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 mmorley@orion.it.luc.edu 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 O...
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