Commentary
12:30 pm
Wed January 9, 2013

Past and Present: Privacy

Living in the age of the internet and social media challenges our right to be left alone. Historically, technological developments rush ahead of legal protections, leaving the Supreme Court to apply 18th century language to a brave new world.

Credit Jonathan McIntosh / Flickr

85 years ago, the court considered how Fourth Amendment protections against unreasonable searches and seizures applied to the latest communication device: the telephone. In 1928, Roy Olmstead managed a business that imported and distributed alcohol throughout the Pacific Northwest. For five months, federal agents listened to Olmstead's telephone conversations through a wiretap. They produced more than 700 pages of typed conversation that the federal government used to prosecute Olmstead for violating the National Prohibition Act. In so doing, however, they raised questions about reasonable expectations of privacy and the limits of gathering evidence.

When Olmstead's case came before the Supreme Court, the court ruled five to four against him. Chief Justice William Howard Taft argued that the Fourth Amendment protects only physical locations, people and property. In Olmstead's case, the federal agents had not "searched" his business and hadn't "touched" his property, but instead had gathered only his words. Therefore, Olmstead's Fourth Amendment rights had not been violated.

In his dissent, Justice Louis Brandeis referred to the origins of the Fourth Amendment-- a protection deemed necessary because of sweeping searches and seizures conducted by British customs agents in the 1760s. He realized that colonial protections in an industrializing nation could leave citizens vulnerable. So he argued that, as technology advances, so should constitutional protections.

Brandeis' dissent set the foundation for interpreting the Fourth Amendment protections more broadly and producing a right of privacy. While Brandeis could not foresee the internet or social media, he understood that technological advances would continually challenge Fourth Amendment protections and the right to be left alone.