Transcripts For CSPAN3 Landmark Cases Supreme Court Landmark Case Katz V. United States 20240712

National conversation through cspans Daily Program or through our social media feeds. Cspan created by americas Cable Television companies as a Public Service and brought to you today by your television provider. All persons having business before the Honorable Supreme Court of the United States are admonished to draw near and give their attention. Landmark cases, cspans special history series produced in partnership with the National Constitution center. Exploring the human stories and constitutional dramas behind 12 historic Supreme Court decisions. Mr. Chief justice and may it please the court. Quite often in many of our most famous decisions are ones that the court took that were quite unpopular. Lets go through a few cases that illustrate very dramatically and visually what it means to live in a society of different people who help stick together because they believe in a rule of law. Good evening and welcome to cspan landmark cases. Tonights case is katz versus the United States, it is a 1967 case. The person who gave his name to the case is somewhat of an unlikely hero. He was a bookmaker specializing in College Basketball games and he took his wiretapping case to the Supreme Court and in a 71 decision expanded our privacy rights under the constitution. Were going to learn more about his story and the significance of this case over the next 90 minutes. But well begin by listening to judge Justice Samuel alito in his confirmation hearings where he talked about the importance of the katz case. Lets listen. Sometimes changes in the situation in the real world can call for the overruling of the precedent. An example of that is provided by katz versus United States which i was talking about this morning in relation to wiretapping. The old rule under olmstead was that in order for there to be a search, you had to look to property law, you are had to see whether there was invasion of a property interest. And then with the development of Electronic Communications and electronic surveillance, wiretapping or other forms of electronic surveillance, which is what was involved in katz, the Supreme Court said this isnt a sensible way to apply the 4th amendment principle under the conditions of the modern world. And they said famously that the Fourth Amendment protects people not places. So they shifted and found the doctrine underpinnings of the Old Homestead rule to be undermined by developments in the society and shifted the focus from property law to whether somebody had an expectation of privacy. So our two guests at the table are going to unpack that story for us tonight. Let me introduce them to you. Jeffrey roczen, president and ceo of the National Constitution center. The Constitution Center are our partners in this landmark case series this time and the first round in 2015, he is also the author of numerous books about the law and the court. His latest is a biography of William Howard taft that has just been released. So great to be here. Jamil javer is director of the National Security law and policy program at George Mason University Antonin Scalia law center and clerked for neil gorsuch twice and former adviser to Senate Foreign relations and House Intelligence Committee and president george w. Bush. Thanks for being here tonight. Thanks for having me. So as we begin, jeffrey rosen, we worked on selecting this case and why is this case interesting to you. It is the most important privacy case of the 20th century as Justice Alito said. This is the case that repudiated the idea that you needed to have a physical trespass to trigger the Fourth Amendment. This is the general warrants and writs of assistance that sparked the American Revolution but in the age of Electronic Technology it made no sense to say that you had to trespass on Property Private in order to have an unreasonable search of our persons or electronic effects and by declaring that the law protects people not places, the court set the stage for moving the Fourth Amendment into the electronic age and that is precisely the debate that were having today. You have spent much of your recent career focusing on National Security law. Where does katz fit in that pantheon . How important is it . It is the central case as jeffrey just laid out about how we think about the Fourth Amendment and surveillance. And one of the key issues in National Security law today is surveillance and how the government conducts surveillance. It is a topic of much debate, after Edward Snowdens revolution, it was the topic of new revelations in congress. There continues to be debates today at the court this term, two major cases involving well, one involving electronic surveillance and two involving the Fourth Amendment so it continues to be a hotlydebated topic at the court and in our political system. We need to spend some time on the Fourth Amendment itself so im going to put the language on the screen. The right of people to be secure in their persons, houses, papers and effects against run reasonable searched and seizures unreasonable searches and seizures shall not be violated and no warrant shall be issued but upon probable cause and supporting the oath or affirmation. So a bit of a history lesson. And what gave rise to this amendment chief Justice Roberts quoted the speech of jame otis denouncing the writ of assistance, and john adams said at that moment the child revolution was born. So that is how important this historical story is and the writ of assistance allowed the kings agents to break into peoples homes, searching for evidence of the fact that they hadnt paid the hated tea taxes or published against the king. Warrants didnt specify the places but just said go find the authors of these pamphlets or people that didnt find their taxes so they were instruments of tyranny to allow them to rummage through places indiscriminate indiscriminately. Common law courts established the principles in state constitutions, the massachusetts constitution of 1780 has a longer version of the Fourth Amendment, and when James Madison drafted the Fourth Amendment he cut and pasted from those state constitutions to make clear that you couldnt have searches that dont particularly specify places to be searched and a person or things to be seized. You teach the Fourth Amendment. What do you tell the students about what its importance is . I think it is at the core of our civil liberties. It protects, as jeffrey said, against the general warrants and the tyranny of the king. Remember, our framers came from a place of deep suspicion of overleaning federal or governmental power. So when they built our system of governance, they built a government of limited powers and laid out the rights people were entitled to. One of the core rights was the right to be protected against these unreasonable searches and seizures. Well get to your call and tweets in about 10, 15 minutes. If youre watching eastern or central time zone, 2027488900, and then in the Mountain Time frame and send us a tweet. Its cspan. Org. And there is a discussion already underway on our facebook page. Can you be part of that now or after our program is over if youd like. So as we get into the particulars of this case, there are a couple of personalities that people will hear about as we proceed. One is charles katz himself. What can you tell us about charles katz . A constant gambler and a leading basketball handicapper in the United States. He had residences in new york and los angeles at the time of his arrest. He was living in a hotel on the 8200 block of sunset boulevard, famous sunset strip. Famous for rock bands and all sorts of things and he used to stroll down the street to a set of three phone booths in order to conduct his interstate gambling mission. The fbi got wind of this and that is what led to this case, was the wiretapping or the surveillance of the phone booths. Someone sent me a tweet last week that said we have to explain what phone booths were. Thats true. We dont have many around anymore. Harvey snyder, who is he . Hes now a retired Los Angeles Superior Court judge and a law clerk to burton marks and burton marks, we have to note, made a great filing in this case. When he filed the brief, he said thanks to a typo a man has as much a right to bet alone in a public phone booth as in his own home. So snyder took over the case from marks and it was snyder who came up with the brilliant theory of the core of the case that rather than focusing on what is a constitutionally protected place, the question should be barring from tort law, do people have reasonable expectations of privacy. He remembered his own Law School Class where he studied the views of the reasonable man and made that argument before the Supreme Court and it ended up defining the case. That must make both of you, who teach law, feel good, about the importance of individual classes and the impact they can have on your students overall. This is one class that sparked a brainstorm for this lawyer approaches the case. Absolutely. And this is the most exciting sort of case to teach in criminal procedure because it does inspire people to transform the amendment and to translate it in light of new technologies. And to translate in light of new technology. That is what Harvey Snyder did and Harvey Brandeis and thats what cspan viewers should try to do tonight. Well hear more about the court overall. Tell us about him. Justice Supreme Court appointed by president eisenhower served in world ii as a member of the navy reserves. Often times found himself in dissent during the warren court era. But in this case, in the majority, writing perhaps a slightly narrower opinion than what katz is known for. Katz is really known for justice har lens concurrence. So they have the majority and the votes but ultimately the really influential was the concurrence. Youve referred to him and liz brand ice is important in this case. Why. He wrote the most important privacy dissent of the 20th krnts and i want viewers to go and read it and you could get it online right now. But keep watching the show so read it after the show is over. Brandeis and taft, write about him in the book, but chief justice taft said you need a physical trespass in order to trigger the Fourth Amendment. That was a case involving wiretapping and a bootlegger of his time and there the wiretap was under a sidewalk. Brandeis looks forward to cyber space and technologies, ways may be developed where its possible without intruding in desk drawers to extract papers. The right to question was the right to be let alone and the amendment had to be translated for the same privacy with the wires as they took for granted in the 19th centuries. Were in the era of a time when oral arguments are being recorded by the court to. Glif you the particulars of this case, we mentionederlyier the lawyer was Harvey Snyder. Well listen to him in the oral argument as he tees up the particular. The story that brings us to the Supreme Court. Lets listen. Mr. Chief justice and may it please the court. The facts of this case that is now before the court are really quite simple. The law applicable is Something Else again. But the facts are as followed. Mr. Katz was surveilled by agents of the federal bureau of investigation for a period of approximately six days. During that period of time, the surveillance was conducted by the use of a microphone being taped on top of a public telephone booth, there was actually three booths. One had been placed out of order by the Telephone Company and with the Telephone Company cooperation and the other two booths were used by mr. Katz, sometimes used one booth, sometimes another. The tape was placed on top of the booth or the microphone was placed on top by a tape. The fbi agents had undoubtedly read their homework and had not physically penetrated into the area of the telephone booth. Subsequently after about six days of surveillance, mr. Katz was arrested. We have a period picture of the telephone booths on sunset boulevard that were really a character in this case. So could you explain the authority under which the fbi agents were operating at the time. Sure. So the fbi agents, their understanding was that as jeff laid out that if as long as you didnt invade the physical space and constitutionally protected space, a home, or the like, there wasnt a problem. So they didnt bother to go get a warrant. They knew they had been watching mr. Katz for a while. They knew it was his normal order of business to leave his hotel, walk down the street, take a stroll and enter the phone booth, make his bets in a phone booth or take the bets and i should say and then wander off. So what they did was put this microphone on top of the booth without invading them, and they set the microphones up so they could record what was happening inside the phone booth. As mr. Katz would walk down and an agent would follow him and send the hi sign, because they didnt record anybody else, and mr. Katz would do his thing. So the authority was they werent violating the Supreme Court decisions, penetrating a constitutionally proven place, they dont need a warrant for this and they taped it, and that is how we ended up in court. What law was he breaking . Was betting illegal . What attracted the fbis interest in the first place . There are statutes involving Money Laundering and also ones betting and im trying to get the exact one here. Here it is. Thanks to the great National Constitution center prep team. It is 18 usc 1804, wagering information by telephone and it for bids betting or wagering knowingly using a wire communication for interstate or foreign commerce and bets or wagers. So he was probably violating the law but the question is whether the search as jamil explained it was constitutional and if wasnt, according to existing case law, the evidence had to be excluded. So everything turned on the constitutionality of the search. So what was illegal about it was that it was interstate. Right. If he had been making a local phone call, it would not have been if the gambling was local it wouldnt have used the interstate wires and that is how we ended up in federal court in the Southern District of california now the central district. That is how it wound from that court up to the ninth circuit and then to the u. S. Supreme court. You know the famous line in the case that he said on the phone that was the hallmark of his betting. So you want to tell the audience what it was. He would take duquesne minus 7 for a nickel and the question was, was this a bet. And anybody who has ever gone to vegas and placed a bet on sports knows that the Basketball Team was favored and he was betting 500. Do we know if duquesne won . I dont know. Lets find out. Viewers, figure it out. But he was taking tons of bets on this line and calling all of his acquaintances and the people that gambled with him and the people he places his bets with. Because he was a bookmaker. So he was taking bets and placing them to engage in the process. So he was literally the biggest basketball handicapper of his time. And go ahead. It is striking. Olmstead was the biggest bootlegger of his time so these are not small potato guys and in both cases the feds didnt take the time to get warrants because these guys were under serious enough suspicion they might have done so but they didnt and they gave rise to landmark cases. A time line of the events leading up to the case ,and i want to walk through it so you could see how the events proceeds. The fbi started bugging the phone booths back in february of 1965 on sunset boulevard. And just a short time later, february 25th, 1965, mr. Katz was arrested on eight counts of illegally transmitting bets. On may 30th of 1965, he was convicted and fined 300. That seems small for eight counts. On november 17th, 1966, ninth Circuit Court of appeals upholds the conviction. And march 13th, 1967, the Supreme Court decides it is going to hear the case. So eight counts is a lot. If you had a client facing eight federal counts, what would you say about how serious this was for him . Well, look, they had him dead to rights. They had him on the recorder getting on the phone making the phone calls. So his lawyers didnt have a great he didnt do it. And they have the famous duquesne minus 7 line and there wasnt a good argument that he wasnt, in fact, engaging in gambling, so they had to come up with a theory of why the evidence could be introduced. The theory was that people have an expectation of privacy. When he went into the phone booth and close the door he was either creating a space for himself or had the expectation that the government couldnt surveil without a warrant and having done so, that they couldnt use that evidence against him without a warrant. So why would the ninth circuit have upheld his conviction . What was their legal reasoning . It was clearly legal. The olmstead case said you need physical trespass to trigger the Fourth Amendment and they put the wiretaps under a public sidewalk leading up to olmsteads office and who are t it here it was a public phone booth in which katz had no property interest. There was a separate Juris Prudence about constitutionally protected spaces but those were defined by Property Rights like the home. So they with were applying law and the willingness to embrace that leap by the Supreme Court in order to strike down the search. Will you explain the process of getting from the ninth circuit to the Supreme Court . Yes. So once they get the decision from the ninth circuit, they had a chance to apply for a writ of certiori by the Supreme Court, modern era Supreme Court takes a very small percentage of all the cases. It takes cases of National Importance or a split between the circuits on disagreement among the lower courts. In this case, the law was fairly clear, right, as jeff laid out, the law coming from olmstead was clear. You had to have a physical penetration. The law from goldman, another important case was clear that you could use a device placed on the outside of a in that case it was a detect a phone, a large ear that you could place up against the wall and hear through the wall, and they have done this on top of the phone booth. So the law was clear. And as far as i recall there was not a circuit split on this question. And so this is a case the Supreme Court is taking in part because there was this deep concern about the modern era and the evolution of communications and the concern that it is law at the time did not address the issues effectively. What about the cooperation of the phone company . Was that a given at that time . Well, this was an era, in the 1960s, where at least for the longest period the phone company was cooperative. In this case without a warrant said, could you please put one booth out of the order so we could place the recorder on top of each phone and with a recorder. If they had three booths, it would have been harder to set up so the Telephone Company was cooperative enough to do that. Now they didnt go to the phone company and ask to put a wiretap on it. And i guess i am not sure why, maybe they were concerned about although, given olmstead, i dont think there would have been a problem. The wiretap just being worked out. I dont think it would have been a problem. The burger case in 68 gave instructions to congress which responded so the the federal may have been uncertain and that is why the phone company went along. But they were not the apple of their day. They didnt refuse to cooperate. That is right. And do we know anything about burton Marks Law Firm and what kind of cases they took on. Did he hire highpriced representation . Well marks was a famous defender of the accused. And so he was known for being a fierce advocate, but the interesting part is the role that his law partner plays in this case in developing this theory and the arguments that he made and actually his deafness on his feet before the court really brought the court around. I mean, the case was ultimately 71, right. Justice marshall did not participate. But only one dissenter. So he was able to convince Seven Members of the court to go along with a complete change and overruling of precedent. And there was a split behind the scenes, and it was sort of either 54 or 44 and Potter Stewart changed his mind in light of the argument and that brought along other justices leaving only justice black in dissent. Unusual to see that dramatic split, because of the creative arguments for Harvey Schneider. Well, next were going to meet him. How about that and by videotape. Weve mentioned there is really very little known about charles katz and one of the ideas behind the series is to tell the peoples stories and we know about the particulars of this case but really not a whole lot about him. And next youre going to hear from Harvey Schneider talking a bit about charles katz and then our producer for this series nathan hurst on his efforts to find out more. One thing we know about charles katz, he paid his legal bills in cash. But well learn more in this next clip. By the time we were heading back to washington, charlie katz was he could no longer afford to pay fees. But who cares when you get a case before the Supreme Court. You dont worry about whether your client can pay fees. What is so interesting is this is a man who had eight felony counts against him at one point, clearly had a profile with fbi and other Law Enforcement, yet we cant find a photograph of the man. He was never published in any newspaper or news wire or nothing like that. There is no video of him. Even while his case was being adjudicated, he never showed up to court other than to be arraigned. In todays age, it is pretty hard for people to disappear that completely. Does it surprise you that there is so little, not even a booking photograph . It is surprising. You just think about the modern era. And a lot of this case really relates to the modern era and are smartphone protected and the photographs in your phone protected to government surveillance without a warrant or even with a warrant under the circumstances and how i might get it. Its amazing the progenitor of this discussion, we cant find a photo of the guy. Were going to move to the Supreme Court learning about the makeup of the court and the arguments in a few minutes but it is time for your phone calls. Lets begin with roger in decatur, georgia. Good evening, welcome. Caller good evening. So if you want to see a phone booth, you could go to Scott Pruitts office. So like katz said that the Fourth Amendment protects people not places but the standard is sort of squishy because you have to decide what kind of interests are protected by privacy. And so Justice Scalia in the heat sensor case said, oh, but it also protects property. Okay. So you cant go and look through the house for the heat sensor. But outside of that, there is really maybe the case about needing a warrant for wiretaps, there is not much that said what is protected by privacy. On the other hand, we have these big holes like the pen register cases that say that metadata could be captured, okay. And also like anything that touches a foreign border could be captured or its been allowed to be captured. So it seems like the Supreme Court is not really keeping up with all of the advances, you know. We have these devices that are to cell towers to pick up cell conversations and police men are scanning conversations when they go through neighborhoods and stuff like, and there is no protection against that. Is there any chance i mean this Supreme Court is taking little tiny steps in technology areas. Any chance it will get a solution to those kinds of problems from this court . Great question. On the one hand this court is inspiring in coming up with unanimous decisions repeatedly saying that you do need warrants before you could track someone 24 7 with a gps device. Or search someones cell phone on arrest. This year they will decide whether you could have five month surveillance of cell phones. But the word you used was but squishy and youre right. The standard in katz, which well talk more about later, said you have to have an expectation of privacy that society is expected to project as reasonable is squishy because the expectation of privacy is reflecting the privacy they subjectively experience. As surveillance becomes more ubiquitous, our expectations go down along with our constitutional protections. Olt one hands it was great advance. On the other hand it was squishy and the court is dealing with that squishiness, as you say, today. At this point in just in recent terms, the court cited a case about whether cell phones could be surveilled or searched without a warrant as part of a search incident to an arrest and ultimately decided no. And now this term, as jeff pointed out, the court has a case before it about gps surveillance and longterm well cell phone locational data surveillance. So the court is having to deal with these questions. And you know, theres a famous concurrence by Justice Sotomayor in the jones case where she laid out there are huge issues coming up with modern technology and the court is going to have to grapple with them, and i think in this very term well see them grapple with these cases. Caller did the movement have any political legs at all . That is an excellent question. I think the exclusionary rule case map was very controversial. It was a series of criminal procedure cases in the 1960s, including the escobido case and i remember that because when you teach escobedo because you remember Strom Thurman in the Supreme Court hearings of earl fortis to replace chief Justice Warren saying escobido, sey want that to ring in your ear, because he was supposedly freed. So the warren court was defined by the cases seen as being soft on crime, i guess you could view katz as one of the cases and some of them gave rise to the impeach earl warren billboards which were so famous back then. Fred is in laguna niguel, california. Hello, fred. Caller thank you for cspan giving me the opportunity to talk. I was listening to the case of the phone booth in sunset boulevard. And i have a general observation on all of these cases regarding Fourth Amendment, and that is my amazement of how and why you should take the lower courts to recognize the right of the people to be safe in their persons and their papers and everything else. And it doesnt take a genius to recognize that you dont even have to do a lot of research and going from one court to another court to find out that the new technology which provides information kept on cell phones and other kind of Electronic Systems also goes under the Fourth Amendment. Its just while im enjoying the professors discussions, but i think we should have much more much more enthusiasm about going back to the right of the people. Why should it take the court to figure out if something applies or not. Because isnt it in the constitution that even if you cant decide whether this amendment applies or not, the rest of the right of the people stay with the people. Why the courts take so long . I like to hear your enthusiasm and frustration that i have. Thank you very much. Jamil. Well as the caller points out, there is an amendment in the bill of rights that says that all of the rights are not given to the federal government are reserves to the people and to the states and the people. And largely that hasnt been hasnt been interpreted very much and hasnt been utilized. In part because there is very little detail behind it and the court had a hard type grappling with what that amendment means. That being said, the Fourth Amendment doctrine has changed over time. As jeff pointed out, this case was a landmark case because it changed the doctrine that would have been in place for 40 years. And since then katz has really been the controlling precedent that dictated how we think about surveillance and has for the last, you know, 40 some off years. But there is an interesting shift. Just recently the court has made a move back towards a propertybased view of at least some surveillance cases an revitalized homestead and olmstead and goldman, even though the underlying principle going back to the text of the amendment and so the question now becomes what do you do with the cases as we go forward in the modern era because the reality is it could have very real applications and you saw arguments in carpenter, gorsuch talking about the way Property Rights might apply in the modern era to Fourth Amendment. That is such an interesting observation, and it was so fascinating as you suggest to see at the carpenter oral arguments two different but supporting positions. On the one hand Justice Gorsuch as you said resurrecting this property based approach and cell saying we might have propertybased interest in cell phone records because of the contracts with the cell phone companies. But on the other hand, Justice Sotomayor said that it makes no sense to say that data surrendered to a third party is one in which we have no expectation of privacy was focused more on our privacy expectations and the fact that 24 7 surveillance could reveal so much about us that we should have the right for thoughts and emotions, channeling justice brandeis. So interesting to see justices from different perspectives coming to the same result by bringing together both of which come to a head there katz which is why it is so exciting. Michael is up next in jameston, north carolina. Hey, michael. Caller hello. Youre on. Welcome. Caller my question is about how the katz case was used as a precedent in the 1979 smith v. Maryland case, which did so much to expand the electronic surveillance. Thank you. It is great that you mentioned smith v. Maryland. That was the core of what is called the Third Party Doctrine. Which sounds wonky but is the key of what Justice Sotomayor was talking about in her concurrence. The Third Party Doctrine says when i surrender data to a third party, like a phone company, that i lose expectation of privacy and the phone company is allowed or required to turn it over to the government. Katz was the core of that case, because katz held we only have data on which we have reasonable expectation of privacy and smith lost expectation of privacy in it. Even at the time smith was controversial and it involved bank records, rather involved telephone records, pen registers, but congress overturned a series of third party cases saying it is not true that when i turn over financial records to a bank i have no expectation of privacy in them. And Justice Sotomayor notes when all of our data stored on third party servers, the cloud, smith v. Maryland is taken seriously, which is why we have no privacy today. That is why it is so important and the katz underpinning is so crucial and interesting to see what the court does in the carpenter case. And jeff is right. And it led to the stuff weve talked about post after the snowden disclosure and the discussion of the governments metadata program. The reason the government was able to obtain large amounts of cell phone and email records was because the court and smith said there is no reasonable expectation of privacy in this routing information, this dialing information, signaling information given to a third party, in that case the phone company, in the case of phone records the same thing, email records, your Internet Service provider. As a result, weve had huge programs of surveillance that the government has done without warrants under some authority, right, in that case the 215 authority, and the patriot act. And then in other cases the trap and trace statute. But ultimately led to congress changing the law in the usa freedom act and led the continued debates about whether this Third Party Doctrine is viable and Justice Sotomayor concurrence laid out the case why it is not viable. Ultimately in that case, the court came together to decide the case in favor of mr. Jones who was a suspected drug dealer here in the washington, d. C. Area. But ultimately this is the continuing debate that is taking place again here in carpenter, and well see some resolution of it from the court by the end of the term. So lets return to 1967 and the court. That gave us this seminal decision. By virtue of our callers question we know about earl warren but lets take a look at makeup of the court. The eisenhower appointees still serving on the court at that point, earl warren, John Marshall harlan ii, William Brennan and Potter Stewart. Roosevelt appointees, hugo black and william o. Douglas. The kennedy appointee byron white, and johnson appointee abe fortis and thurgood marshall. As mentioned, marshall did not participate in this decision. Explain why, please. Solicitor general and was appointed around the time. So maybe you could talk generally about the solicitor general and the conflict of interest they may have. The solicitor is the practitioner for the government before the Supreme Court. He or she is the lead appellate lawyer for the government typically. It is their office that argues the cases before the courts, occasionally they argue before the courts of appeals in cases of high importance to the government. And in this case, his role previously to serving as u. S. General, he could have been that the case was up for a consideration during the petition for certiori and they weighed in on behalf of the United States, arguing that the case should not be granted. Wanting to have upheld the decision of the ninth circuit upholding the conviction of mr. Katz. They were unsuccessful and it came to the court and my guess is that is why he didnt participate. You spoke about the warren court legacy in the areas of criminal rights. Could you talk about the makeup of the court and some of the alliances that had been forming over the years that the warren court was around. The core of the warren court was the alliance between earl warren and William Brennan, who was warrens deputy and helped coral majorities. Other liberal was thurgood marshall. And Potter Stewart was a centrist who likes to write narrowly and could go either way. Justice John Marshall harlan who wrote the concurring opinion in katz was on the conservative wing and he had dissented from several of the criminal procedure cases as well as the Voting Rights cases. And then there was hugo black who, this lone dissenter in katz and black was a liberal texturalist appointed by roosevelt. He went to sleep every night reading the constitution and burned a hole in his pillow because he would stay up kmung with the original text. He meant no law meant no law in the first amendment. Though he was a libertarian, he couldnt bring himself to make up rights that werent in the constitution. He thought conversations wpt covered and he dissented. Do you have more to say about that . I think he thought so because, of course, the text of the amendment doesnt mention it. It talks about persons and houses and papers and effects. And so black was struggling with this. I might even want to consider but it is just not there. And he was focused on an absolutist and very much focused on the text of the constitution, couldnt bring himself to find an expansive definition in there and so i think that was part of what was at the heart of his dissent in this case. In granting the writ of certiori and deciding to hear the case, weve learned in the past that the justices may have been looking for an excuse to revisit a certain part of law. Was that the case here . Why did they take on the katz case in the first place . There is struggling with the question of wiretapping, trying to translate the amendment in light of the new technologies. And i think there is an understanding that focusing on constitutionally protected places was not adequate at a time when you could invade the places virtually rather than actually. But they hadnt come up with a solution, and that is why the questions to the lawyers said was it a constitutionally protected place and Justice Stewart said this is the we asked, that is the wrong question. The real question is the Fourth Amendment protects people not places. So you could see him acknowledging that the courts mind had been changed by the argument itself. So mr. Katzs lawyer Harvey Snyder was up against a great deal of legal precedent before the justices to make his argument. He was also an attorney without very much experience. He was only a few years out of law school. In our next clip were going to hear from him today talking about his epiphany as he was thinking about the arguments he was going to make in this case, which was different from the arguments they set out in their writ of certiorari in the first place. Well learn more about that from him and listen to a bit of the oral argument. Im sitting in my office one day, and im ruminating about katz, probably ruminated about little else during that period of time and i thought back to my time in law school and in particular my course in torts and we were taught with regard to the tort of negligence, that negligence was doing something a reasonable man would not do or failing to do what a reasonable man would do. We call them tarm, the average reasonable man. And it occurred to me, we had it wrong and the court had it wrong. Area. The inquiry ought to be whether the person whose conversation was intercepted had a reasonable expectation of privacy. And when we got to the court in october i violated a very significant rule of the court because youre not supposed to raise in oral argument anything that you did not brief. I never briefed reasonable expectation of privacy because i hadnt thought of it. They were really kind to me. They were listening and not interruptive because i was proposing to them a test and a solution to a problem that had vexed them for decades. The constitutional protection would not apply i think is the way to phrase it. I indicated this morning that we think that the right to privacy, which is a 4th amendment concern as i understand it, follows the individual. We would base our contention upon this by a reading or literal reading of the 4th amendment. I respectfully call to the courts attention that the 4th amendment, paraphrasing a little bit here, but it says people have a right to be, quote, secure in their persons. That is the very first item of protection that is contained in the first amendment. It says persons 4th amendment it says persons then houses and i believe it says personal effects and one other item. It is significant to note i think that the very first item of protection in the 4th amendment is persons. We would contend this fact alone lends credence to our view that privacy does follow the individual. So there is so much i want to ask both of you about that. Here we have a person whos never argued before the Supreme Court before, and you heard how he approached this and really kind of turned the thinking on its head. What is your reaction . My reaction is that this is amazing. You know, it doesnt happen much that the court changes its mind at oral argument. It certainly doesnt happen often that the vote behind the scenes changes. I think it almost never happens that a fundamental transformation in constitutional doctrine happens on the fly because a single lawyer has a flash of inspiration and argues it before the court and they listen respectfully and they actually embrace his suggestion. I hadnt known before learning from landmark cases and seeing Harvey Schneiders interview how pivotal he had been and just in real time to see the oral argument he says when Justice White asked me a question that seemed to suggest he was focusing on a subjective test i responded no it is an objective test whether a third party would arrive at that conclusion. You are seeing constitutional law being made in real time. It is unusual. It is important. And it transformed the law of the 4th amendment. Thank you, susan, for having created this episode to teach us this really significant change. And what is amazing about it is that conclusion is not obvious. A potentially more obvious explanation is what the court adopted for a long time which is that persons, houses, papers, and effect were all to be read of a piece and the person, the body of the person from being seized or physically searched, right, not that persons meant the right traveled with that person no matter where they were. If that were the case why list houses . Houses would be superfluous. So the most natural thing, in that moment he was able to convince the majority, a substantial majority of the court that he was exactly right and that i think is really an amazing example of why it is so important. Why the modern era a lot of people, you know, they rate how often justices ask questions and try to read the tea leaves about what is happening in oral argument but the truth is those orders matter a lot. They read all the papers and the briefs and when they come in with the questions they are coming in to figure out what are the weak spots of the argument . What does it mean as we think this is Going Forward so this proves oral arguments matter a lot and this is a great example. But Harvey Schneider said the justices listened and they did not interrupt. As you said, today people count the number of interruptions and in fact ive read recently that the current chief justice is trying to figure out how to let the counsel at least make a little argument before they start getting peppered with questions. What due think was going on here as the dynamic . The court different . Or were they just so interested in this argument . I think it is a little bit of both. We are in sort of an era where at this time things were moving a little slower at the court. The justices were sort of thinking about the issues before they were going for the questions. They may have prepared slightly differently back in this era. In the modern era what you see is the justices have a lot more information at their disposal right away. Theyre much more prepared with the entire entirety i think of the body of underlying case law so theyre ready to come in firing. Theyre ready to sort of ive got my eight questions i want to figure out what is going on and get the ball moving. And i think youve seen that not just in the Supreme Court but the lower courts. And so well see if that trend continues but i do think that might be part of it. You know, it was just a different era i think in the country. It was. And you say it so well and there was an article in the New York Times reencently that shows as the court and the country become more polarized the justices are asking each other more questions rather than the advocates. They are trying to persuade each other and argue their own case which leaves less opportunity for open minded listening and, yet, as you suggest, it does happen. The carpenter case it was so interesting Justice Gorsuchs powerful questions about Property Rights seemed to be reflecting recent intervepgss including by some blog entries about the property based theory in katz that seemed in real time to be sort of introduced in courtrooms. Maybe well see in carpenter another change of mind like we saw in katz. Over time actually the bench changes the court. The bench used to be state and they actually curved it so the justices could almost speak to one another as theyre asking questions. I think jeff is exactly right that youll see the justices talking to one another through counsel. Asking questions of counsel but really a conversation among the justices at times. That contributes to lots of conversation going on during oral argument. Lets listen to the argument the government was making in katz. It was made by john s. Martin jr. Assistant to the solicitor general tasked with this important case. There was a turnover in the Solicitor Generals Office. So well listen as he is responding to questions from Justice Byron white. Were dealing with a public phone booth. We are dealing with something different. It is our position even if this court were to say the public phone booth was entitled to some degree of protection it is not the same protection that comes to a house. A public phone booth closer to a public field certainly than a home and a party in a public phone has no right to think he would be afforded protections he would be in a private house. We submit what was done here was not an indiscriminate search and seizure as condemned in irvine. It was limited to, one, only involving the particular petitioner in this case innocent members of the public were not subject to surveillance. Only one instance which has happened the agents testified that the tape recorder involved was a stereotype. Had two types, a and b. They could control which conversations they would listen to and did not in fact listen to the conversation of the innocent party. What did you seize . You say this was a reasonable search of what . What i would say is that under this courts opinion in berger i think the words were seized. So the words were seized and the ad misibility of those conversations depend upon the reasonableness of that search. One of the rules is under rule 41 is you cant search for mere evidence. Do you think these words over the telephone was a fruit or instrumentality certainly in this case the actual means and instruments of the crime. The crime is to transport wagering information or wagers over the interstate telephone facilities. Would you help people decode how the justices questions and how effectively the Solicitor Generals Office was answering . The hard thing about this case, one of the things we hadnt gotten to yet in this discussion was can you search or seize intangible things, right . We typically think of the 4th amendment or at least that point had been thinking about the 4th amendment protecting these places that can be searched, persons that can be seized. Here were talking about conversations. The court had just been developing this doctrine of whether you could seize out of the air these words, these conversations. The question was okay. If you could seize these things how do you determine whether theyve been seized and what the privacy right is and what the right in the intangible things is and that was the conversation that was going on between the lawyer and Justice White. Interestingly Justice White was the justice that justice gore such clerked for when he was a law clerk on the Supreme Court. So interesting to see how this plays out. Byron white of course a famous football player. And the courthouses the justice sat in for the decades before the Supreme Court was the byron white courthouse out in denver, colorado. It is a great connection between those two colorado justices. And so interesting to hear Justice White ask whether this was mere evidence. There was a rule in place at the time called the mere evidence rule dating back to the framing which was designed to protect private diaries. You couldnt search the mere evidence where i record in my diary that i committed a crime only, you could search contraband because it wasnt considered property and was forfeited to the state. The mere evidence rule was overturned soon after katz and reducing the protection for private diaries. But the court is struggling with john martin to figure out whether conversations are tangible or not. Whether you have a property interest or not. John martin did a great job. Incidentally he was later appointed a Federal District judge by george h. W. Bush. But Justice White has no vocabulary for figuring out exactly how to deal with it and that is why the government is saying there is no property interest in this glass based phone booth. Were going to return to phone calls. Next up is tony in brooklyn, new york. Youre on the air. Welcome. Caller good evening. Admittedly i dont know a lot about law. My question is about the patriot act and how it affects katz versus the United States and the 4th amendment in general. And could you briefly explain to a lay person what the patriot act is . Sure. So the patriot act has had a series of changes in law enact edmeadly after 9 11 and the few weeks after 9 11 that gave the government more counterterrorism authorities to conduct surveillance among other things. I think the most relevant part of the patriot act to this conversation was what was known as section 215 of the patriot act. That modified an existing law about Business Records. What it do was it changed the law from being about a specific sense of Business Records and how the government could obtain them through an order from the Foreign Intelligence Surveillance Court to expand that to essentially anything that was covered by a typical subpoena. The reason it is relevant and katz is relevant as we talked about earlier a follow on case to katz smith v. Maryland determined that phone records, right, the dialing information of a phone call, is not covered by the 4th amendment because there is no reasonable expectation of privacy. Under the katz Rule Information you give to a third party. So section 215 was utilized most famously by the government to obtain substantially all the phone calls that took place with the orders here in the United States in the post 9 11 era and then later under section 215 of the patriot act. So the relevance here of 215 of the case is the meta data issue that goes back to smith v. Maryland that goes back to katz and it is ultimately being discussed and debated right now on the court as it was in jones and now in this carpenter case. Very much a live issue. James in greenville, massachusetts. Hi. Hello, james. All right. Well move on. Next up is paul. In white river junction, vermont. Hi, paul. Youre on the air. Go ahead, please, sir. Sounds like were having a little problem with our phones so well come back to that in just a couple of minutes. Were moving on to the decision. So the decision came down on december 18th, 196 57b it was as we said a 71 decision in favor of katz. Here is how it lined up. The chief justice of course and then a majority opinion as we said written by Potter Stewart and joined by warren douglas, john harlan, William Brennan, white, and for theas. There were three concurrences. And then one dissent hugo black. Here is a bit of the excerpt from Justice Stewarts majority. Once it is recognized that the Fourth Amendment protects people and not simply areas against unreasonable searches and seizures it becomes clear that the reach of that amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure. You were telling us earlier that there was a back story there about alliances on that so explain how we have three concurrences in this and how people decided to join in the majority opinion. Yes, so this back story is an account by peter wynne and there was an initial split after the oral argument 44 along the same lines as the certiorari vote which would have affirmed the lower court. Two weeks later Justice Stewart changed his mind and joined the justices voting to reverse. He circulated a draft opinion. Which was a memorandum initially composed by professor lawrence tribe who was one of Justice Warrens law clerks so shout out to professor tribe for this Important Role in the case. Justice stewart was influenced by the wire tap act which was being debated in congress at the time and he was also influenced by the recent decision in the berger case. Once Justice Stewart changed his mind then others fell into place. Justices white and harlan who also changed their position and that left justice black as the sole discenter and Justice Stewart wrote the opinion. Going to paul in white river junction, vermont again. Are you there . Caller yes. Can you hear me . Yes, sir we can. Go ahead please. Caller thanks. This is a great series. I appreciate it. Three years after katz in 1970 i was a graduate counselor at kent state university, and the Police Budget was increased from a hundred thousand to a Million Dollars a year and we were told that one of the devices they had implemented, and i dont know if this is true or not, was a laser beam that the police could use from their cruisers to listen to student conversations. Would katz apply to that . Suppose i had been accused of fomenting revolution. Would katz have protected me . Yes, it would have, because we do have an expectation of privacy that our private conversations are not being picked up by cutting Edge Technologies like laser beams that no one ever heard of before. We know that from the kilo case where Justice Scalia said if Cutting Edge Technology is used to, in that case invade the privacy of the home, then a warrant was presumptively required and the jones case suggested that even outside the home you might have an expectation of privacy against Cutting Edge Technology. In the end the government is limited in its ability to record our conversations in public by state and federal laws but the expectation of privacy test would have protected you i think against the laser beam. James in greenfield, massachusetts welcome to landmark cases. Youre on. Caller hi, susan. Thank you. What i just wanted to say was when Justice Stewart delivered the opinion, he took issue with the way the petitioner had formulated their questions, you know, which included, a, whether the public telephone booth is a constitutionally protected area and, b, whether physical penetration of a constitutionally protected area is necessary before search and seizure can be said to be violations of the Fourth Amendment to the United States constitution. He added a couple words in there. One was in place of right to privacy he added, but the protection of the personal a persons general right. And, anyway, that is what i had for that. Thank you. Thank you very much. Yeah, so the court was very careful. The majority. The Potter Stewart opinion was very careful to say were not owe pining on the general right to privacy. Were specifically talking about this phone booth, if he closes the door and creates a space, so while it is true the Fourth Amendment protects people not places, they were very careful to say were not laying out a general right of privacy and that the general right of privacy, the right to be left alone that was talked about in the famous dissent was to be enacted by the states just like the life and liberty of a person protected by state law so the stewart opinion was very narrow but also katz is almost never cited for the majority opinion but almost exclusively for the harlan concurrence which laid out the reasonable expectation of privacy and the idea it was made up of two components, a subject of component i believe i have an expectation of privacy in this space and objective component that society is willing to accept that you have in fact a reasonable expectation of privacy in that space. So the two subjective objective components the harlan opinion is the one that matters. While stewart wrote a well crafted opinion and one able to bring together the Seven Members of the court ultimately it didnt matter because the harlan opinion is all that anybody cares about. Here is a little bift the text of the harlan opinion. I join the opinion of the court which i read to hold only a, that an enclosed telephone booth is an area where a person has a constitutionally protected reasonable expectation of privacy. B. That electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment. So why is this so important . Because as was said it gives us a two part test and lawyers love that because they can apply it. The idea you have to have a subjective expectation of privacy that society is prepared to accept as reasonable was clear for lower courts to apply except that it wasnt because on the one hand who knows what someones subjective expectation is . In katz the guy closed the phone booth behind him but people may have different expectations of privacy in other cases. More significantly the court was never systematic about measuring what expectations of privacy actually are reasonable. There is a fascinating study by a professor from vanderbilt. He surveyed College Students and asked what are your expectations of privacy and learned there was no correlation between what the students said they expected, email privacy for example or privacy not having their diaries read, and the kind of interest the court has protected. There is a kind of lets make it up quality to the application of the harlan test and, furthermore, it is circular for the reasons weve discussed because it is possible for the government to lower our expectations merely by increasing surveillance. Justice harlan himself seemed to have second thoughts about the test and in the white case embraced a more i guess the fancy word is normative test saying how much should people in a free society be able to demand and that was far more robust but the majority of the court has not accepted it. So a brief excerpt from justice blacks dissent. He said tapping telephone wires of course was an unknown possibility at the time the Fourth Amendment was adopted. No general right is created by the amendment so as to give this court the Unlimited Power to hold unconstitutional everything which affects privacy. Im thinking about the hole in the pillow getting burned for the text of the constitution. Is there anything long lasting about justice blacks dissent in this case . Justice black was fighting a noble battle and dissented also in the griswold case because he didnt like the court making up privacy rights. He was a liberal originalist and the current originalists disagree. Alito said the framers didnt think about gps devices. There were none. Scalia said yes but there is an analog, a tiny constable hiding under the carriage at the time of the drafting and eavesdropping. You need a thousand constables that have to be very small constables or a very large carriage. Here you have the two conservative justices one an originalist the other not agreeing the Fourth Amendment applied but not for the same reason and justice black was toward the end of his career and being very rigid he wasnt able to see conversations as Digital Effects and for that reason wrote a noble but not in the end very influential dissent. Lets look at a number of headlines. From december, 1967 on the decision in this case the Los Angeles Times headlines Supreme Court rules bugging is subject to legal safeguards and in the New York Times high court eases curbs on bugging, adds safeguard insist police must obtain warrant to act. Doesnt forbid eavesdropping. We now look at this as a landmark case. How significant was it seen in society at the time . I think it was a big deal because it really did change the law and it also changed it in a way that was important. Because at that point these devices were just coming into vogue. This was the new era of electronic surveillance. Theyd been around for a while but this was an important way the government is collecting evidence. We know in the modern era it is the principle way in which the government is able to both obtain criminal evidence and in the case of National Security cases National Security evidence and information about terrorists and operatives and intelligence and the like and famously government officials or Campaign Officials as weve learned in the last few months and years and as generated a tremendous amount of debate within the executive and legislative branches in the last few months alone. So this was an important case even at the time but i dont think anybody realized how transformative it would be and how it would influence our law even 45 years later, sitting here today and having the same 40 years later i guess. 50 years later. The almost exact same conversation about okay. What does katz mean in this context . What does reasonableness mean . Where do we look for reasonableness . Do we look for this objective test on the second part . Do we look to the framers and analyze what they thought . Do we look to what modern law says . Look at the law of the state, the jurisdiction in which this is happening . These are very much debates today at the court i think as these questions are playing out. In a moment well hear from the young lawyer Harvey Schneider today telling the story about what happened when he learned the decision. First lets hear from ron in orford, new hampshire. Hi, ron. Caller thank you for taking the call. Hi. At the uniting amendment. Com the crowd source constitutional amendment privacy is one of the things we really struggle with trying to figure out and we made quite a bit of progress actually. Privacy is an instinct. It is something that evolved through nature. What it comes down to is not places and people. It comes down to information. If you think of it in terms of information it is a lot easier to get your hands around. The Fourth Amendment mentions papers. And at the time that the Fourth Amendment was written paper was the only way information could be stored. So if the justices think of it that way in terms of papers as information, then i think it would be a lot easier for them to extrapolate what the right really means. The problem is that when the when that instinct is manifest in a culture the way it manifests varies from culture to culture so standards have to be established. That is where the common law comes in is establishing those standards. Great. Thank you for that. Im going to add one more related comment and then have you both answer. This is a tweet from wild and wonderful. As to the seizure of intangible things particularly words we should remember that the founders had gained independence from a country that would put unconvicted persons to the rack to force confessions. Perhaps they did envision protection of intangibles. So for those two viewers what would you say . Well, they are both really important comments and the framers absolutely believed we have certain natural rights that come from god or nature and not from government. And those include a kind of cognitive liberty of privacy of our thoughts and we know that because the great battles of the revolution were fought over the right to make anonymous pamphlets. The first caller is right that although the framers focused on the technology then paper where people recorded private thoughts and diaries that has to be translated into a digital age. It is so important that your crowd sourcing amendment project is trying to come up with ways of making that clear in the amendment. I love to ask students how would you amend the Fourth Amendment to make clear its application to Digital Technology and often people will suggest adding the word digital before facts. If it clearly said the right to be clear in our Digital Effects then our cell phone records and geo location movements would be specifically protected. Justice black, his concern was it wasnt like wiretapping was unknown at the framing. He said look its just a modern analog to eavesdropping which was well known at the framing. If they had meant to protect against eavesdropping it would have said so but they didnt say so. They said persons, houses, papers, and effects, and so they didnt mean to. So this very much, that question of do you look at just the words, are you trying to look at what they were trying to protect as an intellectual matter, was it about protecting what is in your brain and the way you translate it on to the piece of paper or the things you carry around with you . You know, there were debates at that era of the court and in the modern era of the court. Do you solve that by saying, well, the modern is the iphone or due come up with a different theory of the world . David vincent watching us says on twitter essentially sending a message to ma bell who along with western electric monopolizes telefonic services and equipment at the time and as mentioned actually facilitated the search. Lets hear from charles katzs lawyer on hearing the decision i think the decision was december so it was between october and december, two or three months, and you just wait. Then in the mail you get the the decision from the court, which, 71, we won and it was exhilarating. The very next case that i had when i returned from arguing before the Supreme Court was representing a guy on a traffic ticket in englewood, california. Thats going from the heights to the depths. How human is that clip . In the mcgeorge law review many years later mr. Schneider also added a post script in his description of the case. This is what he wrote. There is a post script to katz which the reader might find interesting and perhaps demonstrative of human nature. When burton marks informed katz of the historic decision that now bears his name his First Response was not one of thanks or gratitude. Rather he wanted to know if he could sue the Telephone Company for permitting the fbi agents to put one telephone booth out of order and so it goes he writes. Were going to spend our last 15 minutes talking about the consequences of katz and its long tale. Weve done a lot of that already. Lets listen to jimmy in athens, georgia. Youre on the air. Hi, jimmy. Jimmy in athens, georgia . There you go, sir. Youre on the air. Go ahead please. Caller oh, yes. Im glad that this they did increase the amount of freedom we have with this decision. But one thing they did not mention was the right to gamble. Has there ever been a case that says, hey, that law should have been unconstitutional because people have the right to gamble . Thank you. Thats really interesting. Under the Old State Police powers jurisprudence you could absolutely ban things that were against public morals ranging from gambling to cob fighting which was deemed to lower the public morals. But Justice Kennedys decisions recognizing a right of autonomy, a right to form your own conception of the mystery of human life could theoretically be extended to protect the right to gamble however i think i am confident in saying the court has not yet extended the right to autonomy to a right to gamble i think that is exactly right. First of all charles katz basically never heard from again so he faded into the history books after giving his name to this case and pursuing it to the court which gave us this expanded view of the right to privacy. But in fact society reacted to it. I want to talk a little bit about that. Here is a New York Times story in december 20th, 1967. New tack in bugging. Supreme courts ruling may produce state laws allowing eavesdropping. I want to ask both of you how did states respond and how did Congress Respond to this ruling . Well, Congress Passed title 3 the omnibus crime and control act of 1968, which provided a procedure for wiretaps. They created a set of predicate acts for which wiretaps could be utilized. The law has been modified over time but congress reacted by legalizing wiretaps for a specified set of crimes. That is a law that stayed with us, remains law today. Its been expanded and modified over times to fwif you access to different types of data, Different Levels of requirements including 1986 amendments to address Electronic Communications, provide additional protections. Some would say inappropriately low protections today for Electronic Communications. A big debate about whether it needs to be updated for the modern era. And then obviously the laws we now see being applied today in these cell phone cases and in these metadata cases which permit access to noncontent records for anything less than a warrant. There is a big debate in the policy space as well as before the courts as to whether that is an appropriate standard or whether a warrant ought to be required for some of these noncontent records where it is about your location and it could track you for weeks and days and months on end. So we have been talking about some of the cases that came out. Here are a few of the key ones. In 1972 the Nixon Administration challenged the omnibus crime bill with a case called u. S. Versus District Court. In 2001, kyllo versus u. S. On thermal imaging. U. S. V. Jones in 2012 on the gps tracking device. And youve both referenced the current case in carpenter versus u. S. Which will be decided later this year on the tracking of cell phone positions with the towers. What is important to know about this series of cases . Each is an attempt to translate the lessons of katz in light of still new technology. So the keith case says there could be a National Security exception to the Fourth Amendment and if there is a real threat to National Security maybe you could have lower standards but generally you do need a warrant to get records. The kyllo case involved thermal imaging that could measure the heat on the outside of a house and a guy who was growing marijuana with heat lamps Justice Scalia said was protected because the technology could reveal intimate details inside the house like the hour that the lady of the house was taking her daily sauna or bath. The jones case has a gps device affixed to the bottom of a car and there are trespasses involved because the police walk on the guys driveway and seize the car when they stick the gps case. The reason the carpenter case is so important is it could be the most important Digital Privacy case of the early century because it involves the question can the police, we walk down the streets with our cell phones, emitting location information, and using these records the police reconstruct a guys movements for 127 days for five months and the question is do we have an expectation of privacy in those records we have emitted . The government said no. Weve voluntarily surrendered them to the phone party invoking the Third Party Doctrine based on katz. But at the oral argument Justice Gorsuch was focused on our property interest in the digital records and Justice Sotomayor in the privacy expectations that the government is not going to be tracking our movements for five months and seeing the people we associate with and the rallies we attend and so forth. So what is so exciting about carpenter it is an opportunity for the court to do what it did in katz and translate the amendment with a theory that is based not in existing case law but requires them to take an additional step and they may do so for Different Reasons but it is exciting to see justices of both sides converging around that protection. What would you say about that list and wow add some others . I think it is a particularly interesting case and one near and dear to my heart because i teach National Security. Keith is named keith because the u. S. District court involved a mandamus petition to the District Court to require the judge to do something. That was that it dealt with this surveillance of a gentleman who was trying to blow up the local cia office in ann arbor, michigan. What the court was focused on there, is this a domestic National Security case or interNational Security case . And the whole case decided actually in favor of against the government and said this was domestic security and they should have gotten a warrant but it is only known for its footnote which says we assume in cases of National Security you may not need a warrant. They dont even decide it, just assume it and every court since then has concluded for National Security you dont need a warrant. You need reasonableness of the Fourth Amendment. This is an interesting doctrine because it has developed the entire super structure built on the fact you dont need a Fourth Amendment warrant. You might need something close to it. It is an interesting question. I think it is really interesting and important to the National Security context for that purpose. Christine is watching in somerset, new jersey. Caller hello. My question is about expectation of privacy and whether the bar will be lowered as the younger people have less of an expectation than we do. I was born right in the middle of the baby boom in 5 5. I talked to my niece who is a millennial about privacy and my expectations are very high. And she laughs at me and says, look. Get over it. There is no such thing as privacy. So if people in their 30s and younger feel there is no expectation of privacy then where does the bar stand for whats reasonable . Thank you. That is a crucial question. As you suggest if you have a test based on subjective expectations if privacy expectations go down so do the protections. It is not true that younger people have no expectation of privacy. Dana boyd the privacy researcher has done some really interesting studies suggesting that millennials just have different expectations than people of our generation do and they may be more willing to reveal themselves on facebook but also very, not so willing to be searched to the border for example. We cant have the show tonight without the facebook hearings are tomorrow and were having a National Conversation the biggest one ive ever seen during my many years of writing and looking at privacy about whether we trust private companies to manage data and to share it and to allow that to be governed by user agreements which may or may not be violated. If the world is experiencing that we have no privacy on facebook according to the katz doctrine that would suggest that the constitutional protections might be diminished as well. And that reaffirms Justice Sotomayors caution that we really may need to reconsider that subjective expectation doctrine. As important as katz was, as great an advance, it is not adequate for protecting privacy in the age of facebook. It will be very interesting to see what congress as well as the courts come up with next. I think jeff is exactly right and the big question now is whether, you know, there is some irreducible amount of privacy that has to survive even after you look at the subjective views of an individual and of society and whether society as an objective matter sort of the common law of the founding era sets a baseline that states cannot deviate below even if they were to permit a certain type of surveillance based on the views of the community at the time. This is an interesting debate that we will see play out here and as you mentioned, there is really interesting stuff about this in the chicago law review. Steven is in western connecticut. Hi, steven. Caller hi. I had a comment that i wish you had advertised this landmark series more so more people could watch it and understand that the courts have a legitimate role in making law which apparently half the country does not understand. But my question is also a quick one. Is there any agreement as to what is an objective, evidentiary standard for what society will accept as reasonable . Is it state law or Court Decisions or Public Opinion polls . Or is there anything, because otherwise the objective standard becomes it seems to me sort of like a subjective standard, a shaggy dog story. Does the court think it is shaggy . No i dont think that is such a shaggy dog. Interesting. Answer . Justice stewart who wrote the majority opinion in this case of course is also the one who said about pornography, i know it when i see it. In a lot of ways the subjective standard i think jeff would probably agree with me that there is no accepted test for what is objectively determined, what people will accept other than what the court says at the time. We have seen the court when it comes to the cruel and unusual punishment talk about what the states are doing, sort of taking a look at what the states and even what foreign jurisdictions are doing. Theres a lot of disagreement about whether they ought to be doing that. But that is at least one way the courts tried to interpret certain aspects of what they think society thinks of terms of the constitution when they are trying to apply it to the modern era. Again, hotly debated whether that is an appropriate methodology for constitutional adjudication. What do you think . Youre absolutely right. The lack of precise standards does make it like a shaggy dog. In the eighth amendment the court might look to state constitutions or to state laws but technology is moving so fast that often states have not passed laws regulating for example geo locational privacy before congress has. Theres been a bill pending in congress that has bipartisan sponsorship to regulate geo locational privacy. It hasnt passed yet and not enough of the states have regulated it to give the court guidance, which makes the whole enterprise frustratingly amore fouse and makes originalists and textualists to look to property standards. And its been said lets look to state trespass rules to try to establish something objective. This is what justice black was upset about. To give him his due he was right there is something mushy and shaggy dog like about this reasonableness standard and i think both sides are recognizing it is really not satisfactory. A historical question from a viewer on twitter asking do you feel that earl warren expanded civil rights because he felt guilty about the denial of japanese rights during world war ii when he was governor of california and then going to d. C. To see further denial especially to blacks . Do we know anything from his writings or commentary about motivation . We know he was very upset at the end of his life about his role in the japanese internment and his autobiography in revising it he expressed regret for his role and then he wept. However, earl warren was not soft on crime. Contrary to popular conception of the warren court and those impeach earl warren banners he sided with Law Enforcement frequently. He was a former prosecutor and did not view this case as one that was going to work Law Enforcement and he thought the police could get a warrant so i think the answer is that although he was very regretful about his role in the japanese internment cases it did not influence his views in these cases. George in pittsburgh you are on landmark cases. Welcome. Hello. Thank you. I was wondering how the decisions might apply to nongovernment entities during the surveillance and recently weve had a lot of talk about facebook and other types of organizations doing that sort of thing. Sure. Youre asking it of a very important week as we noted tomorrow and wednesday here as youre watching this live, Mark Zuckerberg before Congress Answering lots of questions about privacy. Of course the challenge is you know a lot of us use gmail, facebook, twitter, you name it. Weve voluntarily given to these companies our data and a lot of access to our data. I dont know about you but when im at least back a few years ago i used to be on gmail and if i was looking at email about the bahamas id get an ad for a bahamas trip. I knew sort of instinctively they may not have been reading my email but certainly were going through it and identifying words and pushing me ads on that basis. And so the question is what does that do to your reasonable expectation of privacy at least as against google, right . Do you have one . Do you have a user agreement right . Youve sort of agreed theyre giving you this free account you really want because everybody has one and facebook is giving you this great access to all your friends and you know what theyre doing and not paying a penny for any of this and the trade is you give them all your information. Maybe you dont really want it used to send you political messages. But you agreed to do it and so, you know, what is the balance . Does Congress Need to intervene and get in the game . Does ftc need to regulate it . The challenge as jeff points out is laws are hard to change. Theyre sticky. Technology is moving at such a rapid rate. It is hard to imagine a government so bad at Technology Keeping up in its laws and regulations with modern technology and not skiefl innovation. It as big debate. We have just a couple minutes left. As you talked about this is evolving on so many different tracks at one time. We have threats to this nation both foreign and domestic. Technology is moving at the speeld of light. And devices are coming in we could not even have imagined two years ago that along with software. Weve got the commercial sphere as well. Over the course of time do we know how important katz is going to be . We know that katz will serve as an inspiration to judges and citizens to translate the protections of the amendment so we have the same amount of privacy in the age of the wires and the cell phones and facebook as we did at the time of the framing. As jamil said the amendment says Congress Shall make no law. It doesnt say Mark Zuckerberg shall make no law. It is not enough to say that simply because we sign a user agreement then we have no privacy and there is not an easy answer. Congress and citizens and regulators and the federal trade commission, ultimately we the people have to be as creative as those justices were and as Harvey Schneider was, the hero of our show tonight. Thank you, judge schneider, for having challenged the court to translate the amendment in light of the new technologies and that is what all of us have to do now that our privacy is being threatened not only by the government but also private actors. So closing comments, the enduring nature of katz. What would you say . It certainly does influence every debate about the Fourth Amendment and about government sla surveillance and is very much a live topic in our political bodies, the legislature, between the legislative branch and the executive branch in recent weeks and months. Inevitably the court will take up more cases and evolve the law. Will katz be forgotten . I highly doubt it. We are about half way through our series. If youve been watching with us in each of these programs we have said thank you to the National Constitution center. Tonight is my opportunity to do that with the president of the Constitution Center sitting here. Thank you to you and your team for all your help in this wonderful series. That is it for our program tonight. Thank you for being with us. Have you watched lectures in history lately . Every saturday at 8 00 p. M. Eastern on American History tv on cspan 3 go inside a Different College classroom and hear about topics ranging from the American Revolution, civil rights, and u. S. President s. To 9 11. Thanks for your patience and for logging into class. With most College Campuses closed due to the impact of the coronavirus watch professors transfer teaching to a virtual setting to engage with their students. Gorbachev did most of the work to change the soviet union but reagan met him half way. Reagan encouraged him. Reagan supported him. Freedom of the press which well get to later i should just mention madison originally called it freedom of the use of the press and it is indeed freedom to print things and publish things. It is not freedom for what we now refer to institutionally as the press. Lectures in history on American History tv on cspan 3. Every saturday at 8 00 p. M. Eastern. Lectures in history is also available as a podcast. Find it where you listen to podcasts. Cspan has unfiltered coverage of congress, the white house, the Supreme Court, and Public Policy events. You can watch all of cspans Public Affairs programming on television, online, or listen on our free radio app. And be part of the National Conversation through cspans daily washington journal program. Or through our social media feeds. Cspan, created by americas Cable Television companies as a