We know that from the kilo case where Justice Scalia said when cuttingedge technology is used in that case to 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 cuttingedge 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 against the laser beam. James, welcome to landmark cases. Youre on. Hi. When Justice Stewart delivered the opinion in court he took issue with the way the petitioner act tomorrow lated the questions which included a, whether a public telephone booth was a publicly protected area and physical penetration was necessary before search and seizure could be said were violations to the Fourth Amendment to the United States constitution. He added a couple of words in there. One was in place of right to privacy. He added, but the detection of a persons general right. Anyway, thats what i have for that. Thank you very much. Kamil . The court was very careful with the majority and was careful to say were not opining on the general right to privacy. Were specifically talking about the phone booth and if he closes the door and creates a space that while its true the Fourth Amendment protects people and not places, the brand of the right to privacy in the famous dissent was to be protected in the first instance by states just like the life of a person and the liberty of a person presented by state law and so the stewart opinion was narrow and its important to remember that katz was never cited for the opinion and it was cited for the concurrence which was for the right to privacy and the idea that that was made up of two components, a subjective component. I believe i have an expectation of privacy in the space and the objective component that societiy society is expecting privacy in that space. The harlem opinion is the been that matters. While stewart wrote a wellcrafted opinion and one that was able to bring together the Seven Members of the court, ultimately, it didnt matter because the harlem opinion is all they care about. Heres the text of the harlan opinion. I join the opinion of the court which i read to hold only at that an enclosed telephone booth is an area where a person has a constitutionally, protected reasonable expectation of privacy. It is in this sense private and my constitute a violation of the Fourth Amendment. Why is this so important . It gives us a twopart test. Lawyers love it. You have to have a subject of expectation of privacy that society was able to accept as reasonable and it was clear for lower courts to apply except that it wasnt because on the one hand who knows what one persons subjective expectation is and katz closed the phone booth behind him, but people may have different expectation of privacy. The court was never systematic about measuring what expectations of privacy actually are reasonable. There is a fascinating study by professor slobogan of vanderbilt. He was asked what is your expectation of privacy and there was no expectation, email privacy or privacy of not having their diaries read and theres a kind of lets make it up quality to the application of the harlan test and furthermore its circular for the reasons we discussed because its possible for the government to lower expectations merely by increasing surveillance, just as harlan himself seemed to have second thoughts about the test. In the white case he embraced the normative testing. How much privacy should people in a free society be entitled to demand and that was a far more robust test, but the majority of the court has not accepted it. Here is a brief excerpt. He wrote tapping telephone wires was, of course, an unknown possibility at the time the Fourth Amendment was adopted. No general right was created by the amendment so as to give this court Unlimited Power to hold unconstitutional anything that affects privacy. Im thinking the hole in the pillow for the text of the constitution. Is there anything long lasting about justice blacks dissent in this days . Justice black was fighting a noble battle. He dissented also in the griswald case which you already discussed and making up privacy rights. In the end although he was an originalist and textualist and the oral argument in the jones dps case. Alito said they didnt think about gps devices. Scalia said yes, there is an analog a tiny constable hiding under the carriage and eavesdropping. You need a thousand constables to get a gps device and ought to be very large constables and here you have these two justices agreeing that the Fourth Amendment applied and justice black there was toward the end of his career and he wasnt able to see conversations as Digital Effects and for that reason wrote noble, but not in the end very influential dissent. Lets look at a couple of headlines from december 19, 1967, of the decision in this case. The Los Angeles Times headline. Supreme court rules bugging is subject to legal safeguards. In the New York Times high court eases curbs on bugging and insists police must obtain warrant to acts and doesnt forbid eavesdropping. We 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 the way it was important because at that point these devices were just coming into vogue. This was the new era of electronic surveillance and theyd been around for a while and this is an important way and we know in the modernier a it is the principle way in which the government is able to obtain criminal evidence and in the case of mass security cases and mass security evidence and operatives and the like, and apparently famously government officials or Campaign Officials as weve learned in the last few months and years has generated a tremendous amount of debate within the executive branch in the last few months alone. So you know, this was 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 and were having the same 50 years later and almost the 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 the subjective test and the second part. Do we look to the framers and what they thought . Do we look toward what modern law says and the law of the state and 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 we will hear from the young lawyer Harvey Schneider today telling the story what happened when he learned the decision. First lets hear from ron in new hampshire. Hi, ron. Hi. Thank you for taking the call. At the uniting amendment. Com, privacy is one of the things that we struggle with trying to figure out and weve made quite a bit of progress, actually. Privacy is an instinct. Its something that evolved through nature and what it comes down to is not places and people. It comes down to information. You think of it in terms of information its a lot easier to get your hands around. The Fourth Amendment mentions paper. Paper was the only way that information could be stored and the justices think of it that way and paper was information and it would be easier for them to extrapolate what the right really means. The problem is that when that instinct is manifest in a culture and the way it manifests from culture to culture so standards have to be established and thats where the common law comes in is establishing a standard. This is a tweet from wild and wonderful as to the seizure on intangible things, particularly words and we should remember that founders had gained independence from a country that would put unconvicted persons to the rack and perhaps they did envision intangibles. For those two viewers, what would you say . They were both very important comments and the framers believe we have certain natural rights that come from god or nature and not from government and those include a cognitive liberty and our thoughts and we know that because of the great battles of the revolution were made anonymous pamphlets. The framers focused on technology and where people recorded their private thoughts and diaries. It is so interesting that your crowdsourcing amendment project is trying to come up with ways of making that clear in the amendment and id love to ask students how would you amend the Fourth Amendment to make clear its application to Digital Technology and people would suggest adding the word digital and the right to be secure in our Digital Effects and our cell phone records and our geolocation movements would be explicitly protected. Justice black said it wasnt like wiretapping was unknown at the framing and it was a modern analog to eavesdropping. Eavesdropping was well known at the framing if theyd meant to protect against eavesdropping and they would have said so. They said, you know, persons, houses and they didnt mean to. This question of are you trying to look at the words and are they trying to protect as an intellectual matter. Is it about protecting what is in your brain or the things you carry around with you . And there were debates at that area of the court and there are debates in the modern era of the court and do you solve that by saying, well, the modern era is the iphone and thats your solution or do you come up with a different theory of the world. David Vincent Greco watching us on twitter. Was the court in a way essentially sending a message to ma bell who telephonized Service Equipment at the time and actually facilitated the search. Lets hear from Harvey Schneider, charlie katzs lawyer upon hearing about the Supreme Courts decision. I think the decision was december. So there was about between october and december, thats two or three months and you just wait and then you get in the mail, you get the decision from the court which 7 to 1 we won and exhilarating and the very next case that i had when i returned from arguing before the Supreme Court was representing a guy with a traffic ticket in inglewood, california. Thats going from the heights to the depths. How human is that clip . In the mcgeorge law review many years later mr. Schniert also added a postscript in his description of the case, this is what he wrote and there is a postscript to katz which is demonstrative and he informed katz of the historic decision which 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, but lets listen to jimmy in athen, georgia. Hi, jimmy. Youre on the air. Jimmy in athens . Yes . There you go, sir. Youre on the air. Im glad that 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 that law should have been unconstitutional because people have the right to gamble . Thank you. Thats really interesting. You could ban things that were in public morals ranging from gambling to cockfighting which was deemed to lower public moral, but Justice Kennedys decision recognizing the right to autonomy and the mist reef human life could theoretically be extended to protect the right to gamble. The court has not yet extended the right to autonomy to include the right to gamble. On to katzs legacy. Charles katz, basically never heard from again. Hes 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, and i want to talk a little bit about that. Heres a New York Times story of 1967. New tack in bugging. State laws allowing eavesdropping. How did states respond and how did Congress Respond to this ruling . Also Congress Passed title three. The omni bus crime and control act of 1968 which provided a warrant procedure for wiretaps. They created a set of predicate apps and that law has been modified over time, but congress reacted by legalizing wiretaps for specified crimes and that was allowed to stay with us. Its been expanded and modified over time to give access to different types of data and levels of requirement including the 1986 amendments to address Electronic Communications and some would say inappropriately low protections today and the big debate about it was called and needed to be updated for the modern era and the laws now seeing applied today to the cell phone cases and the meta data cases which permit access to noncontent records for less than a warrant and there is a big debate in the policy space as well as before the courts as to whether thats an appropriate standard and whether an award will be required for the noncontent records where its about your location and it can track you for days, weeks 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 19724 iss the nixon administn came out with a challenge with the u. S. Versus district court, and kylio versus u. S. And carpenter versus u. S. Which will be decided later this year on the tracking of cell phone positions with the towers. Whats 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 and if there is a real threat to National Security maybe you could have lower standards and generally you do need a warrant to get records. The kylio case involves thermal imaging that measures the heat in the outside of the house and the guy growing marijuana with heat lamps Justice Scalia said was protected because the technology could reveal intimate details and the lady of the house was taking her daily sauna or cash and it was physically affixed to the bottom of the car and sees the car with the gps device. It could be the most important Digital Privacy case in the 21st century because it involves the case and we walk down the street with our cell phones and emitting geolocation, and it has 127 days for five months and the question is do we have an expectation of privacy in those records that weve emitted. The government said though, we were invoking the thirdparty doctrine with katz. At the oral argument, Justice Gorsuch was focussed on the the property interest in the digital records and Justice Sotomayor of the government expectations that the government will not be tracking our movements for five months and seeing what we have and so forth. Whats exciting about carpenter, its an opportunity for the court to do what it did in katz and to 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 reason, but it is exciting to see justices of both sides converging around that protection. What would you say about that list and would you add some others to it . Keith has a particular case that is near and dear to my heart. Keith is named keith because the u. S. District court has a mandamus petition to the court to require the judge to do something and it dealt with the surveillance of a gentleman who tried to blow out the local cia office, who knew there was an office in ann arbor, michigan. This was a Domestic National securi security case or an interNational Security case . This was in favor of the government and they should have gotten a warrant and its only known for its footnote that says we assume in cases of National Security they dont need a warrant. They dont decide it and they just assume it and in every court for National Security, you dont need warrants. This is an interesting doctrine because that what has developed the entire introis structure is built on the idea that you dont need a Fourth Amendment warrant, Something Like it, or Something Like a Fourth Amendment warrant, but not a Fourth Amendment warrant and keith is interesting for that purpose. Christine is watching us in somerset, new jersey. Hi, christine. Hello. My question is about expectations 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 55, and i talked to my niece who is a millennial of privacy and my expectations are very high and she laughs at me and says look, get over it. Theres no such thing as privacy. So if people in their 30s and younger feel that theres no expectation of privacy then where does the bar stand for whats reasonable . Thank you. Thats a crucial question, and as you suggested, if privacy expectations go down then so do the protections. Its not true that younger people have no expectations of privacy. Donna boyd, the privacy researcher has done some really interesting stud