Constitution Check: Is modern technology giving new life to the Fourth Amendment?

Lyle Denniston looks at the broader implications of this week’s district court’s ruling on the NSA’s phone surveillance policy’s constitutionality.


The “rapid and monumental shift towards a cell phone-centric culture means that the metadata from each person’s phone reflects a wealth of detail about her familial, political, professional, religious, and sexual associations….that could not have been gleaned from a data collection in 1979….Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic – a vibrant and constantly updating picture of the person’s life…I think it is likely that these trends have resulted in a greater expectation of privacy and a recognition that society views that expectation as reasonable.”

 – U.S. District Court Judge Richard J. Leon, in his ruling on December 16 suggesting that the National Security Agency’s global screening of telephone calling data will ultimately be struck down as a violation of the privacy guarantee of the Fourth Amendment. The decision was issued in Washington, D.C., in the case of Klayman v. Obama.

“Judge Leon’s ruling gives Fourth Amendment case law a long overdue update.  Americans have always had a reasonable expectation of privacy in their associations and beliefs.  Today, this kind of information is easily revealed through computer analysis of bulk telephone records.  This ruling brings the law in tune with technology.”

— Elizabeth Goitein, co-director of the liberty and national security program at the Brennen Center for Justice at New York University Law School, in a press release commenting on the judge’s decision.


It probably was an act of legal genius that the Founders who wrote the Fourth Amendment made its protection of personal privacy apply only to “unreasonable searches and seizures.”  The word “unreasonable” is obviously very open ended: what is reasonable to one viewer may be quite unreasonable to another.  But, while that word can make interpretation difficult for judges, lawyers and academics in specific situations, it still has a common sense ring to the ears of ordinary people.

Essentially, what the Fourth Amendment always protects is what might be called those aspects of an individual’s private life that he “intends to keep to himself,” as one Supreme Court Justice once put it.  But when the late Justice John Marshall Harlan wrote that in 1967 (the first time any Supreme Court opinion spoke of a “reasonable expectation of privacy”) he added to it a second part: in order to get the Fourth Amendment’s protection, that notion of privacy must be what the rest of society would accept as “reasonable.”

This gives the Fourth Amendment a personal cast. But it has to exist within a wider social context.  As either changes, over time, the Fourth Amendment might be understood to mean something different.

Of course, there are judges and academics who insist that the Fourth Amendment means only what it meant in principle when the Bill of Rights was added to the Constitution in 1791, and that it does not adapt to the times.  One of the most direct statements of this view, in fact, came from the late Justice Hugo Black.  In the same 1967 case in which Justice Harlan had stated the expectation principle, Black wrote: ”I do not believe that it is the proper role of this Court to rewrite the Amendment in order ‘to bring it into harmony with the times.’ “

Thus, about the Fourth Amendment, as about almost all of the Constitution, the debate goes on about what it means from time to time.  This debate is no more intense than when the issue arises over the meaning of the Fourth Amendment when someone’s privacy is threatened by a new form of technology with the capacity to penetrate into private realms.

It actually was a then-new form of technology that both Justices Harlan and Black were dealing with in that 1967 case: Katz v. United States.  The FBI had developed the capacity to install, surreptitiously, a listening device on a public telephone booth, and a suspect who used that booth to place illegal bets – Charles Katz — argued that he had closed the door of the booth behind him, and thus expected to shut out the world when he telephoned.

The Supreme Court agreed (with only Justice Black dissenting), and declared that the Fourth Amendment “protects people, not places.”  From that time until now, the court has relied upon Justice Harlan’s formula about privacy expectations and society’s acceptance (or failure to accept) those expectations as it continues to interpret the Fourth Amendment.

In a 1979 case – the one that Judge Leon, in the quotation above, was discussing — the court ruled that society did not accept as a reasonable form of privacy the records that a telephone company keeps of calls that its customers make  The customers, it decided, voluntarily gave up to the telephone company the information about whom they called.  So, the court said, the police could use that data to track down suspected criminal Michael Lee Smith..

That very decision, in the case of Smith v. Maryland, is the one precedent upon which the Obama Administration depends most heavily when it claims that the global sweeping up of telephone “metadata” for use in tracking potential terrorists does not violate anyone’s privacy under the Fourth Amendment.  Indeed, the secret federal court that has repeatedly authorized that data-gathering technology – the Foreign Intelligence Surveillance Court – has also ruled that the Smith decision validates the program.

But Judge Leon, in his ruling this week saying that, when the case of Klayman v. Obama actually goes to trial, it is very likely that the data-gathering program will be struck down under the Fourth Amendment.  His opinion is filled with contrasting assessments of what telephone privacy expectations were in 1979 and what they now are, with the arrival of “a phone-centric culture.”

Refusing to apply the Smith precedent in this technologically altered environment, the judge said: “I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.”

Now, America awaits the probably inevitable appeal of Judge Leon’s ruling, to see whether Larry Klayman’s expectation of privacy when he uses his cellphone enjoys the support of the rest of society, or whether he, like Michael Lee Smith, will find no shield in the Fourth Amendment.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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