Wiretapping, Olmstead, and Katz



My Country – Wiretapping

Justice Douglas spends three days investigating wiretapping. He called wiretapping a “blight on the civil liberties of the citizen.” I cannot believe that Justice Douglas would have liked the PATRIOT Act or any of the post 9/11 measures. He noted that in New York City alone in 1952, 58,000 orders for wiretapping were issued. This accounted for over 150 a day.

Forty-eight jurisdictions (the federal government, the District of Columbia, the Virgin Islands, Puerto Rico, and 44 states) currently have laws that authorize courts to issue orders permitting wire, oral, or electronic surveillance. The number of federal and state wiretaps reported in 2015 increased 17% from 2014.   Federal judges authorized  4,148 wiretaps, while state judges authorized 2,745 authorized   Compared to the applications approved during 2014, the number approved by federal judges increased 10 percent in 2015. The number approved by state judges increased 21 percent.  No wiretap applications were reported as denied in 2015.

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

Olmstead led a conspiracy to violate the National Prohibition Act by unlawfully possessing, transporting and importing alcohol. The government indicted seventy-two others in addition to the petitioners. Some were not apprehended, some were acquitted, and others pleaded guilty. The business had a large office building in Seattle with three telephone lines. They set up times to deliver and pick up the “stuff” along Puget Sound. And they ended up selling 200 cases of liquor a day.

However, federal prohibition officers only learned this information through intercepting telephone calls. They used small wires along the ordinary telephone lines from the residences of the leaders and those from the main office. They gathered information for months with many conversations contributing to criminal acts. But the question remained: did this violate the Fourth and Fifth Amendments?

Majority Opinion

The Court recalled that in Weeks v. United States, the Fourth Amendment applied to sealed letters and packages in the mail. The police could only open materials with a warrant. Chief Justice Taft failed to see a connection between the mail and wiretapping.

The United States takes no such care of telegraph or telephone messages as of mailed sealed letters. The Amendment does not forbid what was done here. 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.

By the invention of the telephone fifty years ago and its application for the purpose of extending communications, one can talk with another at a far distant place. The language of the Amendment cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office. The intervening wires are not part of his house or office any more than are the highways along which they are stretched.

When criticized for his opinion, Justice Taft mocked his foes as he wrote to a friend: ‘If they think we are going to be frightened in our effort to stand by the law and give the public a chance to punish criminals, they are mistaken, even though we are condemned for lack of high ideals.'”

Justice Brandeis’s Dissent

Justice Brandeis wrote some of the most well-known dissenting words in Olmstead. We finally got into the right to privacy that so many of us believe to exist due to wiretapping. But only through the works of Louis Brandeis do we have it.

[T]he right to be let alone — the most comprehensive of rights, and the right most valued by civilized men.

Brandeis hated the methods used here. His conclusion remarkedly states my strongest sense of liberty:

Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.

As we currently watch a new administration take over where truth and decency play no part, we see it spread. We have a Montana candidate bodyslamming reporters. The concept of “fake news” comes off of everyone’s tongue as truth. Any sketchy act becomes a “what about the other side?”

The Right to Be Let Alone

Justice Brandeis believed we needed to look deeper than just case law or statutory statements. We needed to reflect on what the Founders wanted and what they sought. Because they had the Enlightenment at their back, they built a Constitution and country with that nature built in.

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

Imagine how this country would look today if we took Justice Brandeis’s approach. If the conduct of our officials reflected this norm, how different would America look?

But nevertheless, Justice Brandeis’s opinion failed to get five votes. But it won the day – in 1967.

Katz v. United States, 389 U.S. 347 (1967)

The Government introduced evidence of Katz’s end of telephone conversations. FBI agents overhead overheard the conversations through attached electronic listening and recording device to the outside of the public telephone booth from which he had placed his calls. However, Justice Potter Stewart noted that much of the Olmstead decision had become eroded over time. At this point, the government’s activities to listen to Katz’s conversation would violate the privacy he justifiably relied on while using the telephone booth. Therefore, this would constitute a search and seizure under the Fourth Amendment. The fact that the electronic device did not enter the walls of the phone booth did not matter under the Constitution.

However, the question remained if the government entered into this search and seizure lawfully. Although the FBI agents may have imposed a self-restraint, the judges did not require any. No estimation of probable cause or compelling purpose was outlined. No guidelines existed on how to report on the findings. Therefore, this action did not implement the least intrusive means consistent with the ends. Therefore, the evidence was unconstitutional gathered.

Justice Douglas’s Concurrence

Justice Douglas felt it necessary to reply to a concurrence from Justice Byron White who argued that the executive branch could authorize a wiretap for national security purposes. Seems pretty on point for our world today.

Douglas argued that the President or the Attorney General is a magistrate and therefore could not be a neutral party in such a request. He argued that the Constitution entitles spies and saboteurs Fourth Amendment rights just as much as gambles. Additionally, he found no distinction under the Fourth Amendment between types of crimes. He even laid out that if the Founders had specific restrictions on the Fourth Amendment that they would have laid them out like they did with the specific requirements for treason.


Justice Douglas discussed various attempts to relax wiretapping laws.

Wire tapping, it is said, is essential or important in detection of crime. The use of torture is also effective in getting confessions from suspects. But a civilized society does not sanction it. Wire tapping may catch criminals who might other wise escape. But a degree of inefficiency is a price we necessarily pay for a civilized, decent society. The free state offers what a police state denies – the priacy of the home, the dignity and peace of mind of the individual. That precious right to be let alone is violated once hte police enter our conversation.

As technology changes, the Fourth Amendment must change. Recently, the Court had to investigate if a thermal-imaging device to detect relative amounts of heat emanating from a private home constitutes an unconstitutional search in violation of the Fourth Amendment. (Answer: The Court held that this was an illegal search and seizure.) But Justice Brandeis laid out how privacy remains a component of the Fourth Amendment. And though we got farther in this with the Griswold case written by Justice Douglas, we get some of the most prescient words central to liberty yet.


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