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

Having business before the Supreme Court will want to draw near and give their attention. Announcer landmark cases, cspans special history series. Exploring the human story and constitutional dramas behind 12 Supreme Court decisions. Quite often, in our famous decisions, the Supreme Court was unpopular. Lets go through a few cases that illustrate what it means to live in a society of different people who help stick together because they believe in the believe in the rule of law. Tonights case is katz v. United states. It is a 1967 case. Charles katz was an unlikely hero. He took his wiretapping case to the Supreme Court and in a seven to one decision expanded our privacy rights. We will begin by listening to Justice Samuel alito in his constitution hearings where he talked about the importance of the kats case. I was talking about cats versus the United States this morning in relation to wiretapping. You had to look into property law in the interest of an invasion, and then with the development of electronic communication electronic surveillance wiretapping another surveillance which was what was involved in katz, the Supreme Court said that this is not a sensible way to apply the Fourth Amendment principle under the conditions of the modern world. And they said, famously, that the Fourth Amendment protects people, not places. They found the doctrine will underpinnings of the old own stead rule to be undermined by the elements of the society and then shifted the focus from property law to whether somebody had an expectation of privacy. Our two guests at the table are going to impact that story for us today let me introduce you to Jeffrey Rosen, the Jeffrey Rosen is the author of numerous books about the law and court. His latest is a biography of William Howard taft. Thank you for being with us tonight. So great to be. Here we have the founder of the National Security institute and policy program at george mason university. He clucked for neil gorsuch twice in the federal court system and former counsel and adviser to Senate Foreign Relations Committee and the house and intelligence committees and to president george w. Bush. Thank you for being here tonight. Thank you for having me. As we begin, Jeffrey Rosen, we worked with you on selecting these cases. This is the one you wanted to do. Why is this case interesting to you . Because its maybe 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. It was the general warrants and rich of assistance that sparked the american revolution. In the age of electronic technology, it made no sense to say that you had to trespass on private property in order to have an unreasonable search of our persons or electronic affects. By declaring that the law protects people, not places, the court set the stage for moving the Fourth Amendment into the electronic age. 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 into that . How important is . It katz is the central case about how we think about the Fourth Amendment and how we think about it in surveillance and one of the key issues in law today is surveillance and how it has become industrial, its a topic of much debate after revelations in congress and there will continue to be debates today, the court, even this term, haves two major cases involving it continues to be very much a hotly debated topic at the court and in our political system. We need to set sometime just on the Fourth Amendment itself im going to put the language of it on the screen. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and shoot 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. Jeffrey, a little bit of a history lesson, what were the founders thinking and what gave rise to this amendment . Chief Justice Roberts has quoted the speech of james otis in 1763 denouncing the writ of assistance. John adams said that at that moment to the child revolution was born, that is how important this historical story is and the rights of assistance in general warrants allowed the kings agents to break into peoples homes, searching for evidence for the fact that they had not paid to the hated tea taxes or published anonymous seditious pamphlets criticizing the king. The warmth did not specify the places, but it said go find the authors of these pamphlets or go find people dont pay their taxes. They were instruments of tyranny that allow the agents to rummage through places indiscriminately. By striking down the general warrants as tyrannical, common law courts established the principles that were embodied in the revolutionary and state constitutions, the massachusetts constitution of 1780 as a longer version of the Fourth Amendment. And when James Madison drafted the Fourth Amendment, he cut and pasted it from those state constitutions to make clear that you couldnt have searches that dont particularly specify places to be searched and a person of things to be seized. You teach the Fourth Amendment, what do you tell the students about what its importance is . It really is at the core of our civil liberties, it really protects us as jeffrey said, against these general general warrants and the tyranny of the king. Our framers came from a place of deep suspicion of overweening federal or governmental power. And so when they built our system of governance, they built a federal government with powers and then they laid out the specific recipe for entitled to and one of the court writes was the right to be protected against these unreasonable searches and seizures. We will get calls and tweets in about ten to 15 more minutes. Let me tell you how you do that you can send to zero to seven four eight nine zero one if you are in the mountain time, you can send us a tweet at cspan and use the landmark cases. As that has been each week, there is a discussion underway on our facebook page, you can be part of that now or after a program is over, if you. Like as we get into the particulars of this case, there are a couple personalities that people will hear about. One of them is charles katz. What can you tell us about charles katz . He was a constant gambler. He was a leading basketball handicapper in the United States. He had residences in new york, los angeles at the time of his arrest. He was living in a hotel on 8200 block of sunset boulevard, the famous sunset strip famous for many rock bands, all sorts of things, when he was arrested. He used to stroll down the street to a set of three phone booths on the street in order to conduct his interstate gambling mission. And the fbi got wind of this, thats what led to this case, the wiretapping, the surveillance of the phone booths when he went in there. We have to explain what phone booths were, someone sent in a tweet last week Harvey Harvey schneider, who is he . A retired superior court judge. And he was the retired partner of a man named burton marks made a great filing in this case. When he filed a brief, he said a man has much a right to bet in his own home as he does in a phone booth. Schneider came up with the core of the case which was rather than focusing on what was constitutionally protected, the question should be, do people have reasonable expectations of privacy . Schnatter remembered his own Law School Class where he studied the views of the reasonable man and he made that argument before the Supreme Court it ended up defining the case both of you who teach law, must feel pretty good about the imports about the individual classes and the impact that they can have on your students, overall. This is one class that sparked a brainstorm for this lawyer as he was approaching the case. Absolutely this is the most exciting sort of case to teach and criminal procedure, because it does inspire thing people to transform the amendment and to translated in light of new technologies. That was what Harvey Schneider did, thats what Louis Brandeis did, that is what cspan viewers to try to do tonight. We are going to hear more about the court overall, but he used he was an important character in this. Justice of the Supreme Court appointed by president eisenhower, served in world war ii as a member of the Navy Reserves and he oftentimes found himself in dissent during the war accord era, Potter Stewart, in this case, in the majority, he was writing a slightly nash narrower opinion than what katz is known for. Cat katz is known for concurrence, they had the majority in the votes, but the really influential thing that came out of this case was concurrence. Youve written a bra graffiti on him, Lewis Brandeis was an important character in this, why . He wrote the most important privacy dissent in history, its in the own state case you can get online right now but keep watching the show redid after the shows over. Brandeis in homestead, is descended from chief justice taft, i love taft very much right now and right about him in this book, but chief justice taft and homestead need a physical it was a case involving wiretapping and another big bootlegger of his time. There, the wiretap was under a public sidewalk, there is no physical trespassing, brandeis in his amazing dissent, looks forward to the age of cyberspace and fmri technologies and says, waves may someday be developed by which is possible without physically intruding into desk drawers to extract secret papers and introduced them in court. Brandeis said the question was the right to be let alone and the amendment had to be translated to protect the same amount of privacy in the age of the wires as the former took for granted in the 18th and 19th centuries. In the area of the time where oral arguments are being recorded by the court, to give you the particulars of this case, we are going to listen, we mentioned earlier that the lawyer in the case was Harvey Schneider we are going to listen to him and the oral argument as he teased up the particulars of the facts of the case for the justices that will help us understand how this brings it to the Supreme Court. The facts of this case are simple. The law applicable is Something Else again. The facts are as follows, charles katz was surveilled by the fbi for six days. The surveillance was conducted at the use of a microphone being taped on top of a public telephone booth. There were three booths. One booth had been placed out of order by the telephone company, and with the Telephone Companies collaboration, the other two booths were used by mr. Katz sometimes used one booth, sometimes he used another. The tape was faced on top of the booth, the microphone was placed on top of the booth via tape. The fbi had read their homework and not physically penetrated into the area of the phone booth. After six days of surveillance, charles katz was arrested. We have a picture of the phone booth on sunset boulevard that was a character in this case. Can you explain the authority under which the fbi was operating . The fbi agents, the understanding was that as long as you did not invade the physical space, the home, there was no problem. So they did not get a warrant. They knew they had been watching mr. Katz for a while and that was his normal business to enter the phone booth and make his bets, or take the bets. So they put the microphone on top of the booth and recorded what was happening inside. Then mr. Katz would walk down and an agent would follow him. They turned the microphone on so it did not record anyone else. So they were not penetrating or violating, so they said, they did not need a warrant for this. What law was he breaking . Was betting illegal . What attracted the fbi in the first place . There are statutes involving Money Laundering and ones against betting. Here it is. A law against the transition of wagering information by telephone. And knowingly using a wire communication for the transmission for bets or wagers, so he was violating the law. Everything turned on the constitutionality of the underlying search. What was illegal about it in the fbis mind, was that it was interest . Eight if it had been a local phone call . The gambling if it had been local, it wouldnt abuse the interstate wire now wouldnt fallen under federal law. Thats how we wound up in federal court. In what was then the Southern District of california, now the central district. That is how its wound its way from backward into the ninth circuit and ultimately to the Supreme Court. You know the famous line in the case that he said on the phone, that was a hallmark of his bedding. Do you want to tell us what it . Was he said and now of course im going to forget it but he said to cain minus seven for a nickel. The question was was this abet . I think 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 dollars do we know if they won . Thats a great question. I dont know. Lets find out. He was taking tons of bets on his line, he was calling all of his acquaintances and the people that gambled with him and the people he placed his bets with. He was a book maker. He would place bets on both sides of the thing and take bets and place them and sort of engage in the process. He was literally the biggest basketball handicapper of his time. Its striking, homestead was the biggest bootlegger of his time, these are not small potato guys, its interesting that in both cases, the feds did not take the time to get warrants. These guys were under serious enough suspicion that they might have done so, but they didnt, and they gave rise to these landmark cases i want to walk through the timeline of the events leading up to this case i want to walk through it so you can see how the events were proceeded the fbi started bugging the phone booths all the way 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 may 30th of 1965, he was convicted and fined 300 dollars. That seems pretty small, actually, for eight counts. November 17th, 1966, ninth circuit courts of appeals oppose the conviction. And on march 13th, 1967, the Supreme Court decides it is actually going to hear the case. Eight counts as a lot if you had a client that was facing eight federal counts, what would you say about how serious this was . They had him dead to write. They had him on the recorder, getting on the phone on those phone calls, his lawyers didnt have, he didnt do it you had the famous minus seven line. There was no argument that he wasnt in fact engaging and gambling. They had to come up with a theory of why the evidence could be introduced the theory was that people that people have an expectation of privacy. When he went into that phone booth and closed that door, he was creating a space for himself, or he had the expectation that the government couldnt surveil without a warrant. Having done so, they couldnt use that evidence against him without a warrant. Why would the ninth circuit have upheld this conviction . What was their legal reasoning . It was clearly legal under existing law, the homestead case said you need physical trespassing to trigger the Fourth Amendment and just as in homestead they put the wiretap on a public sidewalk leading into an office here was a public phone booth, in which cats had no property interest. There was a separate jurisprudence about constitutionally protected spaces but those were things defined i buy Property Rights like the home. The ninth circuit was simply applying chief justice tafts law as courts should, it required a conceptual leaf by Harvey Schneider and the willingness to embrace that leap by the Supreme Court, in order to strike down the surge will you explain the process of getting from the ninth circuit to the Supreme Court . Once they got from the ninth circuit, they had a chance to file a petition for discretionary review by the Supreme Court in the modern era the Supreme Court takes a very small percentage of all the cases typically takes cases that are National Importance or where theres a split between the circuit on his disagreement among the lower courts and this case, the law was fairly clear, as jeff has laid out, the law coming from homestead was clear, you had that physical penetration, the law from goldman, another important case, was clear. You could use the device placed on the outside of a wall and in that case it was a phone, you could please sit on the phone and here through the wall and they did this on the phone booth the case was fairly clear as far as i recall, there was not a circuit split on this question this was a case room court is taking in part because there was this deep concern about the modern era, the evolution of communications and the concern that it is law at the time, and if the law did not address those issues what about the cooperation of the phone company . Was that a given at that time . This is an area in the 1960s where at least for the longest period the company had been cooperative says the fbi asked if they could put one of the booth out of order to set up the microphone they had three booths if they had had three, it wouldve been hard to set up the microphone the company was cooperative enough to set that up they did not ask to they did not ask the company to put a wiretap on it maybe they were concerned about it, although i dont think it wouldve been a problem. The wiretapping laws were just being worked out the burger case, in 68, give instructions to congress which responded in the wiretapping act of 68 the phone company went along they were not the apple of their workday, they didnt refused to cooperate do we know anything about the burton marks law firm, and what kinds of cases they took on . Did he hire a high price representation . Marx was a famous defender of the accused he was known for being a fierce advocate the interesting part is the role his law partner played in this case, developing this theory in the arguments that he made his deafness on his feet before the court really brought the court around the case was ultimately seven to one Justice Marshal did not participate but ultimately, he was able to convince Seven Members of the courts to go along with a complete change, and overruling of two prior big processes. And there was a split behind the scenes. It was originally either five to four or four to four and then Potter Stewart changed his mind in light of the argument, and that brought along the other justices leaving only justice black and dissent it was unusual to see that dramatic split and it was because of the creative arguments of Harvey Schneider lets pay tribute to the great Harvey Schneider for having change a lot of the Fourth Amendment. Were going to meet him, so how about that . Five videotape. We have mentioned that there is really very little known about charles katz. One of the ideas behind the series is to tell people stories. We know about the particulars of this case, but not a lot about him. Next, you are going to hear from Harvey Schneider talking a bit about charles katz, and then also our producer from the series, and his efforts to find out more one thing we know about charles katz is that he paid his legal bills and cash. We will learn a little bit more in this next clip. By the time we were heading back to washington, charlie katz was no longer could afford to afford to pay fees. Who cares when you get a case before the Supreme Court . You dont worry about whether your client can pay fees whats interesting is that this is a man who eight felony counts against him at one point, he clearly had a profile with the fda and Law Enforcement however, we cannot find a photograph of him. It was never published in any sort of newspaper, news wire, nothing like that theres 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 its hard for people to disappear that completely does it surprise you that there are so little . Not even a booking photograph . It is surprising. You think about the modern era, a lot of this case really relates to the modern era are our smartphones protected . Are the photographs on your phone protected from governments forecheck it without a warrant . With a warrant, under what circumstances, how would you get it . It is amazing that the progenitor of all of this discussion cant find a photo of the. Were going to move to the Supreme Court and learn about the makeup of the court in the arguments in just a few minutes. Its time for some of your phone calls. Lets begin with roger in georgia. Youre on the air, welcome. Hi, good evening. If you want to see a phone booth you can go to Scott Pruitts office. , but my question is so katz said that the Fourth Amendment protects people, not places. But you have to decide what kind of interests are protected by privacy. Justice scalia in the heat sensor case said it also protects property. You cannot go look through a house with a heat sensor. But outside of that, there is the chief case of needing a warrant for wiretaps. There is not much about what is protected by privacy. We have these big holes thats a metadata can be captured it seems like the Supreme Court is not really keeping up with all of the advances. We have these devices that go to cell towers police have scanners, theres no protection against, that the court has taken is their chance will get a solution to those kinds of problems from this court . Great question on the one hand, this quarters inspiring in coming up with unanimous decisions, repeatedly saying that you do need warrants before you contract someone 24 7 with a gps device or search someone cell phone on arrest this year, as we will talk about later, the court will decide whether you can have surveillance of cellphones on the other hand, the word you used was squishy, you are absolutely right, the standard of court that came up with cats, which we will talk about later, is that you have to have a subjective expectation of privacy and that societies prepared to have it be reasonable it is squishy, because peoples reflection of privacy reflects the privacy that they subjectively experience, as surveillance becomes more ubiquitous, our expectations go down along with our constitutional protections. On the one hand, katz was a great advance, and on the other hand, the court was squishy, and the court was dealing with that squishing us as you say today i think thats exactly right just in recent terms, the court decided a case about whether cellphones could be surveilled or could be searched without a warrant as a part of search leading to an arrest on the ultimately decided no and now this term, as jeff pointed out, the court has a case before it about gps surveillance and long turn where i should say, cell phone locational data surveillance the court is having to deal with these questions. And there is the famous concurrence in the jones case, where she laid out the case, that there are these huge issues coming out now with modern technology. The court is going to have to grapple with them, i think that in this very term, we are going to see the court grapple with these very difficult questions our next call comes from michigan, mario, you are on, welcome thank. You was this one of the cases that fuel to the impeachment trial against earl warren . Did that movement have any political legs at all . Thats 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 esco bito. Case you remember strong thurman in that court when you teach this case. Esco bito. , i want that name to ring in your ears because he was supposedly a guy who is free based on a technicality in the Fourth Amendment the court became defined by all these criminal procedure cases that were seen as being soft on crime. I guess you could view katz as one of those cases and some of them gave rise to the impeach earl warren billboards, which were so famous back then fred is in california, hello fred thank you for cspan giving me the opportunity to talk i was listening to the case of the phone booth insensible of art and i have a general observation about all of these cases, regarding the Fourth Amendment, thats 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 it doesnt take a genius to recognize that you do not even have to do a lot of research and move from one court to another to find out that the new technology which provides information kept on so phones and other kinds of electronics also goes under the Fourth Amendment well i am enjoying this discussion, i think that we should have much more enthusiasm about going back to the right of the people why should take the court to figure out if something applies or not . Isnt it in the constitution that even if you cant decide whether this amendment applies or not, the right of the people should stay with the people, why do the courts take so long . I like to hear your enthusiasm and frustration that i have thanks very much jamil jaffer. I think there is an amendment in the bill of rights that says that all the rights are given to the federal government and are given to the people and respect respectively to the people it hasnt been interpreted very much it has been utilized, in part because there is very little detail behind it and the court has had a hard time grappling with what that amendment means that being said, the Fourth Amendment doctrine has changed over time. This case was a landmark case because it changed the doctrine that has been in place for 40 years and since then, katz has been the controlling precedent that dictates how we think about surveillance and has for the last 40 some odd years there has been an interesting shift just recently, the court has made a move back towards a more property based view of at least, in some surveillance cases, its revitalized omitted and goldman at least the underlying principles, going back to the the amendment the question now becomes, what do you do with these cases as we go forward in the modern era . The reality is is that the Property Rights approach could have some very variable application you saw at arguments in carpenter, but we were talking about the way that Property Rights might apply in the modern area to Fourth Amendment issues that such an interesting observation and it was so fascinating, as you suggest, to see the courts arguments to different but supporting positions on the one hand, Justice Gorsuch, as you said, resurrecting a property based approach and saying we have a property based interest in ourself and records because of the contract we have with the Cell Phone Companies on the other hand, the importance concurrence and jones case which you mentioned, says theres no it makes no sense to say that data surrender to a third party is one where we have an expectation of privacy that was focused more on our privacy expectations and the fact that 24 7 searches can reveal so much about us we should have a right to conceal our on expressed thoughts, since nations and emotions, to channeling Justice Brandeis is interesting to see two justices from different perspectives coming to the same result by bringing together two of these threats in the Fourth Amendment jurisprudence both of which come to a head in katz, which is why its so exciting to talk about michael is up next from North Carolina hi michael hello, my question is about how the katz case was used as a precedent in the 1979 smith versus maryland case, which did so much to expand electronic surveillance. Thank you its great that you mentioned smith v. Maryland that was the core of whats called the Third Party Doctrine, which sounds wonky but it is the key of what justice my your was talking about i lose all expectations of privacy, and the phone company can turn it over to the government cats was the core of that case because we held that we only have protection in dayton which we had a reasonable expectation of privacy. Smith hailed that when i voluntarily surrender the information, i lose all expectations of privacy in it even at the time, smith was controversial. He involved bank records, telephone records, rather, pen registers congress overturned a series of thirdparty cases, saying it is not true that when i turnover financial records to a bank, i had an expectation of privacy in. Them Justice Sotomayor notes, in an age when all of our data is served on a cloud, if smithee maryland is taken seriously, it means we have no privacy today thats where the case is so important, and why the katz underpinning is so crucial and white so interesting to see what the courts will do in the carpenter case. I think jeff is exactly right. It led to this mid case led to the things that we talked about after disclosures this discussion of governments metadata the reason the government was able to go and take these large email recurrence was because the court said there was no reasonable expectation of privacy. This darling of information, the stealing of information that you give to a third party, in that case the phone company, and in the case of the phone records, same thing, in the case of the evil records, your email service provider. As a result, weve had these huge programs of surveillance that is done without warrants. Under some authority, in that case the, to 15 authority in the patriot act, and then another case, the trees statute, but ultimately, it led to congress changing the law in the usa freedom act. This led to continued debates about whether this Third Party Doctrine is viable. Justice sotomyor in the case that its not viable, and the court came together to decide the case in favor of mr. Jones, who is a suspected drug dealer here in the washington d. C. Area. Ultimately, this is a continuing debate that is taking place here during court qatar will see some resolution of it from the court by the end of this term lets return to 1967 in the court that gave us this seminal decision. By virtue of the colors question, we know about earl warren. Lets take a look at the makeup of the court the eisenhower appointees still serving on the court at this point justice earl warren, harlan second, brennan and Peter Stewart roosevelts appointees black and douglas. The kennedy appointee, bayern wright and johnson appointee Thoroughgood Marshall did not participate here, and e xplain why. Maybe you could talk more generally about the conflict of interest they could have. It is typically the practice for the government, the Supreme Court. He or she is the lead appellate lawyer for the government. It is their office that argues the case before the courts, occasionally it takes cases of high appeal and high importance to the government. In this case, ostensibly, his role could have been that the case was up for a consideration during the petition of jones waited on behalf of the United States arguing that the case should not be granted. To uphold the decision in the ninth circuit, convincing mr. Katz. They were unsuccessful. The case came to court and my guess is that thats probably why he didnt participate. You spoke earlier about the war in courts legacy, particularly in area of criminal rights. Could you talk generally about the makeup of the core of the case in the alliances that have been forming over the years that the war in court was around. The core of the warren court was the alliance between earl warren and william brennan, who was the deputy and he helped corral majorities. Potter stewart, was viewed as a centrist, who could go narrowly and go either way. Marshall harland was of the conservative wing, and he dissented of some of the criminal procedure cases. And then there was black, and he was a liberal textualist appointed by roosevelt. He burned a hole in his pillow because he would stay up to meeting with the original text of the constitution. He could not bring himself to make up rights that were not in the constitution and he thought conversations were not covered by the Fourth Amendment. For that reason, he dissented. Do you have more to say about that court . I think he thought so because it does not mention it it talks about persons, houses, papers and effects black was struggling with this. I might even want to consider and wants to be covered but theyre not there. He was an absolutist, he was very much focused on the text of the constitution, and he couldnt bring himself to find the expansive definition in there and so, i think that was part of what was at the heart of his dissent in this case in deciding to hear the case, we learned that the justices were 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 . They are struggling with the question of wiretapping, they are trying to translate the amendment in new in light of these new technologies 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, that is why the questions they pose to the lawyers said, is it a constitutionally protected place . And it was so significant that Justice Stewart, in his opinion, basically conceded and said this is the question we ask, and its the wrong question. The real question is the Fourth Amendment protects people not places. You can actually see him acknowledging that the courts mind had been changed by the arguments itself. Mister katz lawyer, Harvey Schneider, was up against a very great deal of legal president precedent as he went up against the system to make his argument. He was an attorney without much experience, he was only a few years at a 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 they differed from the arguments that they had set out in their right in the first place. We will also listen a bit to the oral argument. Im sitting in my Office One Day and im ruminating about katz, probably ruminated about littlest during that period of time and i thought back to my time in law school. And particularly my course in torts and we were taught with regard to the tort of negligence, negligence was doing something a reasonable man would not do or feeling to do a reasonable man would do. We turn them the average reasonable ban. It occurred to me, we had it wrong in the court had it wrong. The inquiry ought not to be into whether there was physical penetration or whether there was a constitutional protected area of the, the inquiry ought to be whether the conversation that was intercepted had a reasonable expectation of privacy. And when we got to the court in october, i violated a very significant role of the court, because youre not supposed to race in our larger meant anything you did not brief. I never briefed reasonable expectation of privacy because i had not thought of it. They were really kind to me they were listening and not interrupted 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 indicated this morning that we think that the right to privacy, which is a Fourth Amendments concern as i understand, it follows the individual. And we would base our contention upon this by a reading or a literal reading of the Fourth Amendment. I respectfully call the courts attention that the Fourth Amendment, im paraphrasing a little bit, it says that 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, items, houses and then i believe its his personal effects. It is significant amount to note that the very first item of protection within the Fourth Amendment is persons we would contend that this lends credence to our view that privacy does follow the individual. There are so much i want to ask both of you about that. Here, we have somebody who has never argued before the Supreme Court before. And you heard how he approached this and really turned thinking on its head what is your reaction . My reaction is that this is amazing. 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, and i think it almost never happens that a fundamental change within the constitutional doctrine happens on the fly, because a single lawyer has a surge of inspiration and argues it before the court and they listen respectfully and actually embrace suit his suggestion i had not known before learning from landmark cases and seeing Harvey Schneiders interview, exactly how pivotal he had been in just real time, to see the oral argument. He said Justice White asked me a question that seem to suggest he was focused on a subjective test, i responded, no, it is an objective test of whether a third party will arrive at that conclusion. You are seeing costume constitutional law being made in realtime. It is unusual, it is important and it transforms the law of the Fourth Amendment. Thank, you susan. For having created this episode to teach us. This really significant change. What is amazing about it is that when you look at the text of the Fourth Amendment, that conclusion is not obvious. A potentially more obvious explanation would be that the court has adopted for a longest time, that persons houses, papers and effects would all to be read as a piece. And the person, the body of the person, was prevented from being seized or physically searched not that persons meant the rights traveled that person no matter where they were. If that were the case, houses would be surplusage. And yet, in that moment, in that moment he was able to convince a majority a substantial majority of the court that he was exactly right and that is an amazing example of why we have a lot of people they rate how often justices ask questions and they tried to read the tea leaves about what is happening in the oral argument. The truth is, those dont happen a lot because the justice prepare, they read the briefs and the cases when they come into their questions, they are coming in to try to figure out what, where the weak spots in the argument . What does it mean . This meant that orals do matter a lot this is a great example of why they matter. Harvey schneider said the justices listened and they did not interrupt. As you said today, people count the number of interruptions and i read recently that the current chief justices are trying to figure how to let the council make a little bit of their argument before they start getting peppered with questions. What do you think was going on here, the dynamics . Was the court different, or were they more interested in this argument . I think its a little bit of both. I think that we are in an era where at this time, things were moving a little bit slower with the court. The justices were thinking about the issues before they were going to ask the questions they may have prepared slightly differently back in this era i think, in the modern era, where you see is the justices have a lot more information at their disposal right away they have electronic databases of all the cases. They are much more prepared with the entirety of i think, the body of underlying case law they are ready to come in firing they are ready to ive got my eight questions, whats going on, lets get the ball moving. I think you see that not just in the Supreme Court, but in the lower courts. We will see if that trend continues. But i do think that might be part of. It and 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 recently, about an academic study that showed that as the court in the country had become more polarized, justices are asking more questions to each other rather than to the advocates. They are really trying to proceed each other and argue their own case, which leads less opportunity for open minded listening and yet, as you suggest, it does happen. And with the carpenter case, it was so interesting that Justice Gorsuch is really powerful questions about Property Rights seems to be reflecting some recent interventions including by a professor from chicago who had written some blog entries about the property base theory in katz it seemed in realtime to be introduced in courtrooms maybe we will see in carpenter another change of mind like we saw in katz. The benches actually changed the court, the bench used to be straight it actually curved eventually so justices could speak to one another as they are asking questions. He will see the justices talking to one another through council its a conversation among the justices at times that contributes to the lots of conversation going on indoor and in oral arguments lets listen to the argument that the government was making in katz, it was made by johnesque martin junior, an assistant to the solicitor general the reason as we said was Thoroughgood Marshall was being nominated to the court. There was a turnover in the Solicitor Generals Office. We listen to his responding to questions from Justice Byron white. We are dealing with something different. It is our position that even if this court were to say that they were entitled to some degree of protection under the Fourth Amendment, that it is not a protection that comes to a house. A public phone booth is more to a public field than it is to a home. And a party in a public phone booth has no right to expect he is subject to all the protections in a private house. We submit that was done here was not indiscriminate search and seizure, it was a very careful, carefully limited, to only one, involving one particular petitioner in this case, innocent members of the public were not subject to surveillance. There is only one instance that happened the agents testified that the stereo had two tracks, a and b. They did not listen to the conversations of the innocent party. Was this a reasonable search of a what . What i would say is that its under this courts position, the words were seized. The words were seized and the admissibility of that evidence, those conversations were reasonable under the search. One of the rules about reasonable searchers israel 41, you cant search without evidence do you say the words over the telephone were instrumentality . In this case, they were the means an instrumentality of the crime. The crime is to transport wagering information or wagers over the interstate telephone would you help people de coat how the justices questions and how effectively the Solicitor Generals Office is answering them . Have a hard thing about this case, that we hadnt gotten to yet in this discussion, was can you search or sees intangible things. We typically think that the Fourth Amendment or at least that portman had been thinking protecting these places. Places that can be searched. Persons that can be ceased here we are talking about conversations, the court had just been developing this doctrine of whether you could seize out of the air, these words, these conversations. And whether, the question was if you could seize these things, how do you determine whether they have been seized, how the privacy right is, how the right is of those intangible things that was a conversation that was going on between the lawyer, Justice White Justice White was the justice that Justice Gorsuch corked for when he was a law clerk on the Supreme Court interesting to see how this plays out, bayern white of course was a famous Football Player he sat in for the decade before he came to the Supreme Court it was the buyer in white courthouse out there in Denver Colorado its a good connection between the two colorado justices and its interesting to hear justice right whether it was more evidence, there was a mere evidence rule dating back to the framing, which was designed to protect private diaries you could not search the mere evidence where i recorded my diary that i committed a crime you could search contraband because it was not considered property, and it was forfeited to the state. This was overturned soon after katz, and reducing the privacy for a 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, and he was later appointed as the Federal District judge by george h. W. Bush. But Justice White has no vocabulary for figuring out exactly how to do with it. That is why the government is saying, there is no property interest in this glass space phone booth we will return to phone calls, since we are topic talking about the topping of the phone booths. Tony from brooklyn is on the air. Good evening, i dont know a lot about law but my question is about the patriot act and how it affects the United States and the Fourth Amendment in general. Could you briefly explain to a layperson with the patriot act . Is the patriot act is a series of changes of law, enacted immediately after 9 11 in the weeks following it, it gave the government more counterterrorism authorities to conduct surveillance, among other things. I think the most relevant part of the patriot act was known as section 2 15, that modified an existing law. About Business Records, it changed a lot to be about specific sets of Business Records and how the government could obtain them, through an order from the foreign intelligence court, and expanded that to essentially anything that was covered by a typical subpoena. The reason why this is relevant and in katz, it is relevant, here a following case determined that phone records, the dialing information of a phone call, is not covered by the Fourth Amendment because there is no reasonable expectation of privacy under the katz information you give to a third party. Section 2 15 was utilized most famously by the government, to obtain substantially all of the phone calls that took place here in the u. S. In the post 9 11 era under first the president ial authorized program, that we now know as the stella wind program and then later under section 2 15 the patriot act their . Decision. The decision came down on december 18th, 1967 and it was a seven one decision in favor of cats katz. The chief justice of course, and the majority, written by Peter Stewart, and joined by joined by warren, william douglas, john harlan, brennan and portis. There were three concurrences. John Marshall Harland went separately, as did douglas and byron white with one dissent, hugo black. Once it is recognized that the Fourth Amendment protects people and not the areas against unreasonable searches and seizures, it becomes clear that the amendment cannot be turned upon the presence or absence of a physical intrusion into any given enclosure. You were telling us earlier that there is a back story there, about alliances on that. Explain how we have three concurrence in this, and how people decided to join in the majority opinion this back story is an account by peter wynne there was an initial split after, 44. This would have affirmed lower court. But two weeks later, Justice Stewart changed his mind and joined the justices voting to reverse the circulated a draft opinion this was a memorandum. It was transcribed by professor tribe, Justice Stewart was influenced by the wiretap act which was being debated in congress at the time, he was also influenced by the recent decision in the burger case. Once Justice Stewart changed his mind, others fell into place justices white and holland, which left justice black as the sole dissenter. We will try paul from white river junction, vermont. Can you hear me . Yes, we can. This is a great series, i appreciate it. Three years after katz, in 1970, i was a graduate counselor at pence Tate University and the Police Budget was increased from 100,000 dollars to 1 Million Dollars a year. 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 with cats of applied to that . Suppose i had been accused of fomenting revolution. Would katz have protected me . Yes, it would have, we do have an expectation of privacy that our private conversations are not being picked up by. That our conversations are not being picked up by technology that nobody has heard of before. Cuttingedge technology is used to in that case, invade the privacy of the home, then a warrant was presumptively required. The johns case were suggested. That you might have an Expert Mission of privacy against cutting edge technology. In the end, the government is limited by state and federal laws, but the expectation of privacy test would have protected them against the laser beam. Susan james comer from massachusetts. You are on. Caller i just wanted to say, when Justice Stewart wrote the opinion of the court, he took issue with the way the questions were formulated on a, whether a telephone booth is a constitutionally protected area, and b, whether that is necessary [indiscernible] he added a couple of words in there, one was in place of rights of privacy, he added a persons general right. Anyway, i had forgotten. Susan thank you. Guest the court was very careful to say look, were not talking about the right of privacy, we are talking about the phone booth. When he closes the door, he creates a space. It is true that the Fourth Amendment protects people, but not places and we had but a general right of privacy, the right to be left alone, that has been discussed in the dissent, applies to states. Just like the life and liberty of a person are protected by state laws. It is important to remember that katz opinion did not write this. It was exclusively the holland concurrence which laid out the aspect of privacy and the idea that it relied on subjective component and a subject if objective component. The two components matter. It was a wellcrafted opinion that was able to bring together these two members of the court. Susan heres a little of the text of the holland opinion. I join the opinion of the court. But an enclosed telephone booth is an area that a person has a constitutionally protected reasonable expectation of privacy. B, that electronic as well as physical intrusion into a place that is in the sense private, may constitute a violation of the Fourth Amendment. Why is this a violation . Because it gives us a twopart test. Lawyers have that. That society is expected to see it as a reasonable protection of embassy, it was there for the lower parts to apply. But who knows what someones subjective expectation of privacy is . In katz, he closed the phone with behind them. But people might have different expectations of privacy in other cases. More importantly, what expectations of privacy are reasonable . There is a study that was done where a professor asked college students, and he found that there was no correlation between what the respondents of the service saidthey expected in regards to privacy. There is a kind of, lets make it up quality to the application of the harland test. Furthermore, it is circular to what we have discussed, Justice Harlan himself seemed to have concerns about the test. He embraced them more by saying, how much privacy should people in the free society be entitled to demand . That was a far more robust test, but the majority of the court has not accepted it. Susan here is a brief excerpt. Justice black wrote [reading] i am thinking about that hole in the [laughter] guest justice lack was fighting a noble battle. He also dissented in the greenwald case. Although he was a liberal originalist and texture list, the current originalist or disagreed with him. There was a Great Exchange between Justice Scalia and Justice Alito in the case, scalia thought that the framers did not think about gps devices. Scalia said yes, but there was an analog. And alito says, these devices would have to be small. You have them agreeing that the Fourth Amendment up guys, but not for the same reason. Justice black toward the end of the career was being very rigid about it. He was not able to see conversations for their digital effects, and for that reason it was noble, but not in the end, a very influential dissent. Susan december 19, 1967, here are the headlines on the decision in this case. The Supreme Court will set bugging is subject to legal safeguards, that from the l. A. Times. How significant, we look at these as landmark cases, how significant wasnt sorry, was it seen in society at the time . I was a big deal because a change that law, and changed it in the weather was important. Because at that point, these devices are just becoming into vogue among it wasnt your of surveillance. It has been around for a while, but this is an important way that the government found evidence. A way to obtain criminal evidence by the government, and also National Security evidence. On terrorists and operatives and the like. And apparently the muslim government officials, or campaign officials, as we have learned in the last few months and years apparently, as you have just seen. So this is an important case, even at the time. But i dont think anybody realized how transformative it would be, and how much it would influence our law, even 45 years later. We are here today and having the same conversation, 50 years later, and a the same exact conversation. What does katz beat in this context . What do we look for . Do we look to the subjective test, looks to the framers and what they thought . Do we look to what the law of the state . The jurisdiction in which it is happening . Do we look what modern law said . The law of the state . Susan we had a lawyer today telling the story of what happened when he learned the decision. But first, here is a caller from new hampshire. Caller thank you for taking my call. At the uniting amendment. Com, the crowd sourced constitutional amendment, privacy is on of the things we struggle with trying to figure out. We have made quite a bit of progress. Privacy is an instinct, something that evolved through nature. What it comes down to, is not places and people, it comes down to information. It is a lot of information around if you think about it in terms of information, it is easier to get around it. At the time the Fourth Amendment was written, paper was the only way that information could get stored. So if the justices could think of it that way, in terms of paper and information, i think it would be useful for them to extrapolate what the right really means. The problem is that one that instinct is manifest in a culture, the way it manifests varies from culture to culture. So standards have to be established, which is rather common law comes in, establishing our standards. Susan thank you for that. I will add what more related comment. This is a tweet. [reading item] for those viewers, what would you say . Those are important comments, and the framers do believe that we have natural rights to come from god or nature, not from governments. 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 through pamphlets. So the first caller is right. He did not focus on technology, the framers, they thought of paper. So that has to be translated into a digital age. It is interesting that your crowdsourcing amendment project is trained to come up with ways to make that clear. I would ask students, how do you amend the Fourth Amendment to apply to Digital Technology . Often, people suggest adding the word digital, the right to be secure in our digital effects, such as ours of phone records and our gps movements, those of be explicitly protected . And of course, justice black had his concerns. Wiretapping is a modern analog, to eavesdropping. Eavesdropping was well known, and were meant to be protected against it. But the framers did not say so. They said persons, houses, papers and effects. So, they did not need to. So this very much that question of, do you look at just the words, or what they were trying to protect as an intellectual matter . Was it about protecting what is in your brain and how you translate the things on your aprons, or the things you carry around with you . There were debates in that era, and there are debates in the modern era. Do you solve that by saying that the modern paper is the iphone, and that is your solution . Or do you come up with a different theory. Susan our next caller says on twitter [reading] lets hear from harvey snyder, charles katzs lawyer up on hearing the Supreme Court decision. I think the decision was in december, between october and december, two or three months, we had to wait. Then you get it in the mail, you get the decision from the court, which 71, we won. It was exhilarating. The very next case that i had when i returned from arguing before the Supreme Court was representing a guy who had a traffic ticket in inglewood, california. Going from the heights, to the depths. Susan how human is that clip . At that law review many years later, he added a postscript in his decision of the case. This is what he wrote. [reading] we are going to spend our last 15 minutes talking about the consequences of katz and its long tail. Weve done that already. Let us listen to jimmy in athens, georgia. You are on the air. Caller yes, i am glad that they did increase the freedoms we have with this decision, the one thing they did not mention was the right to gamble. Has there ever been a case which said hey, that law should have been unconstitutional, because people have the right to gamble . Thank you. Guest that is really interesting. You could absolutely ban things that were against public morals under the old date laws, from gambling to cockfighting. But Justice Kennedys decision recognizing the right of autonomy, a right to define your own conception of the mystery of human life, could we theoretically extended to protecting the right to gamble. But i am confident in saying that the court has not yet extended the right of autonomy to include the right to gamble. Susan so, katz, he was never heard from again. He was faded from the history books, after giving his name to this case and pursuing it, which give us an extended right to privacy. But, society reacted to it. I want to talk a bit about that, here is a New York Times story in a december 20, 1967. Bugging in Supreme Courts ruling may reduce state laws allowing eavesdropping. How did the states respond and how did Congress Respond to this ruling . Congress passed title iii, the omnibus crime and control act of 1968 which provided a worked procedure for wire taps. The law has been modified over time, but congress reacted by legalizing wiretaps for specified crimes. That remains the law today and has been expended and modified overtimes. To give Different Levels of requirements, including 1986, amendments to include Electronic Communications. To provide protections for Electronic Communications some would say, low protections. There has been debate on whether in is to be updated for the modern era. Then, obviously, the laws we see being applied today in the cell phone cases, and these metadata cases. Which permit access to noncontent records. There is a big debate in the policy space before the courts, as to whether that is an appropriate stand, or whether there is more required in records such as location, which could track you days and weeks on end. Susan here are some of the key cases that came after. In 1972, the omnibus crime bill was challenged by the nixon administration. In 2001, kylo versus the u. S. And in 2012, usb verses jones and in 2018, carpenter vs u. S. , which will be decided on the tracking of telephone positions carpenter versus the u. S. What do we need to know about these cases . Each as an attempt to translate the lessons of katz in light of new technologies. There could be a National Security exception to the Fourth Amendment, and if there is a real threat to National Security, maybe you can have lower standards, but generally, you need a werent to get records. The kyllo case was about thermal imaging which could measure the presence of someone through heat in her house. The defendant was growing marijuana in the case. The other case, jones and the carpenter case, which could be the most important Digital Privacy case in the 21st century, involves the question, can police walk down the street with our cell phones admitting our geo locations, can the police use this data . Do we have a expectation of privacy with those records. In the government, said no. The reason the carpenter case is so important, because it could be the most important privacy case of the 24 century. But just as he was focused on our property interest and the digital records, and Justice Sotomayor, in the privacy expectations we have that the government is likely tracking arguments for five months. And seeing the people we associate with and rallies we attend, and so forth. If, whats accepting about carpenter, its an opportunity for the court to do what he did in katz and transit the amendment with a theory that is spaced, not in existing case law, but requires them to take an additional step, and they may do so for different reasons, but its exciting to see justice on both sides, converging around that production. What would you say about that list . And would you add some others to it. I think keith is a privileged case, and whats near and dear to my heart because i teach National Security. Keith is named kate because, u. S. Court filed a position a monday must petition to the District Court to require the judge to do something, and it does what the surveillance of someone who was trying to block the local cfo, and an arbor michigan whos trying to blow the office up. Was this a dismasted security . Is our National Security case . The whole case decided, actually, in favor of the government, that there was domestic security in the of in the case of National Security, it may not get a warrant. They just sort of wind it is over not reasonable so for the amendment, its an interesting doctrine because this one has developed the cases through their servants, act it was built on the debt you dont need a fourth admit warrant, but something close to, but not a fourth minute word. Its a question, i think keith is really important at least to the National Security conscious for that purpose. Christine is watching us, and in new jersey. Hi, christiane. Hello. My question is about expectation of privacy, and whether the ball will be lowered as the younger people have less of an expectation that we do. I was born in the middle of a baby boom in 55, and 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, there is no such thing as privacy so, if people in their thirties and younger feel that those nor expectation of privacy, then where does the bar stand for whats reasonable . Thank you its a crucial question as you suggest, if you have a test which is based on subjective expectations, if privacy goes down, then some of the protections now, its not sure it will have no expectations of privacy. The privacy researchers does some interesting studies, just assisting millennials have different expectations than people of our generation do and they may be well willing to avail themselves on facebook, but also not so willing to do that. We cant have the show to know that the facebook hearings tomorrow, and we are having a National Conversation and i think its 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 which suggests the protections might be diminished as well, and that reaffirms Justice Sotomayor caution that we really need to reconsider that subjective expectation. As importance as katz was, its not adequate for protecting privacy in the age of facebook, and it would be very interesting to see what congress, as well as the courts, come up with next. I think jeff is right, and i think the big question now is whether, you know, there is some irritable mom of privacy that has to survive even after you look at the subjective expectation of an individual, and the objective use of society, 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 some type of surveillance based on the views of the trinity at the time. This is an interesting debate that i think we will see play out here, interview mentioned, they had some stuff in the university of chicago law review high, stephen. Hi. I had a comment that i wish you would advertised this series more, so more people get watch it and understand that the courts have a legitimate role in making more law which apparently have the country does not understand. But my question is also a quick one. Is there any agreement as to what is an object to have evidentiary standard for what society will accept a reasonable . Is it state law, or court decisions, or Public Opinion polls, or is there anything anything, because otherwise, the objective standard becomes a chance to make sure that, like a subject of standard, a shiny story in front of the court. I dont think that such a shaggy dog, anyway, thank you. Its funny, justices toured who wrote the majority opinion in this case, of course, is also the one who, in oregon set about pornography, i know when i see it in a lot of ways, the standard, i think jeff would agree with me, that there is no test for what is objectively determined in societal expect other than what the court says at the time that he says society is ready to expect we have seen the court when it comes to the cruel and unusual punishment, to talk about what the states are doing, a sort of taking a look at what the states and even what foreign jurisdictions are doing. There is a lot of disagreements about whether or not to be doing that, lets least one where the courts try 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 and whether that is appropriate methodology for constitutional adjudication. But what you think jeff . You are right, jeff, and 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, jill locational privacy before congress has. Theres been a bill pending in congress that has a law regulating that policy, and it hasnt passed enough and states havent passed that either, to give the Court Guidance which makes the whole enterprise frustratingly inaudible and makes regionalist look to property standards, Justice Alito said look to state based trespass rules to try to identify something objective. This is what justice black was upset about. To give him his due, he was right that there is something mushy at shaggy dog like about this reasonableness standard, and i think both sides are recognizing that its not satisfactory historical question from a viewer on twitter, asking, do you feel that earl or an expanded civil rights because he felt guilty about the denial of japanese rights during world war ii when it was governor of california . And im going to d. C. To see further detail, especially to blacks. Do you know anything about his writings or cometary about the motivation . We know that he was very upset at the end of his life about his role in the japanese internment, and in his autobiography, revising it, he expressed regret for his role, and he wept. However, earl warren was not soft on crime contrary to popular conception of the war in court, and those banners, he sided with Law Enforcement frequently, he was a former prosecutor, and did not view this case as one that was going to afford Law Enforcement. He thought the police could get a word so, i think, the answer is, although he was regretful about his role in the japanese internment cases, it did not influence his views in these crisis. George and pittsburgh, you are on landmark cases welcome. Hello, thank you, i was wondering how these decisions may apply to non Government Entities during the surveillance and recently we had a lot of talk about facebook and other types of organizations doing that sort of thing. You are asking it on a very important week, as we noted tomorrow and wednesday, as youre watching this live, marks the cupboard before Congress Answering lots of questions about privacy. The challenge is, you know, a lot of us use gmail, a lot of us use facebook, twitter, you name it. We voluntarily give to these companies our data, and a lot of access to our data. I mean, i dont know about you, but when a few years ago, when i was on gmail, if i was looking at an email about the bahamas, i would get an ad for a bahamas trip. You know . I knew sorted instinctively that they were they may not have it in my email but they were going through, identifying words of pushing the ads on that base, and so, the question is, what does that do to your privacy . At least as against google, right . You have, one you know, and i use argument, right . Youve given youve agreed they are giving you this free account that you want because everybody has one facebook is giving us great access to all your friends, you know what they are doing and not paying a penny for an obvious, but the trade, as you give them all your information, but maybe you dont want it in the hands of cambridge, or used to send your political messages, and what you agreed to do, so, whats the balance here . Does congress have to intervene, and get in the game . Busy ftc need to regulate it . As jeff points out, laws are hard to change. They are sticky, technology is moving at such a rapid rate. Its hard to imagine the government which is about a Technology Keeping up and its laws and regulation with modern technology, stifling innovation. Thats it, its a big debate. We have a couple minutes, and i want to bring this all together. So, as you talked about this, its evolving on so many different tracks at the same time. First of all, we have increased threats to this nation, both foreign and Domestic Technology is moving at the speed of light, and devices are coming in that we cannot even imagine two years ago. Along the software. We have the commercial sphere as well. So, 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 to the protections of the amendment, so we have the same amount of privacy in the age of wires and cellphones at facebook as we did at the time of the framing. As they said, the amendment says Congress Shall make no law, it isnt st. Marks correctional make no law, but its not enough to say that simply because we signed a user agreement, then we have no privacy, and the challenge theres not an easy answer, but i think that congress and citizens, and regulators in the federal trade commission, but ultimately we, the people, have to be as creative as those justices were, and as harvey shutter was, the here of our show tonight, so, thank you judge schneider revving challenge the court to transit the amendment in light of these new technologies, thats all of us have to do now that our privacy is being threatened, not only by the government, byebye private actors. Closing comments to you, the adoring nature of katz, what would you say about it . Its certainly unprecedented. It surfaces every debate about the Fourth Amendment and our government surveillance, whether National Security contacts or the contacts today, its very much alive topic, both in our political bodies, in the legislator frankly, between the legislative banks and the executive brings in recent weeks and, months and the court. And present day, will things change, inevitably, the court will to get more cases, and will of all of. Will we katz be forgotten . I highly doubted. We are about halfway through our series. If you have been watching with, us and each one of these programs we have said thank you to the National Constitution center. Tonights my opportunity to do that with the president of the National Constitution center sitting right here, so, thanks to you and your team for all of the help youve given us in the series. Thank you for this wonderful collaboration, and educating americans at the u. S. Constitution. Thats it for our program tonight. Thank you for being with us