by: Mark Morley 21 December 1993
In framing a government which is to be administered by men over men, the
great difficulty lies in this: you must first enable the government to
control the governed; and in the next place oblige it to control itself.
The Constitution of the United States calls for a separation of powers between the executive, legislative, and judicial branches of the federal government. The boundaries of these powers have been in contention since their inception over two hundred years ago. One of the current battle grounds is the Fourth Amendment.1 In recent decades the advent of electronic communications has necessitated a balancing act between individual privacy and government surveillance. Over sixty years ago the Supreme Court heard its first case dealing with the telephone and decided it had no constitutional jurisdiction to place restrictions upon law enforcement wiretapping.2 In the 1960s the Supreme Court began to overturn its previous position.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath of affirmation, and particularly describing the place to be searched, and the persons or things to be seized. in favor of protecting individual privacy.3 This decision was representative of a transition from a moderate to a more overtly political Supreme Court. As the Supreme Court effectively extended its powers, Congress responded with the first legislation drafted to restrict electronic surveillance by the Executive.4
Inevitably, communication technologies like the telephone began to combine with innovative computer technologies, and the protection of privacy afforded by these laws quickly became antiquated. In the 1980s Congress attempted to catch up with technological change by implementing a new privacy act.5
These developments clearly indicate that Congress and the Supreme Court have tended to perceive the advancement of communication technologies as a threat to individual privacy. Therefore, they have tried to protect citizens from surveillance by intrusive law enforcement agencies. In other words, the concern of Congress and the Supreme Court has been to maintain a balance between civil liberties and the powers of the Executive. While Congress was enshrining civil rights, the Executive concerned itself with enforcing the law and protecting national security.
Consequently, its surveillance capabilities have continued to expand in step with the advancement of communication technologies.
Moreover, it has tried to maintain control over the development of cryptology in order to safeguard classified information. In recent years, however, the advent of microcomputers along with sophisticated encryption software has placed the ability to secure privacy in the hands of individual citizens. In other words, the technological tables have turned such that individual privacy can be protected without recourse to the civil rights legislated by Congress and upheld by the Supreme Court.
As a result, the Executive no longer sees cryptology simply as a means to safeguard national security. On the contrary, since cryptology in the private sector inhibits government surveillance, it is perceived as a threat to national security. In order to maintain the surveillance capabilities that have become indispensable to law enforcement, the National Security Agency is currently seeking ways to regulate cryptology in the private sector. Thus, Congress finds itself pressured by the Executive to grant the power of law enforcement explicit priority over civil liberties. However, any new legislation must stand up in the Supreme Court to an interpretation of the Fourth Amendment that has come to endorse a right to privacy.
Such an abrupt turning of the legislative tide reveals the interests of all three branches of the federal government. In particular, it exposes political character of the Supreme Court. According to legal theorists known as originalists, the Framers of the Constitution never intended the Supreme Court to play a role in American politics. In other words, judges must interpret the Constitution without bias to the extent that they refrain from adjudication when the law does not directly address the matter at hand. If non-elected officials move past this boundary, they step into the rightful jurisdiction of the legislature and inappropriately upset the balance of powers. In the extreme view, the justices of the Supreme Court corrupted their powers when they jumped on the civil rights political wagon.
According to legal theorists known as activists, the Supreme Court cannot act in a neutral manner. Even to refrain from adjudication is to take a political stand. Once the Supreme Court began to advocate civil rights it exposed its political function such that it can never return to its mythical legal purity. Rather than pretending to be unbiased, judges must address the injustices embedded in social structures. Yet activists themselves are divided between a liberal interpretation of the law which is inherently conservative and a radical interpretation which calls into question the legitimacy of legal institutions. Individual privacy versus government surveillance is only one among many Constitutional controversies which highlight the current legitimation crisis of the Supreme Court. Perhaps what is unique to this particular issue is the role technological change has played in swiftly expanding and then quickly challenging the protection of the Fourth Amendment.
In this essay we will trace the technological development of electronic communications along with the corresponding legal developments in order to unmask the decisive political role of the Supreme Court. In particular, we will be focusing on the developments which have led to the current controversy regarding electronic mail and data encryption.
The Supreme Court and Electronic Surveillance Physical intrusion by law enforcement agents was the only means of "search and seizure" available to the government at the time the Constitution was drafted. The Fourth Amendment requires that agents obtain a warrant before a search may be legally conducted. In order to protect citizens from "unreasonable" intrusion, a warrant must be based upon probable cause, issued by a magistrate, and executed within a time limit. Moreover, it must specify the place to be searched and the objects to be seized.6
The question of government wiretapping under the Fourth Amendment was first addressed by the Supreme Court in Olmstead v. United States.7 Evidence against the defendants in Olmstead was obtained by intercepting telephones messages of the defendants.8 The interception was achieved by inserting small wires into the ordinary telephone wires without any physical trespass into the defendants' property.9 The defendants claimed that the use of evidence obtained in this manner violated the Fourth Amendment as an unreasonable search and seizure.10 The Olmstead Court interpreted "search and seizure" to entail only a physical intrusion.11 Since the interception in this case did not involve a physical trespass, the Court held that there was no Fourth Amendment violation. Hence, wiretapping was held not to constitute a search and seizure.12 By employing an interpretation of the Constitution which sought the original meaning of legal terms, the Olmstead Court decided not to extend the protection of the Fourth Amendment to visual or aural searches which do not entail a physical entry of the premises.13 In fact, the Court stated that extending the meaning of the term "search and seizure" to include the interception of telephone conversation by means of wiretapping could only be made by direct legislation from Congress.14 The same principles were applied by the Supreme Court once again in Goldman v. United States.15 In this case federal agents used an amplifying device to monitor conversation through a wall.
The Court ruled that, despite the trespass of adjoining property, there was no violation of the Fourth Amendment which would make the information obtained inadmissible. It should be note that the Court refused to grant the defendant a claim to an expectation of privacy.16 In Silverman v. United States, however, the government used a microphone which penetrated a hole in the wall of a row house to an adjoining heating duct in the defendant's home. The Supreme Court held that this constituted a physical intrusion which violated the Fourth Amendment.17 Silverman may be viewed as a weakening of the Olmstead decision in so far as the agents did not actually step foot into the defendant's premises.
In Berger v. New York, the Supreme Court held that a New York statute regulating electronic surveillance violated the Fourth Amendment.18 The Court's decision was based upon the technical deficiencies of the procedures outlined for obtaining a warrant. In fact, the statute's requirements for a warrant lacked the particularity of the crime, a description of the things to be seized, and the notification of the parties involved.19 Unlike previous cases, however, physical intrusion was not considered the crucial factor for determining a violation of the Fourth Amendment.
It would seem that the Court could have ruled that no warrant was required provided there was no physical trespass. By striking down a statute regulating electronic surveillance the Court moved one step closer toward an extension of the breath of the Fourth Amendment. Although the Court chose not insist upon the Constitutional need for a warrant, it did judge that new legislation regulating warrants for electronic surveillance must meet the same requirements as old legislation regulating physical intrusions under the Fourth Amendment. Less than a year later, however, Olmstead was overruled by Katz v. United States.20 In this case the government installed a recording device to the exterior of a telephone booth which was regularly used by the defendant.21 The Supreme Court held that such surveillance by the government constituted an illegal search and seizure because there was not probable cause to bug the telephone booth.22 The government tried to justify its activity by pointing out that there was no physical penetration of the telephone booth.23 While the Court acknowledged that the Fourth Amendment was thought at one time to apply only to the search and seizure of tangible property, it openly departed from a narrow interpretation and extended the meaning of "search and seizure" to include the recording of oral statements. The Court based its decision upon the principle that the Fourth Amendment protects people not places.24 Thus, it refused to make an exception to the requirement of probable cause even though no tangible goods were seized.25 Consequently, the Court disregarded the grounds based upon physical intrusion and developed its own principle: a warrant is required whenever the individual has a reasonable expectation of privacy.26 In order to appreciate the break the Katz Court made from previous rulings on electronic surveillance we need to look at the opinion of the court (delivered by Justice Stewart) in some detail.
In particular, we see that the Katz Court extended the boundary of Fourth Amendment protection by means of an abstract notion of privacy which was unacceptable in prior decisions. The emphasis on privacy as distinct from place becomes clear when we note that the Court rejected the defendant's formulation of the constitutional issues. The defendant based his questions upon: (1) whether a telephone booth is a constitutionally protected area, and (2) whether physical penetration of a constitutionally protected area is necessary in order to claim a violation of the Fourth Amendment.27
Firstly, the Court rejected the phrase "constitutionally protected area."
Secondly, it held that the Fourth Amendment cannot be interpreted as a "general constitutional `right to privacy`." It qualified this by stating that, although the Fourth Amendment protects individual privacy against specific kinds of government intrusion, its protection goes further than the realm of private property. As for a person's "general right to privacy, " such protection is left to the law of the individual States.
Having made this qualification, the Court proceeded to develop a notion of a right to privacy applicable to the Fourth Amendment. The issue is no longer a matter of protecting places. What an individual "seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."28
When someone steps into a telephone booth and closes the door there is an expectation of privacy. While the Olmstead Court considered an extension of the boundary of protection to be outside its jurisdiction, the Katz Court held that a more narrow definition of privacy would neglect the "vital role that the public telephone has come to play in private communication."29 In effect, the Katz Court extended the boundary of the Fourth Amendment by shifting the debate from the realm of private property to the more abstract realm of personal privacy. Hence, it was able to rule that government recording of the defendant's words "violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a `search and seizure` within the meaning of the Fourth Amendment."30
Thus, the Katz Court was able to openly depart from what it called Olmstead's "narrow view" and claim that the "Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, overheard without any `technical trespass under ... local property law.'"31 Having established that electronic surveillance does require a warrant, the Court proceeded to spell out guidelines for obtaining a warrant. Since electronic surveillance was treated as if it constituted a physical intrusion, no exceptions were made to the requirements for a warrant given in the text of the Fourth Amendment and developed in common law. In presenting its guidelines, the Court was particularly concerned that electronic surveillance not be left merely to the discretion of law enforcement agents.
Yet it explicitly stated that, although a situation involving "national security" may be an exception to the requirement of prior authorization, this case did not lend itself to such a question.32 It is worth noting that Justices Douglas and Brennan stated in a concurring opinion that the Executive Branch, including the President, has no grounds to engage in electronic surveillance without a warrant, even in matters of national security.33 In order to appreciate the significance of the activist interpretation employed in the decision of Katz, we need to examine the concurring opinion of Justice Harlan and the dissenting opinion of Justice Black.
In his concurring opinion, Justice Harlan pointed out that no longer associating privacy with place requires a rule for what constitutes protection of people. In his analysis he demonstrates that the Court has established a twofold requirement for privacy: (1) that a person have exhibited an actual (subjective) expectation of privacy, and (2) that the expectation be one that society is prepared to recognize as "reasonable."34
It is significant that such a rule appears no where in the text of the Constitution. In fact, this is precisely the kind of judgment the Olmstead Court refused to make because it considered such an extension of the meaning of "search and seizure" to be the proper jurisdiction of Congress. In making this rule explicit, Justice Harlan does not concerned himself with upsetting the balance of powers in the branches of the federal government. In his dissenting opinion, Justice Black claims that the decision rendered by the Katz Court effectively amounts to a revision of the Fourth Amendment.
When we examine his argument we see that Black employs an originalist interpretation of the Constitution which cannot be reconciled with an activist stand. The philosophy of original understanding is based upon the neutral application of a legal principle, which includes neutrality in deriving, defining, and applying the principle. A judge is to seek the original understanding of the words in the text of the Constitution in order that the Court may remain a legal rather than a political institution. Hence, originalism holds that the Court is not free to define the scope of a principle as it sees fit, for the outcome of the decision would then be based upon grounds that are not contained in the original understanding of the principle it purports to apply.
Such grounds cannot come from the legislature, and hence, must come from the personal preferences of the justices.35 Justice Black bases his dissenting decision on the meaning of the term "eavesdropping." According to his analysis, the Katz Court incorrectly defined "wiretapping" as a form of search and seizure rather than defining it more accurately as "eavesdropping carried on by electronic means."36 Black interprets the Court's opinion as opening the door for the enactment and the enforcement of laws regulating wiretapping in accord with the Fourth Amendment despite the obstacles the Berger Court set in the way of wiretapping laws. In order to appreciate these obstacles, we must recall that the Berger Court demanded the same procedure for obtaining a warrant for electronic surveillance as for physical intrusion. Yet a warrant for search and seizure normally requires that the named parties be notified. In the case of electronic surveillance, however, such a requirement obviously defeats the effectiveness of the method of intrusion. Although Black held that such obstacles to legislation regulating wiretapping must be removed, the failure of the Court to make a distinction between "search and seizure" and "eavesdropping" incorrectly extended the Fourth Amendment to include wiretapping. In arguing for his opinion, Black upholds two convictions: (1) the words of the Fourth Amendment do not bear the meaning given them by the Court's decision, and (2) it is not the proper role of the Supreme Court to "rewrite the Amendment in order `to bring in it in harmony with the times` and thus reach a result that many people believe to be desirable."37
Thus, we see that Black is employing two fundamental tenets of originalism: (1) justices must seek the original meaning of the words of the text, and (2) justices are not to rewrite the scope of a principle where the Constitution is silent for this is the proper role of the democratically elected legislature. After quoting the entire Fourth Amendment, Black establishes that the "Framers' purpose" was to protect tangible things and not to protect conversation which cannot be searched or seized according to the normal meaning of such words.
Moreover, the Amendment refers to things which must be described for they are already in existence. Yet it is impossible to describe a future conversation. Hence, Black concludes that the Fourth Amendment does not apply to eavesdropping. Although wiretapping was unknown at the time of the framing of the Bill of Rights, eavesdropping certainly was practiced and could of being incorporated into the Fourth Amendment.38 Black proceeds by giving an overview of Supreme Court cases dealing the Fourth Amendment's applicability to eavesdropping.
Thus, he attempts to show that his opinion is consistent with the Court's previous decisions, in particular, with all the relevant cases from Olmstead through to Berger. He concludes that he is simply applying the scope of the Fourth Amendment which the Court has traditional followed and that the Katz Court has made a distinctive break in order to include eavesdropping.39
In a footnote, Black states that "the Court is promulgating new doctrine instead of merely following what it `has long held.`"40 According to Black, the Court has decided that a conversation can be "seized."41 In light of his conviction that it is not the place of the Supreme Court to "keep the Constitution up to date," he claims that the Court does not have the power to give new meaning to words, especially a meaning which the words to do have in "common ordinary usage."
To exercise such power is to turn the Court into "a continuously functioning constitutional convention." Black points out that this shift in the Court's policy happened only recently and is coincident with its "referring incessantly to the Fourth Amendment not so much as a law against unreasonable searches and seizures as one to protect an individual's privacy." Moreover, he considers this an arbitrary substitution of the "Court's language" for "Constitution's language."42 As another example of a substitution in favor of a right to privacy, Black recalls his dissenting opinion in Griswold v. Connecticut. There he held that the Constitution does not provide a "right to privacy" that protects individuals from laws which compromise privacy. The conclusion of his dissenting opinion in Katz states: No general right is created by the [Fourth] Amendment so as to give this Court the unlimited power to hold unconstitutional everything which affects privacy. Certainly the Framers, well acquainted with the excesses of governmental power, did not intend to grant this Court such omnipotent lawmaking authority as that. The history of governments proves that it is dangerous to freedom to repose such powers in the courts.43 Given Black's originalist position, it is understandable that he could not be reconciled with the Court's decision to extend the protection of the Fourth Amendment to recording and wiretapping. Although Black recognizes the legitimate need to regulate wiretapping, he believed that the obstacles presented by the Berger Court should have been dealt with in another manner.
In particular, he is concerned with the Court's adoption of rights discourse. Rather than upholding a right to privacy by expanding the meaning of "seizure" to include conversation, presumably Black felt that the Court should have deferred to Congress in order that the law be updated by amendment to the Constitution. During the years following the decision in Katz, the Supreme Court continued to uphold civil rights, such as an individual right to privacy, in the face of technological developments in other domains. In fact, it can be shown that the Supreme Court has gradually moved from policies which tolerate technological advances at the expense of individual rights to policies which put decisions in the hands of individuals. In the nineteenth century, the Court upheld statutes which called for the universal vaccination of citizens.
It also protected laws which authorized the government to sterilize criminals. In the early twentieth century, however, the Court opposed sterilization on the grounds that basic human rights outweigh any potential harm to society that may come from the children of criminals. In recent decades, computerized data banks have enabled governments to compile extensive records on citizens without their knowledge or consent. While upholding the need of the state to compile data for specific purposes, the Court has insisted that reasonable measures be taken to maintain confidentiality. Just over fifteen years ago, the Court decide that a woman's right to privacy outweighs the state's interests in cases regarding abortion.
Finally, with the recent advancements in life-sustaining technologies, the Court has upheld the individual's right to withhold treatment despite a conflict with the traditions of the medical profession. In general, the Court has displayed a cautious attitude toward new technologies in favor of individual rights. In particular, the Court has perceived the government's widespread use of computer technologies as a threat to individual privacy. Underlying these decisions, however, is a constitutional philosophy which favors individual rights in the face of technological change.44
Congress and the Regulation of Government Surveillance Congress responded to the decision of the Supreme Court in Katz with Title III of the Omnibus Crime Control and Safe Streets Act of 1968.45 This legislation was enacted to regulate the use of electronic surveillance by law enforcement agencies. By effectively revising the Fourth Amendment to incorporate wiretapping, the Court in Katz opened the way for the legislature to enact regulations without recourse to the lengthy process of constitutional amendment. Title III of Omnibus was only a part of an act of Congress which found that "the high incidence of crime in the United States threatens peace, security, and general welfare of the Nation and its citizens."46 While attempting to find new ways to "prevent crime," Congress tried to balance the privacy interests of the individual with the legitimate means of law enforcement by the state. Title III was the first comprehensive piece of legislation to address the issue of communications privacy.47 In particular, it protected only two types of communications against electronic eavesdropping: (1) telephone conversations and (2) face-to-face communication.48 The law established the requirement of a warrant for the interception of wire or oral communications under circumstances where there is a reasonable expectation of privacy.49 It also laid out specific procedures for obtaining a warrant, including restrictions to electronic surveillance which limit its use to certain types of criminal investigations.
In this way, Congress enacted legislation designed to meet the technical demands of the Berger Court regarding probable cause and to address the political concerns of the Katz Court regarding the protection of individual privacy. In a short period of time, technological change proved to make Title III inadequate. By restricting itself specifically to telephone wiretapping, its regulations could not be extended to new communication technologies like cellular telephones and electronic mail.
As a result, these communications did not fall under the Fourth Amendment's protection against illicit government surveillance. Hence, Title III was criticized for its failure to anticipate technological advancement. In order to address the inadequacies of Title III, Congress instituted the Electronic Communications Privacy Act of 1986 (ECPA).50 Its primary concern was to safeguard the right of individual privacy from erosion due to technological advancement. Hence, it extended Fourth Amendment protection to new communication technologies such as cellular telephones, data transmissions, and electronic mail. Unlike the design of Title III, Congress tried to anticipate potential abuses associated with developments such as multi-media technologies which would fall under more than one classification of service. The ECPA also expanded the scope of sites protected to include not only public carriers such as telephone companies but also private services such as corporate computers. Prior to the enactment of the ECPA, no federal statute addressed the issue of data interception. With the ECPA, electronic mail and data transmissions are protected in manner that parallels the protection of voice communications.51 Hence, government interception of these types of communication is only permitted under the restrictions of a warrant.
However, the procedures differ from those applicable to telephone wiretapping. For example, court authorization for data interception, unlike wiretapping, can be based upon suspicion of any federal felony.52 In addition to technological change, Congress had to consider political factors in drafting the ECPA. Protecting civil rights is not without its difficulties. During the Reagan Administration, bills supported by the Justice Department were favored while ones opposed by it were likely defeated. Consequently, the ECPA needed the support of the Department of Justice in order to be signed by the President.
However, the ECPA bill was given very strong support from corporations. (Communications providers wanted to ensure their customers that the new technologies would be protected.) As a result, the success of the ECPA depended upon the support of civil liberties groups, business interests, and law enforcement officials. By enacting the ECPA, Congress not only preserved existing civil liberties but also expanded protection of communications to include government and private sector interception of data.53
The Executive and the Powers of Law Enforcement The Constitution of the United States vests the President with the powers of the Executive, including the power to enforce the laws.54 At the time the Constitution was ratified, the Fourth Amendment was included in order to protect citizens from the unreasonable search and seizure of their goods by government agents. With the development of communication technologies, the Executive has expanded its capabilities to engaged in the surveillance of citizens. In recent decades, the Supreme Court has heard many cases which bear witness to the great interest law enforcement agencies have in electronic surveillance. Moreover, the civil rights movement bears witness to the great interest citizens have in preventing their government from becoming an Orwellian state. After decades of unrestricted electronic surveillance, the Court's decision in Katz finally opened the door for the first legislation to regulate wiretapping under the Fourth Amendment. With Title III of Omnibus and the ECPA, Congress placed limits upon the powers of the Executive in the name of an individual right to privacy. Legal restrictions were deemed necessary in order to protect individuals from the ceaseless surveillance of Big Brother.
Given that the ECPA was designed to anticipate future technological developments, it would seem that a lasting balance between individual privacy and government surveillance has been struck. Yet the ECPA did not anticipate the development of private sector cryptology along with the growth of electronic mail services.
These technological developments enable individuals to ensure the privacy of their communication without recourse to civil rights legislation. A warrant may grant the power to access personal data, but it is powerless to crack data encryption. After years of negotiating restrictions upon the legal powers of the Executive in the wake of expanding communications technologies, law enforcement agencies now find themselves seeking restrictions upon the technological powers of individuals in the wake of expanding civil rights.
Government interest in restricting cryptology dates back to legislation banning the export of cryptologic devices and related research.55 At that time, the government saw cryptology as a means to protect classified information. These laws placed cryptology on a list of munitions, giving the President the authority to regulate its development and deployment.56
In recent decades, the National Security Agency (NSA) has been given executive responsibility to regulate cryptologic standards for classified and national security information. It develops its own cryptosystems and appraises publicly available cryptosystems in order to offers private sector corporations a guarantee of security. In 1977, the NSA endorsed the Data Encryption Standard (DES) issued by the National Bureau of Standards (NBS) for nonclassified government and private sector cryptosystems. However, recent technological developments, especially the widespread growth of powerful private sector computers, have forced the NSA not to renew its guarantee. In light of the inadequacy of DES, the NSA made plans to issue its own cryptosystem for both government and private sector information. It argued that cryptologic research, development, and use by the private sector threatens government security. In other words, the NSA is seeking to control all cryptology, even private sector cryptosystems, due to the reliance of national security upon economic strength. To this end, the Reagan Administration drafted the National Security Decision Directive 145.57 It was withdrawn, however, after being severely criticized for the imbalance of authority it gave to the President over private sector information.58
In 1987, Congress enacted the Computer Security Act which transferred the regulation of cryptology for unclassified information to the National Institute of Standards and Technology (NIST). Nevertheless, the NSA under the Bush Administration continued to forge ahead in its attempts to regulate cryptosystems. In 1991 it announced the development of the Digital Signature Standard (DSS), and proposed that its system be used for private sector security.
At that time the NIST was about to recommend a encryption method known as Rivest-Shamir-Adelman (RSA), an algorithm patented by the Massachusetts Institute of Technology. Within a few months, however, NIST endorsed the DSS. Congress responded by establishing the Computer System Security and Privacy Board which called for a national debate on the use of cryptology.59 In April 1993, the Clinton Administration announced its approval of the Clipper Chip, a cryptologic device designed by engineers at the NIST for both voice and data communications. It is intended for use by the private sector in order to secure communications while at the same time enabling law enforcement agencies to conduct surveillance. In other words, the device aims at maintaining the government's ability to eavesdrop on private communications in the face of private sector cryptology that threatens current law enforcement practices.
The plan for implementing the Clipper Chip includes legislation which would provide protection under the Fourth Amendment. Presumably, law enforcement agents would require a warrant to be granted in accordance with the same restrictions currently placed upon wiretapping and the interception of electronic mail. The ramifications of this controversial proposal, including its constitutional implications, are presently under debate.60
Conclusion No one denies the necessity of maintaining the integrity of the Constitution, especially the protection afforded by the Bill of Rights. Yet disputes do arise over whether it should be accomplished without upsetting the balance of powers between the executive, legislative, and judicial branches. In the case of protecting individuals from unreasonable electronic surveillance, we have seen that it was the Supreme Court which took the initiative. By interpreting the meaning of the term "search and seizure" to include the seizure of conversation, the Katz Court expanded the breadth of the Fourth Amendment to include electronic surveillance. From an originalist perspective, the Court gravely upset the balance of powers by deriving, defining, and applying a principle of privacy not explicitly found in the text of the Constitution. From an activist perspective, the Katz Court rightly took a biased stand in order to bring the Fourth Amendment into accord with the technological circumstances and political climate of the day.
After the Supreme Court made the first move towards protecting individual privacy, Congress quickly responded with legislation designed to restrict electronic surveillance by the Executive. According to originalists, the political stand of the Court in support of civil rights was a threat to freedom. In other words, by exerting their power into the political realm, non-elected justices disregard the proper authority of elected members of Congress.
Yet in Katz we did not witness the collapse of democracy. On the contrary, we saw the separation of powers produce a prompt response by Congress, a response that checked the powers of the Court and the Executive. Although the adherence to original meaning defended by Justice Black and others is credible, originalists cannot legitimately claim that their method of constitutional interpretation is the only acceptable approach to adjudication.
They demand that the separation of powers should be clearly defined. Yet the actual practice of checks and balances reveals that the judiciary is political by the very nature of the Constitution's design. Although the Supreme Court is the weakest of the three branches, it has just enough political power to agitate Congress and the Executive. Even when the Court refrains from adjudication, a political message is sent. Such was the case when the Olmstead Court called upon Congress to legislate protection from wiretapping under the Fourth Amendment. Nevertheless, the activist method of constitutional interpretation is not without its own difficulties.
After two decades of upholding civil rights, the Supreme Court now finds itself facing unexpected technological circumstances and situated within a very different political climate. At the time Congress and the Court endorsed a right to privacy, individual citizens lacked the technological means to protect themselves against electronic surveillance. Thus, the law was the only obstacle to surveillance. Today, however, private communications can be established with a personal computer and sophisticated encryption software. Hence, the Executive considers the new technologies a threat to its ability to enforce the law and is taking measures to maintain its electronic surveillance capabilities. Moreover, Congress is becoming less concerned about civil rights and more concerned about controlling the high rate of crime.61 What will the Court do when it is called upon to evaluate laws intended to protect the "rights" of law enforcement agencies? How will it maintain its credibility? The Supreme Court will eventually have to face the constitutionality of "crime control" statutes designed to augment the powers of law enforcement agencies.
If the Court takes an originalist stand, it will remain silent. If it takes a liberal activist stand, it will pit the liberties of citizens against the powers of the state in a battle over civil rights. However, if the Court takes a radical activist stand, it will move beyond "rights discourse" in order to pressure Congress and the Executive into addressing the vast disparity which is at the root of a considerable amount of crime. Under these circumstances, the Court may even employ its political power to instigate a constitutional convention on racial and economic injustice.
Nonetheless, whichever theory of adjudication it chooses to practice, the Court's resolutions will inevitably have political repercussions.
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