Abstract
The Court’s Katz opinion notwithstanding, informational privacy is on life support, not only in everyday life but also in constitutional law. “You have zero privacy anyway,” Scott McNealy, CEO of Sun Microsystems, remarked in 1999, “get used to it.” McNealy overstates the case—but his exaggeration is well worth bearing in mind. In the years following McNealy’s comment, it was revealed that the federal government embarked on a program, code-named Operation Stellarwind, which monitored without warrant millions of messages sent overseas. Even after Congress placed limits on this, the federal government continued to monitor—in most cases, subject to statutory authorization—the phone numbers people dial and the email addresses to which they send messages. Late twentieth-century Supreme Court decisions permitted this (though no decision permitted Stellarwind’s practices). As far as constitutional protection for informational privacy is concerned, then, the central question is whether the Court will build on the foundation established in Katz v. United States to protect individuals from the sophisticated technology the government now employs to monitor behavior. The Court must do so while mindful of the genuine threat posed by terrorist organizations. Recently decided cases indicate that a majority of the Court is aware of the need to strike a balance between the public’s interest in national security and each individual’s interest in informational privacy. The chapter outlines a forbearance model of protection for informational privacy that will make it possible to strike this delicate balance.
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Notes
- 1.
As quoted in Polly Sprenger, “Sun on Privacy: ‘Get Over It,’” Wired, January 26, 1999, available at www.archived.wired.com/politics/law/news/1999/01/17538.
- 2.
For discussion of Orwell’s dystopia, see supra Chapter 10, notes 7–8 and accompanying text.
- 3.
James Risen and Eric Lichtblau, “Bush Lets U.S. Spy on Callers Without Courts,” The New York Times, December 16, 2005 A1.
- 4.
The new statute, which amended portions of FISA, was called “The Protect America Act of 2007.” See 121 Stat. 552 (2007).
- 5.
For a summary of Snowden’s disclosures, see “NSA Files: Decoded,” available at www.theguardian.com/us-news/the-nsa-files.
- 6.
Jeremy Bentham introduced this term in endorsing the idea of an all-seeing surveillance system for prison inmates. See his Panopticon, Or the Inspection House (1791).
- 7.
For a case in which a federal court upheld an inmate’s privacy claim against a corrections officer’s search, see United States v. Hinckley, 672 F. 2d 115, 129 (D.C. Cir. 1982).
- 8.
For discussion of this, see supra Chapter 10, note 32 and accompanying text.
- 9.
- 10.
This survey is informed by the discussion of surveillance technology in Michael Fromkin, “The Death of Privacy?” 52 Stanford Law Review 1461, 1476–501 (2000).
- 11.
For discussion of early wiretapping efforts, see Samuel Dash, The Eavesdroppers 23–4 (1959).
- 12.
Katz v. United States, 389 U.S. 347, 352 (1967).
- 13.
United States v. Miller, 425 U.S. 435, 443 (1975).
- 14.
Smith v. Maryland, 442 U.S. 735, 744 (1979).
- 15.
United States v. Ciraolo, 476 U.S. 207 (1986) (aerial overflight by plane from one thousand feet); Florida v. Riley, 488 U.S. 445 (1989) (aerial overflight by helicopter from 400 feet).
- 16.
California v. Greenwood, 486 U.S. 35 (1986).
- 17.
442 U.S. 735 (1979).
- 18.
115 Stat. 272 (2001).
- 19.
For discussion of Stellarwind’s origins and also of the name change to Terrorism Surveillance Program, see Charlie Savage, Power Wars: Inside Obama’s Post-9/11 Presidency 180–96 (2015).
- 20.
FISA distinguishes between “United States persons” (citizens, aliens admitted for purposes of residence, and some other categories) and those who are not United States persons. See 50 U.S.C. 1801 (i). In avoiding this technical term, I somewhat simplify matters, but I don’t distort the overall significance of the Stellarwind order.
- 21.
The leading case is United States v. United States District Court, 407 U.S. 297 (1972), which rejected the government’s contention that it possesses inherent authority under the Constitution to conduct warrantless electronic surveillance within the United States for national security purposes.
- 22.
Savage writes: “That Stellarwind violated FISA was well understood.” See Savage, Power Wars, supra note 19, at 185.
- 23.
Letter of William Moschella, Assistant Attorney General, to the Chairmen and Ranking Members of the House and Senate Intelligence Committees, December 22, 2005, available at www.justice.gov/sites/default/files/ag/legacy/2007/01/11/surveillance6.pdf.
- 24.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952) (Frankfurter, J., concurring).
- 25.
Florida v. Jimeno, 500 U.S. 248, 250 (1991).
- 26.
For discussion of the differences between the Bush and Obama administrations with regard to surveillance, see Savage note 19 supra, at 560–1.
- 27.
Numerous statutes authorize issuance of national security letters (and accompanying gag orders). For a summary of current law, see Charles Doyle, “National Security Letters in Foreign Intelligence Investigations: Legal Backgrounds,” available at www.fas.org/sgp/crs/intel/RL33320.pdf.
- 28.
See Savage, Power Wars, supra note 19, at 564.
- 29.
Id.
- 30.
133 S.Ct. 1138 (2013).
- 31.
The Clapper Court stated that parties other than the plaintiffs in the case might have standing to challenge FISA-based searches: “[I]f the Government intends to use or disclose information obtained or derived from an 1881a acquisition [i.e., an acquisition pursuant to FISA] in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition” (Id. 1154). But when criminal defendants sought to avail themselves of this possibility in subsequent cases, lawyers from the Justice Department declined to reveal whether a FISA-based search had led to discovery of the evidence against them. See Savage, Power Wars, supra note 19, at 587.
- 32.
For examples of judicial oversight, see Savage, Power Wars, supra note 19, at 564–6.
- 33.
For examples of legislative oversight of executive branch surveillance agencies, see id. 579 and 582.
- 34.
United States v. Jones, 132 S.Ct. 945, 957 (2012) (Sotomayor, J., concurring) (citing Smith v. Maryland, 442 U.S. 735 (1979)).
- 35.
Id. 957.
- 36.
In Babbitt, Sinclair Lewis remarks that “he played poker close to the chest.” [1922] 48 (Signet Books, 1961). Lewis appears to assume that other players could, consistently with the rules, discover the cards someone has if he fails to keep his cards close to his chest.
- 37.
See Mike Freeman, “Pro Football: Inside the NFL; Some Coaches Reading Lips to Steal Plays,” The New York Times, October 28, 2001. No football professsional interviewed for Freeman’s story questioned the propriety of lip-reading. Jim Fassel, coach of the New York Giants at the time, remarked: “There have been rumors of this happening. But if someone can pull it off, more power to them, because it seems extremely hard to do.”
- 38.
See Executive Order 13526 (2009) for guidance as to the use of these terms.
- 39.
The United States Code relies on the concept of trade secrets in criminalizing certain acts that acquire the information from a company. See 18 U.S.C. 1832 (“Theft of Trade Secrets”).
- 40.
The Court first recognized a government state secrets privilege in United States v. Reynolds, 345 U.S. 1 (1953).
- 41.
Kyllo v. United States, 533 U.S. 27, 34 (2001).
- 42.
Anthony Amsterdam, “Perspectives on the Fourth Amendment,” 58 Minnesota Law Review 349, 403 (1974).
- 43.
Lior Strahilevitz and Matthew Kugler, “Surveillance Duration Doesn’t Affect Privacy Expectations: An Empirical Test of the Mosaic Theory,” 2016 Supreme Court Review – (in typescript at 12–13). For another proposal that relies on public opinion surveys to determine reasonable expectations of privacy, see Christopher Slobogin and Joseph Schumacher, “Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at ‘Understandings Recognized and Permitted by Society,’” 42 Duke Law Journal 727 (1993).
- 44.
Minnesota v. Olson, 495 U.S. 91 (1990).
- 45.
Bond v. United States, 529 U.S. 334, 338–9 (2000).
- 46.
See supra note 14 and accompanying text.
- 47.
- 48.
Cases that rely on the concept of corporate privacy include Donovan v. Dewey, 452 U.S. 594 (1981) (administrative search of premises), and Dow Chemical Company v. United States, 476 U.S. 227 (1986) (aerial overflight of factory to check on compliance with environmental regulations). The latter claims to draw on Katz, but the citation is manifestly inapposite since it was clear when the government airplane flew over Dow’s factory that nothing related to the autonomous conduct of personal life was being inspected.
- 49.
116 U.S. 616, 630 (1886).
- 50.
For analysis of NSA’s procedures in light of this terminology see President’s Review Group on Intelligence and Communications Technologies, Liberty and Security in a Changing World 102–3 (2013).
- 51.
The progression is discernible in the diminution of privacy interests for an arrestee by comparison with someone subject to a forcible stop. Compare United States v. Robinson, 414 U.S. 218 (1973) (arresting officer may examine the contents of an arrestee’s pockets even if there is no reasonable basis to fear that these pose a risk to the officer) with Terry v. Ohio, 392 U.S. 1 (1968) (officer conducting a forcible stop may search the contents of the stoppee’s pockets only if she has reasonable basis to fear that the contents pose a risk to her safety).
- 52.
See, e.g., the October 2011 findings of Judge Bates (of the FISA Court), discussed in Savage, Power Wars, supra note 19, at 572.
- 53.
United States v. Jones, 132 S.Ct. 945, 949 (2012).
- 54.
Id. 956–7 (Sotomayor, J., concurring).
- 55.
Id. 957–8 (Alito, J., concurring in the judgment).
- 56.
Id. 964. This criterion makes it possible to distinguish the surveillance undertaken in Jones from that undertaken in Knotts v. United States, 460 U.S. 276 (1983). In Knotts, the Court followed Katz’s knowing-exposure-to-the-public criterion in holding that a person’s privacy interests are not infringed if government agents follow his car (by means of a beeper properly implanted in an object he had acquired) over an open road.
- 57.
Kyllo v. United States, 533 U.S. 27 (2001).
- 58.
Riley v. California, 134 S.Ct. 2473, 2489 (2014).
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Heffernan, W.C. (2016). Chapter 11: Informational Privacy Imperiled: Protecting Core Elements of Personal Control while Insuring Public Safety. In: Privacy and the American Constitution. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-43135-2_12
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