privacy. The
conclusion of his dissenting opinion in Katz states:
No general right is created by the [Fourth] Amendment
so as to give this Court the unlimited power to hold
unconstitutional everything which affects privacy.
Certainly the Framers, well acquainted with the
excesses of governmental power, did not intend to grant
this Court such omnipotent lawmaking authority as that.
The history of governments proves that it is dangerous
to freedom to repose such powers in the courts.43
Given Black's originalist position, it is understandable that he
could not be reconciled with the Court's decision to extend the
protection of the Fourth Amendment to recording and wiretapping.
Although Black recognizes the legitimate need to regulate
wiretapping, he believed that the obstacles presented by the
Berger Court should have been dealt with in another manner. In
particular, he is concerned with the Court's adoption of rights
discourse. Rather than upholding a right to privacy by expanding
the meaning of "seizure" to include conversation, presumably
Black felt that the Court should have deferred to Congress in
order that the law be updated by amendment to the Constitution.
During the years following the decision in Katz, the Supreme
Court continued to uphold civil rights, such as an individual
right to privacy, in the face of technological developments in
other domains. In fact, it can be shown that the Supreme Court
has gradually moved from policies which tolerate technological
advances at the expense of individual rights to policies which
put decisions in the hands of individuals. In the nineteenth
century, the Court upheld statutes which called for the universal
vaccination of citizens. It also protected laws which authorized
the government to sterilize criminals. In the early twentieth
century, however, the Court opposed sterilization on the grounds
that basic human rights outweigh any potential harm to society
that may come from the children of criminals. In recent decades,
computerized data banks have enabled governments to compile
extensive records on citizens without their knowledge or consent.
While upholding the need of the state to compile data for
specific purposes, the Court has insisted that reasonable
measures be taken to maintain confidentiality. Just over fifteen
years ago, the Court decide that a woman's right to privacy
outweighs the state's interests in cases regarding abortion.
Finally, with the recent advancements in life-sustaining
technologies, the Court has upheld the individual's right to
____________________
42Id. at 373.
___
43Id. at 374.
___
10
withhold treatment despite a conflict with the traditions of the
medical profession. In general, the Court has displayed a
cautious attitude toward new technologies in favor of individual
rights. In particular, the Court has perceived the government's
widespread use of computer technologies as a threat to individual
privacy. Underlying these decisions, however, is a constitutional
philosophy which favors individual rights in the face of
technological change.44
Congress and the Regulation of Government Surveillance
Congress responded to the decision of the Supreme Court in
Katz with Title III of the Omnibus Crime Control and Safe Streets
Act of 1968.45 This legislation was enacted to regulate the use
of electronic surveillance by law enforcement agencies. By
effectively revising the Fourth Amendment to incorporate
wiretapping, the Court in Katz opened the way for the legislature
to enact regulations without recourse to the lengthy process of
constitutional amendment. Title III of Omnibus was only a part of
an act of Congress which found that "the high incidence of crime
in the United States threatens peace, security, and general
welfare of the Nation and its citizens."46 While attempting to
find new ways to "prevent crime," Congress tried to balance the
privacy interests of the individual with the legitimate means of
law enforcement by the state.
Title III was the first comprehensive piece of legislation
to address the issue of communications privacy.47 In
particular, it protected only two types of communications against
electronic eavesdropping: (1) telephone conversations and (2)
face-to-face communication.48 The law established the
requirement of a warrant for the interception of wire or oral
communications under circumstances where there is a reasonable
expectation of privacy.49 It also laid out specific procedures
for obtaining a warrant, including restrictions to electronic
surveillance which limit its use to certain types of criminal
____________________
44See D. Jones Merritt, The Constitution in a Brave New
___ __________________________________
World: A Century of Technological Change and Constitutional Law,
________________________________________________________________
Oregon Law Review, Vol. 69, Num. 1 (1990).
45 (Title III) 18 U.S.C. 2510-2520 (1968).
4618 U.S.C. Title I
47See R. W. Kastenmeier, D. Leavy, and D. Beier,
___
Communications Privacy: A Legislative Perspective, Wisconsin Law
__________________________________________________
Review 1989:715.
4818 U.S.C. 2516.
49Id. 2510.
___
11
investigations. In this way, Congress enacted legislation
designed to meet the technical demands of the Berger Court
regarding probable cause and to address the political concerns of
the Katz Court regarding the protection of individual privacy.
In a short period of time, technological change proved to
make Title III inadequate. By restricting itself specifically to
telephone wiretapping, its regulations could not be extended to
new communication technologies like cellular telephones and
electronic mail. As a result, these communications did not fall
under the Fourth Amendment's protection against illicit
government surveillance. Hence, Title III was criticized for its
failure to anticipate technological advancement.
In order to address the inadequacies of Title III, Congress
instituted the Electronic Communications Privacy Act of 1986
(ECPA).50 Its primary concern was to safeguard the right of
individual privacy from erosion due to technological advancement.
Hence, it extended Fourth Amendment protection to new
communication technologies such as cellular telephones, data
transmissions, and electronic mail. Unlike the design of
Title III, Congress tried to anticipate potential abuses
associated with developments such as multi-media technologies
which would fall under more than one classification of service.
The ECPA also expanded the scope of sites protected to include
not only public carriers such as telephone companies but also
private services such as corporate computers. Prior to the
enactment of the ECPA, no federal statute addressed the issue of
data interception. With the ECPA, electronic mail and data
transmissions are protected in manner that parallels the
protection of voice communications.51 Hence, government
interception of these types of communication is only permitted
under the restrictions of a warrant. However, the procedures
differ from those applicable to telephone wiretapping. For
example, court authorization for data interception, unlike
wiretapping, can be based upon suspicion of any federal
felony.52
In addition to technological change, Congress had to
consider political factors in drafting the ECPA. Protecting civil
rights is not without its difficulties. During the Reagan
Administration, bills supported by the Justice Department were
favored while ones opposed by it were likely defeated.
Consequently, the ECPA needed the support of the Department of
Justice in order to be signed by the President. However, the ECPA
bill was given very strong support from corporations.
(Communications providers wanted to ensure their customers that
____________________
5018 U.S.C. 2510-2520 (The ECPA is actually an amendment to
Omnibus which leaves much of Title III intact).
51Id. 2510(12).
___
52Id. 2518(3).
___
12
the new technologies would be protected.) As a result, the
success of the ECPA depended upon the support of civil liberties
groups, business interests, and law enforcement officials. By
enacting the ECPA, Congress not only preserved existing civil
liberties but also expanded protection of communications to
include government and private sector interception of data.53
The Executive and the Powers of Law Enforcement
The Constitution of the United States vests the President
with the powers of the Executive, including the power to enforce
the laws.54 At the time the Constitution was ratified, the
Fourth Amendment was included in order to protect citizens from
the unreasonable search and seizure of their goods by government
agents. With the development of communication technologies, the
Executive has expanded its capabilities to engaged in the
surveillance of citizens. In recent decades, the Supreme Court
has heard many cases which bear witness to the great interest law
enforcement agencies have in electronic surveillance. Moreover,
the civil rights movement bears witness to the great interest
citizens have in preventing their government from becoming an
Orwellian state. After decades of unrestricted electronic
surveillance, the Court's decision in Katz finally opened the
door for the first legislation to regulate wiretapping under the
Fourth Amendment. With Title III of Omnibus and the ECPA,
Congress placed limits upon the powers of the Executive in the
name of an individual right to privacy. Legal restrictions were
deemed necessary in order to protect individuals from the
ceaseless surveillance of Big Brother.
Given that the ECPA was designed to anticipate future
technological developments, it would seem that a lasting balance
between individual privacy and government surveillance has been
struck. Yet the ECPA did not anticipate the development of
private sector cryptology along with the growth of electronic
mail services. These technological developments enable
individuals to ensure the privacy of their communication without
recourse to civil rights legislation. A warrant may grant the
power to access personal data, but it is powerless to crack data
encryption. After years of negotiating restrictions upon the
legal powers of the Executive in the wake of expanding
communications technologies, law enforcement agencies now find
themselves seeking restrictions upon the technological powers of
individuals in the wake of expanding civil rights.
Government interest in restricting cryptology dates back to
____________________
53See Communications Privacy, pp. 733-737.
___
54Article II 2 declares "The President shall be Commander
in Chief of the Army and Navy of the United States ... ." while
3 states "... he shall take Care that the Laws be faithfully
executed, ... ."
13
legislation banning the export of cryptologic devices and related
research.55 At that time, the government saw cryptology as a
means to protect classified information. These laws placed
cryptology on a list of munitions, giving the President the
authority to regulate its development and deployment.56 In
recent decades, the National Security Agency (NSA) has been given
executive responsibility to regulate cryptologic standards for
classified and national security information. It develops its own
cryptosystems and appraises publicly available cryptosystems in
order to offers private sector corporations a guarantee of
security. In 1977, the NSA endorsed the Data Encryption Standard
(DES) issued by the National Bureau of Standards (NBS) for
nonclassified government and private sector cryptosystems.
However, recent technological developments, especially the
widespread growth of powerful private sector computers, have
forced the NSA not to renew its guarantee. In light of the
inadequacy of DES, the NSA made plans to issue its own
cryptosystem for both government and private sector information.
It argued that cryptologic research, development, and use by the
private sector threatens government security. In other words, the
NSA is seeking to control all cryptology, even private sector
cryptosystems, due to the reliance of national security upon
economic strength. To this end, the Reagan Administration drafted
the National Security Decision Directive 145.57 It was
withdrawn, however, after being severely criticized for the
imbalance of authority it gave to the President over private
sector information.58
In 1987, Congress enacted the Computer Security Act which
transferred the regulation of cryptology for unclassified
information to the National Institute of Standards and Technology
(NIST). Nevertheless, the NSA under the Bush Administration
continued to forge ahead in its attempts to regulate
cryptosystems. In 1991 it announced the development of the
Digital Signature Standard (DSS), and proposed that its system be
used for private sector security. At that time the NIST was about
to recommend a encryption method known as Rivest-Shamir-Adelman
(RSA), an algorithm patented by the Massachusetts Institute of
____________________
55The Mutual Security Act of 1954.
________________________________
56See C. B. Escobar, Nongovernmental Cryptology and Nation
___ _____________________________________
Security: The Government Seeking To Restrict Research,
________________________________________________________________
Computer/Law Journal, Vol. IV (1984).
57National Policy On Telecommunications and Automated
Information Systems Security, National Security Decision
Directive (Sept. 17, 1984).
58See R. A. Franks, The National Security Agency and Its
___ _______________________________________
Interference With Private Sector Computer Security, Iowa Law
_____________________________________________________
Review, 1015 (1987).
14
Technology. Within a few months, however, NIST endorsed the DSS.
Congress responded by establishing the Computer System Security
and Privacy Board which called for a national debate on the use
of cryptology.59
In April 1993, the Clinton Administration announced its
approval of the Clipper Chip, a cryptologic device designed by
engineers at the NIST for both voice and data communications. It
is intended for use by the private sector in order to secure
communications while at the same time enabling law enforcement
agencies to conduct surveillance. In other words, the device aims
at maintaining the government's ability to eavesdrop on private
communications in the face of private sector cryptology that
threatens current law enforcement practices. The plan for
implementing the Clipper Chip includes legislation which would
provide protection under the Fourth Amendment. Presumably, law
enforcement agents would require a warrant to be granted in
accordance with the same restrictions currently placed upon
wiretapping and the interception of electronic mail. The
ramifications of this controversial proposal, including its
constitutional implications, are presently under debate.60
Conclusion
No one denies the necessity of maintaining the integrity of
the Constitution, especially the protection afforded by the Bill
of Rights. Yet disputes do arise over whether it should be
accomplished without upsetting the balance of powers between the
executive, legislative, and judicial branches. In the case of
protecting individuals from unreasonable electronic surveillance,
we have seen that it was the Supreme Court which took the
initiative. By interpreting the meaning of the term "search and
seizure" to include the seizure of conversation, the Katz Court
expanded the breadth of the Fourth Amendment to include
electronic surveillance. From an originalist perspective, the
Court gravely upset the balance of powers by deriving, defining,
and applying a principle of privacy not explicitly found in the
text of the Constitution. From an activist perspective, the Katz
Court rightly took a biased stand in order to bring the Fourth
Amendment into accord with the technological circumstances and
political climate of the day.
After the Supreme Court made the first move towards
protecting individual privacy, Congress quickly responded with
legislation designed to restrict electronic surveillance by the
Executive. According to originalists, the political stand of the
Court in support of civil rights was a threat to freedom. In
____________________
59See J. A. Adams, Cryptography=privacy?, IEEE Spectrum,
___ _____________________
August 1992, pp. 29-35.
60See L. Arbetter, The Clipper Chip Debate, Security
___ __________________________
Management, August 1993, p. 8.
15
other words, by exerting their power into the political realm,
non-elected justices disregard the proper authority of elected
members of Congress. Yet in Katz we did not witness the collapse
of democracy. On the contrary, we saw the separation of powers
produce a prompt response by Congress, a response that checked
the powers of the Court and the Executive. Although the adherence
to original meaning defended by Justice Black and others is
credible, originalists cannot legitimately claim that their
method of constitutional interpretation is the only acceptable
approach to adjudication. They demand that the separation of
powers should be clearly defined. Yet the actual practice of
checks and balances reveals that the judiciary is political by
the very nature of the Constitution's design. Although the
Supreme Court is the weakest of the three branches, it has just
enough political power to agitate Congress and the Executive.
Even when the Court refrains from adjudication, a political
message is sent. Such was the case when the Olmstead Court called
upon Congress to legislate protection from wiretapping under the
Fourth Amendment.
Nevertheless, the activist method of constitutional
interpretation is not without its own difficulties. After two
decades of upholding civil rights, the Supreme Court now finds
itself facing unexpected technological circumstances and situated
within a very different political climate. At the time Congress
and the Court endorsed a right to privacy, individual citizens
lacked the technological means to protect themselves against
electronic surveillance. Thus, the law was the only obstacle to
surveillance. Today, however, private communications can be
established with a personal computer and sophisticated encryption
software. Hence, the Executive considers the new technologies a
threat to its ability to enforce the law and is taking measures
to maintain its electronic surveillance capabilities. Moreover,
Congress is becoming less concerned about civil rights and more
concerned about controlling the high rate of crime.61 What will
the Court do when it is called upon to evaluate laws intended to
protect the "rights" of law enforcement agencies? How will it
maintain its credibility?
The Supreme Court will eventually have to face the
constitutionality of "crime control" statutes designed to augment
the powers of law enforcement agencies. If the Court takes an
____________________
61In fact, the Senate is currently debating over S. 618, a
bill "To control and reduce violent crime." Among its many
provisions designed to increase the power of law enforcement
agencies is the following statute:
Sec. 545. Cooperation Of Telecommunications Providers
With Law Enforcement. It is the sense of Congress that
providers of electronic communications systems permit
the government to obtain the plain text contents of
voice, data, and other communications when
appropriately authorized by law.
16
originalist stand, it will remain silent. If it takes a liberal
activist stand, it will pit the liberties of citizens against the
powers of the state in a battle over civil rights. However, if
the Court takes a radical activist stand, it will move beyond
"rights discourse" in order to pressure Congress and the
Executive into addressing the vast disparity which is at the root
of a considerable amount of crime. Under these circumstances, the
Court may even employ its political power to instigate a
constitutional convention on racial and economic injustice.
Nonetheless, whichever theory of adjudication it chooses to
practice, the Court's resolutions will inevitably have political
repercussions.
17
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