US Government Surveillance – A Historical Perspective

In 1925, during Prohibition in the US, former police officer Roy Olmstead was convicted of running a huge bootlegging operation in the Seattle, Washington area. The conviction was largely based on transcripts of wire-taps on Olmstead’s telephone, a relatively new evidence-gathering technique. Olmstead appealed his conviction all the way to the Supreme Court. Olmstead claimed that the wire-taps were in violation of his rights under the Fourth Amendment to the US Constitution which protects US citizens against unreasonable search and seizure.

In 1928, the Supreme Court upheld Olmstead’s conviction, but Justice Louis D. Brandeis gave this prophetic dissenting opinion:

“The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.

…if the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means—to declare that the government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.”

It was not until 39 years later that the US Supreme Court changed its view on privacy. In 1967 the Supreme Court overturned the conviction of Charles Katz, who had used a telephone booth to relay bets as part of a gambling operation. The telephone booth had been bugged by the FBI using an external microphone.

Justice Stewart explained the ruling as follows:

“The Government’s activities in electronically listening to and recording the petitioner’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.”

A year later the US Congress passed the Omnibus Crime Control and Safe Streets Act which authorized electronic eavesdropping and wire-tapping as long as a warrant was obtained.

Another 46 years down the road and things are again complicated by further technological advances:

  • Can someone talking on a cellphone in a public place justifiably expect privacy?
  • Does gathering information for later analysis constitute search and seizure?
  • Is tracking someone whose GPS-enabled smartphone is broadcasting their location illegal?

Watch this educational video on the website of the American Civil Liberties Union for a primer on what can already be done using modern technology:

https://www.aclu.org/technology-and-liberty/meet-jack-or-what-government-could-do-all-location-data