By Paul Rosenzweig, The George Washington University Law School
Technological advances also bring changes in surveillance technology. One such example can be the introduction of concealed radio transmitters that record conversations. There are quite a few benefits in using electronic recordings in courts. However, questions have been raised on Fourth Amendment violations. So, what’s the verdict?
The United States v. White Case
In the early 1970s, for surveillance, federal agents could use a concealed radio transmitter worn by an informant to broadcast and record a private conversation with a co-conspirator. In the criminal case, United States v. White, the defendant was James White and the government informant was Harvey Jackson.
Jackson had concealed a radio transmitter on his body, and law enforcement authorities monitored the radio frequency the transmitter was tuned to. On eight different occasions, the hidden radio transmitted Jackson’s conversations with White to law enforcement authorities.
Based in large part on these conversations, White was criminally charged with drug trafficking. By the time of trial, however, the informant—Jackson—had disappeared. The trial court let the government proceed by having the agents who’d listened in on the conversation testify as to what they overheard.
On this basis, it was no surprise that the jury convicted White, but the accused drug trafficker then challenged his conviction.
Learn more about surveillance during the Cold War.
The Fourth Amendment
White’s main argument on appeal was that this new form of surveillance violated the Fourth Amendment to the U.S. Constitution. That amendment reads as follows:
The 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 or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
White’s Argument: Frivolous or Not?
On its face, White’s argument has a bit of a problem. What the amendment prohibits are searches and seizures—and not all searches, only unreasonable ones. White’s argument wasn’t frivolous, though.
For years, the Supreme Court had said the only way to measure reasonableness was by reference to law and legal restrictions. It was, for example, unreasonable to enter a house without a warrant because the law protected homes against external invasion through laws against things like criminal trespass and breaking-and-entering. By contrast, if no laws prohibited someone from walking in an open field, then police walking about the field were not being unreasonable—even if they were conducting a search.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
The Katz v. United States Case
This all changed in 1967.
Charles Katz was a bookie who used a public payphone to conduct his business. The FB recorded Katz by attaching an eavesdropping device to the outside of the booth.
Under the old-style law, because there was no physical intrusion into the phone booth, there would have been no legal barrier to what the FBI did, and hence no unreasonableness to the search. But the Supreme Court, nonetheless, concluded that the FBI had violated the Fourth Amendment.
Justice Harlan’s Two-part Test
Justice John Marshall Harlan II’s concurrence in the Katz case has come down to us as the best expression of this change. He said the violation occurred because an enclosed telephone booth is an area where, like a home and unlike a field, a person has a constitutionally protected reasonable expectation of privacy, that electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment.
From this, Justice Harlan derived a two-part test for when one has an expectation of privacy. It existed if one, the individual has exhibited an actual subjective expectation of privacy. And two, society is prepared to recognize that this expectation is objectively reasonable.
The court was not unanimous. In dissent, Justice Hugo Black said the Fourth Amendment was meant to only protect things from physical search and seizure, and that it had no relevance to personal privacy.
Court’s Ruling in the White Case
In the Katz opinion, you can see the nature of White’s argument a few years later. White’s attorneys argued, “He was manifesting a subjective expectation that the communication with Jackson was also private. If he’d wanted to have a non-private conversation,” White’s attorney’s argued, “he’d have done it outside on the street or in a movie theater.” Likewise, White said, “It was reasonable to conclude that personal conversations inside one’s home, or the home of a friend, were intended to be private.”
However, White lost. The Court said White had no right to assume that Jackson would keep their conversation confidential. He could talk with the police if he wanted to. In other words, White’s expectation of privacy did not rise to a reasonable expectation that his co-conspirators would not rat him out to the police.
Departing from the privacy question, the court opinion also relied on the fact that an electronic recording was actually better—in the sense of more accurate—evidence than the testimony of an informant.
Learn more about the types of surveillance.
Electronic Surveillance: The Verdict
An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent. It may also be that with the recording in existence it is less likely that the informant will change his mind, less chance that threat or injury will suppress unfavorable evidence, and less chance that cross-examination will confound the testimony.
Justice William O. Douglas dissented quite vigorously. He said that what the ancients knew as eavesdropping, we now call electronic surveillance; but to equate the two is to treat man’s first gunpowder at the same level as the nuclear bomb.
However, according to Justice Hugo Black, if the drafters of the Fourth Amendment had wanted to prohibit eavesdropping, they would have addressed it directly in the Fourth Amendment. And since they didn’t, by definition, one couldn’t cite a reasonable expectation of privacy as a protection against eavesdropping—or, by extension, against wiretapping.
Common Questions about Electronic Surveillance
James White’s main argument on appeal was that the new form of surveillance violated the Fourth Amendment to the U.S. Constitution.
Justice Harlan derived a two-part test for when one has an expectation of privacy. It existed if one, the individual has exhibited an actual subjective expectation of privacy. And two, society is prepared to recognize that this expectation is objectively reasonable.
With a surveillance recording in existence, it is less likely that the informant will change his mind, less chance that threat or injury will suppress unfavorable evidence, and less chance that cross-examination will confound the testimony.