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Jeff Rosen on Scalia, privacy, and Kyllo case, from WSJ

[Forwarded with permission. --DBM]


From: "Riley, Jason" <Jason.Riley@wsj.com>
To: "'Declan McCullagh'" <declan@well.com>
Subject: Jeffery Rosen on privacy
Date: Mon, 18 Jun 2001 14:59:19 -0400

FYI Declan. Good piece in today's Wall Street Journal on Supreme Court

June 18, 2001
A Victory for Privacy
By Jeffrey Rosen. Mr. Rosen, legal affairs editor of The New Republic and an
associate professor of law at George Washington University, is author of
"The Unwanted Gaze: The Destruction of Privacy in America," just out in
paperback from Vintage.

Justice Antonin Scalia is not ordinarily celebrated by liberals for his
devotion to the right to privacy. But last week, he wrote a Supreme Court
opinion that is an occasion for all friends of privacy to dance in the
streets. In Kyllo vs. U.S., Justice Scalia held that the government acted
unreasonably when it aimed a thermal imaging device at a suspect's house and
surmised, from the high levels of heat on the exterior walls, that he was
using heat lamps to grow marijuana inside. For a 5-4 majority, Justice
Scalia declared that when government agents use surveillance technology that
isn't ordinarily used by the general public to explore details of the home,
the surveillance is presumptively unreasonable without a search warrant.

Justice Scalia's opinion is only the latest illustration of how privacy is
an issue about which liberal and conservative justices can increasingly
agree. And it provides a model of how the original understanding of the
Constitution can be intelligently translated to regulate electronic

This is a problem that that the court struggled with unsuccessfully for most
of the 20th century. The court's first encounter with electronic searches
was a 1928 case in which the government was using wiretaps to investigate a
suspect bootlegger named Olmstead. Olmstead claimed that the wiretap
violated the Fourth Amendment, which protects the right of the people to be
secure in their "persons, houses, papers, and effects." But Chief Justice
William Howard Taft disagreed. The Fourth Amendment, he said, was originally
understood to forbid only searches or seizures accompanied by a physical
trespass on private property, and the agents hadn't trespassed on Olmstead's
property when they placed wiretaps on the phone lines in the streets near
his house.

In a visionary dissenting opinion, Justice Louis Brandeis noted that when
the Constitution was adopted, breaking and entering into the home was the
only way for the government to invade a citizen's private thoughts. But in
the 1920s, subtler ways of invading privacy, such as wiretapping, made it
possible for the government to invade the privacy of the home without a
physical trespass. To protect the same amount of privacy that the framers of
the Fourth and Fifth Amendments intended to protect, Brandeis concluded, it
was necessary to prohibit unreasonable searches and seizures of
conversations over the wires, even if the invasions occurred without
physical trespass.

In 1967, the Supreme Court appeared to accept Brandeis's argument that
technologically enhanced surveillance could qualify as an unreasonable
search, but it did so in a way that inadvertently undermined Brandeis's
central insight. In the Katz case, government agents attached a listening
device to a public telephone booth and recorded a suspect's end of the
conversation without his knowledge. Overruling the Olmstead decision, the
court announced that the "Fourth Amendment protects people, not places."

In an influential concurring opinion, Justice John Harlan proposed the
following test for determining what kind of surveillance activity should
trigger the protections of the Fourth Amendment: A person must have an
actual or subjective expectation of privacy, Harlan suggested, and the
expectation must be one that society is prepared to accept as reasonable

Harlan's test was applauded as a victory for privacy, but it soon became
clear that it was entirely circular. People's subjective expectations of
privacy tend to reflect the amount of privacy they experience; and as
surveillance technologies grew increasingly intrusive, expectations of
privacy were correspondingly diminished. In the 1980s, for example, the
Supreme Court upheld the aerial surveillance of a fenced-in backyard without
requiring a warrant. Since any member of the public could, hypothetically,
rent a helicopter and hover over a neighbor's backyard, the court suggested,
all of us have to assume the risk that the police might do so, too.

Using the same circular logic in his dissenting opinion in the Kyllo case,
Justice John Paul Stevens would have approved the use of the thermal imaging
devices. Since we voluntary put out heat waves in the same way that we put
out the trash, Justice Stevens suggested, we can't legitimately expect that
our heat waves won't be monitored by what he aptly called "off the wall"
heat-seeking devices.

But in his majority opinion, Justice Scalia rejected this implausible logic.
"The question we confront today is what limits there are upon this power of
technology to shrink the realm of guaranteed privacy," Justice Scalia wrote.
Far from revealing only public information, the heat sensors might disclose
intimate details of the home, such as "at what hour each night the lady of
the house takes her daily sauna and bath." To protect the same amount of
privacy in the 21st century that citizens in the 18th century took for
granted, Justice Scalia held the government should get a warrant before
using cutting-edge technology to obtain information about the interior of a
home that, 200 years ago, would have required a physical intrusion.

Justice Scalia has been a consistent defender of the privacy of the home --
refusing to allow the police to move a stereo to observe its serial number,
for example. But he is not the only conservative justice devoted to privacy.
Justice Clarence Thomas is the leading advocate for the privacy of private
papers: In the case last year that rejected Ken Starr's decision to subpoena
Webster Hubbell's tax records after granting him immunity, Justice Thomas
wrote a bold concurring opinion arguing that the Fifth Amendment should
protect the content of private papers, as it was originally understood to

Justice Anthony Kennedy is especially concerned about people's privacy in
their cars -- perhaps because of his upbringing in California. And Justice
Sandra Day O'Connor recently wrote a powerful dissenting opinion in which
she argued that the Fourth Amendment should prohibit arrests for low-level
misdemeanors, such as seat-belt offenses, that are ordinarily punished only
by a fine. In all these cases, conservatives and liberal justices have
joined in unexpected alliances, proving that on the Supreme Court, as on
Capitol Hill, privacy is a cross-cutting, bipartisan issue.

The Kyllo opinion is only the beginning of the court's efforts to translate
the Constitution into a technological age. Justice Scalia held that
surveillance of the home requires a warrant only when the technology is not
generally in public use. As invasive technologies become more commonplace,
the court may have to decide that there are certain invasions no citizen in
a civilized society should endure, regardless of whether expectations of
privacy have been diminished by technology. And Justice Scalia's opinion is
limited to the home, leaving us vulnerable to the kind of surveillance in
public places that spectators at the Tampa Super Bowl recently experienced:
Their faces were scanned as they entered the stadium and compared with
databases of suspected wrongdoers.

But although Kyllo is only a first step in successfully translating the
original understanding of the Constitution into the electronic age, it is
welcome and long overdue. For this, we have Justice Scalia to thank.

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