Charles Katz was suspected of transmitting gambling information to clients in other states by telephone. Federal agents recorded his half of several of his telephone calls by attaching an eavesdropping device to the outside of a public phone booth where he made his calls. Katz was convicted on the basis of this evidence, and the court of appeals upheld the conviction on the basis of Olmstead.
Harvard Law School Professor Laurence Tribe was involved in the case at the beginning of his legal career:
As a law clerk to Supreme Court Justice Potter Stewart, I found myself working on a case involving the government’s electronic surveillance of a suspected criminal in the form of a tiny device attached to the outside of a public telephone booth. Because the invasion of the suspect’s privacy was accomplished without physical trespass into a “constitutionally protected area”, the Federal Government argued, relying upon Olmstead, that there had been no “search” or “seizure” and therefore the Fourth Amendment “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ” simply did not apply.
At first, there were only four votes to overrule Olmstead and to hold the Fourth Amendment applicable to wiretapping and electronic eavesdropping. I’m proud to say that, as a 26-year-old kid, I had at least a little bit to do with changing that number from four to seven — and with the argument, formally adopted by a seven-Justice majority in December 1967, that the Fourth Amendment “protects people, not places” 389 US at 351. In that decision, Katz v. United States, the Supreme Court finally repudiated Olmstead and the many decisions that had relied upon it, reasoning that, given the role of electronic telecommunications in modern life, the First Amendment purposes of protecting free speech as well as the Fourth Amendment purposes of protecting privacy require treating as a “search” any invasion of a person’s confidential telephone communications, with or without physical trespass[20].
The Court in Katz followed Brandeis rather than Taft. It sought a reading of the Fourth Amendment that made sense of the amendment in a changed context. In the framers’ context of 1791, protecting against trespass to property was an effective way to protect against trespass to privacy, but in the Katz context of the 1960s it was not. In the 1960s much of intimate life was conducted in places where property rules did not reach (in the “ether”, for example, of the AT&T telephone network). And so a regime that made privacy hang on property did not protect privacy to the same degree that the framers had intended. Justice Stewart in Katz sought to remedy that by linking the Fourth Amendment to a more direct protection of privacy.
The link was the idea of “a reasonable expectation of privacy.” The core value, Stewart wrote, was the protection of “people, not places.[21]” Hence, the core technique should be to protect people where they have a reasonable expectation of privacy. Where this is the case, the government cannot invade that space without satisfying the requirements of the Fourth Amendment.
There is much to admire in Stewart’s opinion, at least to the extent that he is willing to fashion tools for preserving the Constitution’s meaning in changed circumstances — or again, to the extent that he attempts to translate the protections of the Fourth Amendment into a modern context. There is also much to question[22]. But we can put those questions aside for the moment and focus on one feature of the problem that is fairly uncontentious.
While lines will be hard to draw, it is at least fairly clear that the framers made a conscious choice to protect privacy. This was not an issue off the table of their original debate or a question they did not notice. And this is not the “right to privacy” that conservatives complain about in the context of the right to abortion. This is the right to be free from state intrusion into the “sanctity” of a private home. State-enforced threats to individual privacy were at the center of the movement that led to the republic. Brandeis and Stewart simply aimed to effect that choice in contexts where the earlier structure had grown ineffectual.
Translations like these are fairly straightforward. The original values chosen are fairly clear; the way in which contexts undermine the original application is easily grasped; and the readings that would restore the original values are fairly obvious. Of course, such cases often require a certain interpretive courage — a willingness to preserve interpretive fidelity by changing an interpretive practice. But at least the direction is clear, even if the means are a bit unseemly[23].
These are the easy cases. They are even easier when we are not trying to carry values from some distant past into the future but instead are simply carrying values from one context into another. When we know what values we want to preserve, we need only be creative about how to preserve them.
Cyberspace will present many such easy cases. When courts confront them, they should follow the example of Brandeis: They should translate, and they should push the Supreme Court to do likewise. Where circumstances have changed to nullify the protections of some original right, the Court should adopt a reading of the Constitution that restores that right.
But some cases will not be so easy. Sometimes translation will not be an option, and sometimes the values that translation would track are values we no longer want to preserve. Sometimes we cannot tell which values translation would select. This was the problem in Chapter 2 with the worm, which made the point about latent ambiguities. Changing contexts sometimes reveals an ambiguity latent in the original context. We must then choose between two different values, either of which could be said to be consistent with the original value. Since either way could be said to be right, we cannot say that the original context (whether now or two hundred years ago) decided the case.
Professor Tribe describes an example in a founding article in the law of cyberspace, “The Constitution in Cyberspace.[24]” Tribe sketches a method of reading the Constitution in cyberspace that aims to make the Constitution “technologically neutral.” The objective is to adopt readings (or perhaps even an amendment) that make it plain that changes in technology are not to change the Constitution’s meaning. We must always adopt readings of the Constitution that preserve its original values. When dealing with cyberspace, judges are to be translators: Different technologies are the different languages, and the aim is to find a reading of the Constitution that preserves its meaning from one world’s technology to another[25].
This is fidelity as translation. This kind of translation speaks as if it is just carrying over something that has already been said. It hides the creativity in its act; it feigns a certain polite or respectful deference. This way of reading the Constitution insists that the important political decisions have already been made and all that is required is a kind of technical adjustment. It aims to keep the piano in tune as it is moved from one concert hall to another.
But Tribe then offers an example that may make this method seem empty. The question is about the meaning of the confrontation clause of the Sixth Amendment — the defendant’s right in a criminal trial “to be confronted with the witnesses against him.” How, Tribe asks, should we read this clause today?
At the time of the founding, he argues, the technology of confrontation was simple — confrontation was two-way. If a witness confronted the accused, the accused, of necessity, confronted the witness. This was a necessity given to us by the technology of the time. But today it is possible for confrontation to be one-way — the witness confronts the accused, but the accused need not confront the witness. The question then is whether the
