Partisans on both sides claimed that the opinion of the other would have “changed” the meaning of the Constitution. But whose opinion, the Court’s or Justice Brandeis’s, would really “change” the meaning of the Fourth Amendment?
To answer this question, we must first ask: Change relative to what? What is the baseline against which this change is a change? Certainly Brandeis would have agreed that in 1791 any finding by the Court that the amendment reached beyond trespass would have been improper. But when something presupposed by the original amendment has changed, is it clear that the Court’s proper response is to act as if nothing has changed at all?
Brandeis’s method accounted for the changed presupposition. He offered a reading that changed the scope of the amendment in order to maintain the amendment’s protection of privacy. Taft, on the other hand, offered a reading that maintained the scope of the amendment but changed its protection of privacy. Each reading kept something constant; each also changed something. The question is: Which reading preserved what fidelity demands should be preserved?
We might better see the point through a somewhat stylized re-creation. Imagine that we could quantify privacy; we could thus describe the change in the quantity of privacy that any change in technology might bring. (Robert Post has given an absolutely persuasive argument about why privacy is not quantifiable, but my purposes here are simply illustrative[16].) Imagine that in 1791 protecting against physical trespass protected 90 percent of personal privacy. The government could still stand on the street and listen through open windows, but the invasion presented by that threat was small, all things considered. For the most part, a regime that protected against trespass also protected privacy.
When telephones came along, however, this protection changed. A lot of private information was put out across the phone lines. Now, if tapping was not trespass, much less of private life was protected from government snooping. Rather than 90 percent being protected by the amendment, only 50 percent was protected.
Brandeis wanted to read the amendment so that it protected the 90 percent it originally protected — even though doing so required that it protect against more than simple trespass. He wanted to read it differently, we could say, so that it protected the same.
This form of argument is common in our constitutional history, and it is central to the best in our constitutional tradition[17]. It is an argument that responds to changed circumstances by proposing a reading that neutralizes those changes and preserves an original meaning. It is an argument invoked by justices on both the right and the left[18], and it is a way to keep life in a constitutional provision — to make certain that changes in the world do not change the meaning of the Constitution’s text. It is an argument, we can say, that aims at translating the protections that the Fourth Amendment gave in 1791 into the same set of protections at any time later in our history. It acknowledges that to do this the Court may have to read the amendment differently, but it is not reading the amendment differently to improve the amendment or to add to its protections. It is reading the amendment differently to accommodate the changes in protection that have resulted from changes in technology. It is translation to preserve meaning.
If there is a justice who deserves cyberspace’s praise, if there is a Supreme Court opinion that should be the model for cyber activists in the future, if there is a first chapter in the fight to protect cyberspace, it is this justice, this opinion, and this case. Brandeis gave us a model for reading the Constitution to preserve its meaning, and its values, across time and context. It is a method that recognizes what has changed and accommodates that change to preserve something of what the framers originally gave us. It is a method that translates the Constitution’s meaning across fundamentally different contexts — whether they are as temporally distant as we are from the framers or as distant as cyberspace is from real space.
But it was Taft’s opinion that became law and his narrow view of the Fourth Amendment that prevailed. It took forty years for the Supreme Court to embrace Brandeis’s picture of the Fourth Amendment — 40 years before Olmstead was overruled. The case overruling it was Katz v. United States[19].
Charles Katz was suspected of transmitting gambling information to clients in other states by telephone. Federal agents recorded his half of several of his telephone calls by attaching an eavesdropping device to the outside of a public phone booth where he made his calls. Katz was convicted on the basis of this evidence, and the court of appeals upheld the conviction on the basis of Olmstead.
Harvard Law School Professor Laurence Tribe was involved in the case at the beginning of his legal career:
As a law clerk to Supreme Court Justice Potter Stewart, I found myself working on a case involving the government’s electronic surveillance of a suspected criminal in the form of a tiny device attached to the outside of a public telephone booth. Because the invasion of the suspect’s privacy was accomplished without physical trespass into a “constitutionally protected area”, the Federal Government argued, relying upon Olmstead, that there had been no “search” or “seizure” and therefore the Fourth Amendment “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ” simply did not apply.
At first, there were only four votes to overrule Olmstead and to hold the Fourth Amendment applicable to wiretapping and electronic eavesdropping. I’m proud to say that, as a 26-year-old kid, I had at least a little bit to do with changing that number from four to seven — and with the argument, formally adopted by a seven-Justice majority in December 1967, that the Fourth Amendment “protects people, not places” 389 US at 351. In that decision, Katz v. United States, the Supreme Court finally repudiated Olmstead and the many decisions that had relied upon it, reasoning that, given the role of electronic telecommunications in modern life, the First Amendment purposes of protecting free speech as well as the Fourth Amendment purposes of protecting privacy require treating as a “search” any invasion of a person’s confidential telephone communications, with or without physical trespass[20].
The Court in Katz followed Brandeis rather than Taft. It sought a reading of the Fourth Amendment that made sense of the amendment in a changed context. In the framers’ context of 1791, protecting against trespass to property was an effective way to protect against trespass to privacy, but in the Katz context of the 1960s it was not. In the 1960s much of intimate life was conducted in places where property rules did not reach (in the “ether”, for example, of the AT&T telephone network). And so a regime that made privacy hang on property did not protect privacy to the same degree that the framers had intended. Justice Stewart in Katz sought to remedy that by linking the Fourth Amendment to a more direct protection of privacy.
The link was the idea of “a reasonable expectation of privacy.” The core value, Stewart wrote, was the protection of “people, not places.[21]” Hence, the core technique should be to protect people where they have a reasonable expectation of privacy. Where this is the case, the government cannot invade that space without satisfying the requirements of the Fourth Amendment.
16.
See Robert Post,
17.
See Lessig, "Fidelity in Translation," 1214–68; Lawrence Lessig, "Translating Federal ism: United States v Lopez,"
18.
So, for example, the translations to support federalism are translations on the right, while the translations to support criminal rights are translations on the left.
20.
Laurence H. Tribe, "The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier," address at the First Conference on Computers, Freedom, and Privacy, March 26, 1991, reprinted in