get a warrant to tap phones. The government said: The Fourth Amendment simply does not apply.
The government’s argument was quite simple. The amendment presupposed that the government would be trespassing to search, and it was regulating the conditions under which officers could trespass. But because wiretapping is an invasion of privacy without a trespass, the government is able to tap the defendants’ phones without ever entering their property; the amendment therefore does not apply. It simply does not reach to protect invasions that are invasions without trespass.
The Supreme Court agreed. In an opinion written by Chief Justice (and former President) William Howard Taft, the Court followed the government.
The amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured only by the use of the sense of hearing and that only. 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[12].
This conclusion was received with surprise and shock. Already much of life had moved to the wires. People were beginning to understand what it meant to have intimate contact “online”; they counted on the telephone system to protect their intimate secrets. Indeed, telephone companies, having strongly fought the authority that the government claimed, pledged not to assist the government except as required by law[13]. This resistance notwithstanding, the Court concluded that the Constitution did not interfere with invasions of this sort. It would not have done so when the Constitution was written; it did not do so at the time when the case was decided.
But the dissent written by Justice Brandeis (there was also a dissent by Justices Holmes, Stone, and Butler) had a different view. As with Taft’s opinion, the focus was fidelity. But his fidelity was quite differently conceived.
Brandeis acknowledged that the Fourth Amendment, as originally written, applied only to trespass[14]. But it did so, he argued, because when it was written trespass was the technology for invading privacy. That was the framers’ presupposition, but that presupposition had now changed. Given this change, Brandeis argued, it was the Court’s responsibility to read the amendment in a way that preserved its meaning, changed circumstances notwithstanding. The aim must be to translate the original protections into a context in which the technology for invading privacy had changed[15]. This would be done, Brandeis argued, by applying the Fourth Amendment’s protection to invasions that were not themselves trespasses.
These two opinions mark two different modes of constitutional interpretation. Taft finds fidelity by simply repeating what the framers did; Brandeis finds fidelity by finding the current equivalent to what the framers did. If we followed Taft, Brandeis argued, we would defeat the protections for privacy that the framers originally set; if we followed Brandeis, Taft implied, we would be adding something to the Constitution that the framers had not written.
Partisans on both sides claimed that the opinion of the other would have “changed” the meaning of the Constitution. But whose opinion, the Court’s or Justice Brandeis’s, would really “change” the meaning of the Fourth Amendment?
To answer this question, we must first ask: Change relative to what? What is the baseline against which this change is a change? Certainly Brandeis would have agreed that in 1791 any finding by the Court that the amendment reached beyond trespass would have been improper. But when something presupposed by the original amendment has changed, is it clear that the Court’s proper response is to act as if nothing has changed at all?
Brandeis’s method accounted for the changed presupposition. He offered a reading that changed the scope of the amendment in order to maintain the amendment’s protection of privacy. Taft, on the other hand, offered a reading that maintained the scope of the amendment but changed its protection of privacy. Each reading kept something constant; each also changed something. The question is: Which reading preserved what fidelity demands should be preserved?
We might better see the point through a somewhat stylized re-creation. Imagine that we could quantify privacy; we could thus describe the change in the quantity of privacy that any change in technology might bring. (Robert Post has given an absolutely persuasive argument about why privacy is not quantifiable, but my purposes here are simply illustrative[16].) Imagine that in 1791 protecting against physical trespass protected 90 percent of personal privacy. The government could still stand on the street and listen through open windows, but the invasion presented by that threat was small, all things considered. For the most part, a regime that protected against trespass also protected privacy.
When telephones came along, however, this protection changed. A lot of private information was put out across the phone lines. Now, if tapping was not trespass, much less of private life was protected from government snooping. Rather than 90 percent being protected by the amendment, only 50 percent was protected.
Brandeis wanted to read the amendment so that it protected the 90 percent it originally protected — even though doing so required that it protect against more than simple trespass. He wanted to read it differently, we could say, so that it protected the same.
This form of argument is common in our constitutional history, and it is central to the best in our constitutional tradition[17]. It is an argument that responds to changed circumstances by proposing a reading that neutralizes those changes and preserves an original meaning. It is an argument invoked by justices on both the right and the left[18] , and it is a way to keep life in a constitutional provision — to make certain that changes in the world do not change the meaning of the Constitution’s text. It is an argument, we can say, that aims at translating the protections that the Fourth Amendment gave in 1791 into the same set of protections at any time later in our history. It acknowledges that to do this the Court may have to read the amendment differently, but it is not reading the amendment differently to improve the amendment or to add to its protections. It is reading the amendment differently to accommodate the changes in protection that have resulted from changes in technology. It is translation to preserve meaning.
If there is a justice who deserves cyberspace’s praise, if there is a Supreme Court opinion that should be the model for cyber activists in the future, if there is a first chapter in the fight to protect cyberspace, it is this justice, this opinion, and this case. Brandeis gave us a model for reading the Constitution to preserve its meaning, and its values, across time and context. It is a method that recognizes what has changed and accommodates that change to preserve something of what the framers originally gave us. It is a method that translates the Constitution’s meaning across fundamentally different contexts — whether they are as temporally distant as we are from the framers or as distant as cyberspace is from real space.
But it was Taft’s opinion that became law and his narrow view of the Fourth Amendment that prevailed. It took forty years for the Supreme Court to embrace Brandeis’s picture of the Fourth Amendment — 40 years before Olmstead was overruled. The case overruling it was Katz v. United States[19].
