Justice Brandeis and the Fourth Amendment in the Digital Age

Eighty-six years ago, in a case called Olmstead v. United States, one of the great Justices of the Supreme Court, Louis Brandeis, wrote a dissenting opinion that survives as a foundation for whatever right of privacy exists or remains under our Constitution.

In Olmstead, the Supreme Court dealt with electronic eavesdropping for the first time, and it dropped the ball, holding that the new technology in question—wiretapping—was not a search under the Fourth Amendment unless it involved an actual, physical trespass on a person’s property to plant a bug. As Dean Chemerinsky noted recently in the ABA Journal, it took almost four decades for the Court to reverse this rule, when it held in Katz v. United States (1967) that wiretapping is inherently a search whenever the government invades a reasonable expectation of privacy.

Well, the technology may have evolved, but the issues remain the same, and in most respects, the Brandeis dissent remains as relevant today as it was in 1928. Some of the Justice’s words, in fact, resonate more today than they likely did then, even if some of the language is a little dated.

If the opinion were rewritten today in the language of a 21st-century Justice, here is how it might read.

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The defendants in this case object to the admission of the government’s wiretap evidence on two grounds: first, that wiretapping is an unreasonable search and seizure in violation of the Fourth Amendment, and second, that using the intercepted conversations as evidence compels the defendants to be witnesses against themselves in violation of the Fifth Amendment.

The government makes no attempt to defend the methods employed by its agents. In fact, it concedes that if wiretapping is a search and seizure under the Fourth Amendment then the wiretapping here was an unreasonable search and seizure, and the evidence obtained was inadmissible. But it argues instead that the Fourth Amendment wasn’t meant to protect telephone conversations.

Let’s begin by stepping back to examine history. When the Fourth and Fifth Amendments were adopted, government power came in only a few flavors, or maybe just two: force and violence. Those were the ways in which government could coerce self-incrimination. It could compel a person to testify by force, including by torturing him if necessary, and it could break into his home to seize his private papers and other personal belongings. So we drafted the specific language of the two Amendments to sanctify the home and one’s private life.

But times are changing. Nowadays, the government has far more subtle and effective ways of broadcasting in court what is whispered in the home. And the progress of science and technology means the government’s power will not plateau with the wiretap.

Someday, in fact, we may develop ways by which the government can reproduce papers in court without removing them from drawers, or expose the most intimate occurrences of the home without stepping foot inside, or probe even our unexpressed thoughts, beliefs, and emotions.

Can it be that the Constitution affords no protection against such invasions of individual security?

Previously, this Court has held that the Constitution protects a written letter that is sealed and entrusted to the mail service. But there is, in essence, no difference between the sealed letter and the private telephone message. In fact, the evil incident to invading phone lines is far greater than that involved in tampering with the mails. Whenever a phone line is tapped, the privacy of people on both ends of the line is invaded, and all conversations between them on any subject may be overhead, even if it be proper, confidential, or privileged. Moreover, the tapping of one man’s phone line involves the tapping of every other person’s line whom he calls or who may call him. Indeed, as instruments of government oppression, the tools of the imperial British—like writs of assistance and the loathsome general warrant—have nothing on the wiretap.

Time and again, this Court has read the Fourth Amendment to give effect to its underlying principles rather than interpreting it so literally as to frustrate its purpose. Is there any “search” or “seizure” under the ordinary meaning of those terms when we compel a defendant to obey a subpoena to produce documents? Technically, no. But this Court has held that such evidence is inadmissible if it’s produced by a subpoena that was issued on the basis of unlawfully-obtained information. And we’ve given the Fifth Amendment an equally broad construction. Time and again, under this Court’s decisions, it hasn’t mattered whether the government has seized from one’s home, office, or elsewhere, and it hasn’t mattered whether the government has seized by force, by fraud, or through the orderly process of a court’s subpoena power. From these decisions, it follows necessarily that the Fourth Amendment may be violated by the government’s reading one’s papers without physically seizing them—or even without touching them—and that the use of their contents in any criminal proceeding violates the Fifth Amendment as well.

Why? Because the makers of our Constitution set their sights not just on life and liberty but on the pursuit of happiness. They understood the significance of man’s spiritual nature, his feelings, and 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 on us, as against the government, the right to be let alone—the most comprehensive of rights and the one most valued by civilized men. To protect that right, every unjustifiable intrusion by the government on the privacy of the individual, by whatever means employed, must be deemed a violation of the Fourth Amendment, and the use of facts derived from such intrusion as evidence in a criminal proceeding must be deemed a violation of the Fifth.

Applying the foregoing to this case, the defendants’ objections to the wiretap evidence must, in my opinion, be sustained. It doesn’t matter that the intrusion was made to aid law enforcement. Experience should teach us to be most on guard to protect liberty when the government’s purposes are beneficent. Free men are readily alert to repel the encroachments of evil-minded rulers. The greater danger lurks in the encroachments of well-meaning but zealous ones.

But even independently of the constitutional question, the lower court’s judgment should be reversed because wiretapping is a crime under the laws of the state of Washington. Therefore, to prove its case, the government was obliged to acknowledge that its agents committed crimes on its behalf. When these unlawful acts were committed, they were crimes only of the agents individually, because no federal official is authorized to commit a crime on the government’s behalf. But when the government acquired knowledge of the acts and then sought to avail itself of the fruits of those acts to accomplish its own ends, it assumed moral responsibility for the agents’ crimes. And if this Court should permit the government to punish the defendants by means of its agents’ crimes, it would be ratifying those crimes, and the government itself would become a lawbreaker.

Decency, security, and liberty alike demand that government officials be subjected to the same rules of conduct that we demand of the citizen. Our government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example. And crime is contagious, so if the government becomes a lawbreaker, it breeds contempt for the law. It invites every man to become a law unto himself, and it invites anarchy. In the application of the criminal laws, to declare that the end justifies the means—to declare, in other words, that the government may commit crimes in order to secure the conviction of a private criminal—would wreak a terrible havoc, and against that pernicious doctrine, this Court should resolutely set its face.

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