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 ForeignRelations 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 di