We know that from the kilo case where Justice Scalia said when cuttingedge technology is used in that case to invade the privacy of the home then a warrant was presumptively required and the jones case suggested that even outside the home you might have an expectation of privacy against cuttingedge technology. In the end, the government is limited in its ability to record our conversations in public by state and federal laws, but the expectation of privacy test would have protected you against the laser beam. James, welcome to landmark cases. Youre on. Hi. When Justice Stewart delivered the opinion in court he took issue with the way the petitioner act tomorrow lated the questions which included a, whether a public telephone booth was a publicly protected area and physical penetration was necessary before search and seizure could be said were violations to the Fourth Amendment to the United States constitution. He added a couple of words in there. One was in place of right to privacy. He added, but the detection of a persons general right. Anyway, thats what i have for that. Thank you very much. Kamil . The court was very careful with the majority and was careful to say were not opining on the general right to privacy. Were specifically talking about the phone booth and if he closes the door and creates a space that while its true the Fourth Amendment protects people and not places, the brand of the right to privacy in the famous dissent was to be protected in the first instance by states just like the life of a person and the liberty of a person presented by state law and so the stewart opinion was narrow and its important to remember that katz was never cited for the opinion and it was cited for the concurrence which was for the right to privacy and the idea that that was made up of two components, a subjective component. I believe i have an expectation of privacy in the space and the objective component that societiy society is expecting privacy in that space. The harlem opinion is the been that matters. While stewart wrote a wellcrafted opinion and one that was able to bring together the Seven Members of the court, ultimately, it didnt matter because the harlem opinion is all they care about. Heres the text of the harlan opinion. I join the opinion of the court which i read to hold only at that an enclosed telephone booth is an area where a person has a constitutionally, protected reasonable expectation of privacy. It is in this sense private and my constitute a violation of the Fourth Amendment. Why is this so important . It gives us a twopart test. Lawyers love it. You have to have a subject of expectation of privacy that society was able to accept as reasonable and it was clear for lower courts to apply except that it wasnt because on the one hand who knows what one persons subjective expectation is and katz closed the phone booth behind him, but people may have different expectation of privacy. The court was never systematic about measuring what expectations of privacy actually are reasonable. There is a fascinating study by professor slobogan of vanderbilt. He was asked what is your expectation of privacy and there was no expectation, email privacy or privacy of not having their diaries read and theres a kind of lets make it up quality to the application of the harlan test and furthermore its circular for the reasons we discussed because its possible for the government to lower expectations merely by increasing surveillance, just as harlan himself seemed to have second thoughts about the test. In the white case he embraced the normative testing. How much privacy should people in a free society be entitled to demand and that was a far more robust test, but the majority of the court has not accepted it. Here is a brief excerpt. He wrote tapping telephone wires was, of course, an unknown possibility at the time the Fourth Amendment was adopted. No general right was created by the amendment so as to give this court Unlimited Power to hold unconstitutional anything that affects privacy. Im thinking the hole in the pillow for the text of the constitution. Is there anything long lasting about justice blacks dissent in this days . Justice black was fighting a noble battle. He dissented also in the griswald case which you already discussed and making up privacy rights. In the end although he was an originalist and textualist and the oral argument in the jones dps case. Alito said they didnt think about gps devices. Scalia said yes, there is an analog a tiny constable hiding under the carriage and eavesdropping. You need a thousand constables to get a gps device and ought to be very large constables and here you have these two justices agreeing that the Fourth Amendment applied and justice black there was toward the end of his career and he wasnt able to see conversations as Digital Effects and for that reason wrote noble, but not in the end very influential dissent. Lets look at a couple of headlines from december 19, 1967, of the decision in this case. The Los Angeles Times headline. Supreme court rules bugging is subject to legal safeguards. In the New York Times high court eases curbs on bugging and insists police must obtain warrant to acts and doesnt forbid eavesdropping. We how significant was it seen in society at the time . I think it was a big deal because it really did change the law and it also changed the way it was important because at that point these devices were just coming into vogue. This was the new era of electronic surveillance and theyd been around for a while and this is an important way and we know in the modernier a it is the principle way in which the government is able to obtain criminal evidence and in the case of mass security cases and mass security evidence and operatives and the like, and apparently famously government officials or Campaign Officials as weve learned in the last few months and years has generated a tremendous amount of debate within the executive branch in the last few months alone. So you know, this was an important case, even at the time, but i dont think anybody realized how transformative it would be and how much it would influence our law even 45 years later and were having the same 50 years later and almost the exact same conversation about okay, what does katz mean in this context . What does reasonableness mean . Where do we look for reasonableness . Do we look for the subjective test and the second part. Do we look to the framers and what they thought . Do we look toward what modern law says and the law of the state and the jurisdiction in which this is happening . These are very much debates today at the court i think as these questions are playing out. In a moment we will hear from the young lawyer Harvey Schneider today telling the story what happened when he learned the decision. First lets hear from ron in new hampshire. Hi, ron. Hi. Thank you for taking the call. At the uniting amendment. Com, privacy is one of the things that we struggle with trying to figure out and weve made quite a bit of progress, actually. Privacy is an instinct. Its something that evolved through nature and what it comes down to is not places and people. It comes down to information. You think of it in terms of information its a lot easier to get your hands around. The Fourth Amendment mentions paper. Paper was the only way that information could be stored and the justices think of it that way and paper was information and it would be easier for them to extrapolate what the right really means. The problem is that when that instinct is manifest in a culture and the way it manifests from culture to culture so standards have to be established and thats where the common law comes in is establishing a standard. This is a tweet from wild and wonderful as to the seizure on intangible things, particularly words and we should remember that founders had gained independence from a country that would put unconvicted persons to the rack and perhaps they did envision intangibles. For those two viewers, what would you say . They were both very important comments and the framers believe we have certain natural rights that come from god or nature and not from government and those include a cognitive liberty and our thoughts and we know that because of the great battles of the revolution were made anonymous pamphlets. The framers focused on technology and where people recorded their private thoughts and diaries. It is so interesting that your crowdsourcing amendment project is trying to come up with ways of making that clear in the amendment and id love to ask students how would you amend the Fourth Amendment to make clear its application to Digital Technology and people would suggest adding the word digital and the right to be secure in our Digital Effects and our cell phone records and our geolocation movements would be explicitly protected. Justice black said it wasnt like wiretapping was unknown at the framing and it was a modern analog to eavesdropping. Eavesdropping was well known at the framing if theyd meant to protect against eavesdropping and they would have said so. They said, you know, persons, houses and they didnt mean to. This question of are you trying to look at the words and are they trying to protect as an intellectual matter. Is it about protecting what is in your brain or the things you carry around with you . And there were debates at that area of the court and there are debates in the modern era of the court and do you solve that by saying, well, the modern era is the iphone and thats your solution or do you come up with a different theory of the world. David Vincent Greco watching us on twitter. Was the court in a way essentially sending a message to ma bell who telephonized Service Equipment at the time and actually facilitated the search. Lets hear from Harvey Schneider, charlie katzs lawyer upon hearing about the Supreme Courts decision. I think the decision was december. So there was about between october and december, thats two or three months and you just wait and then you get in the mail, you get the decision from the court which 7 to 1 we won and exhilarating and the very next case that i had when i returned from arguing before the Supreme Court was representing a guy with a traffic ticket in inglewood, california. Thats going from the heights to the depths. How human is that clip . In the mcgeorge law review many years later mr. Schniert also added a postscript in his description of the case, this is what he wrote and there is a postscript to katz which is demonstrative and he informed katz of the historic decision which now bears his name. His First Response was not one of thanks or gratitude. Rather, he wanted to know if he could sue the Telephone Company for permitting the fbi agents to put one telephone booth out of order and so it goes, he writes. Were going to spend our last 15 minutes talking about the consequences of katz and its long tale. Weve done a lot of that already, but lets listen to jimmy in athen, georgia. Hi, jimmy. Youre on the air. Jimmy in athens . Yes . There you go, sir. Youre on the air. Im glad that they did increase the amount of freedom we have with this decision, but one thing they did not mention was the right to gamble. Has there ever been a case that says that law should have been unconstitutional because people have the right to gamble . Thank you. Thats really interesting. You could ban things that were in public morals ranging from gambling to cockfighting which was deemed to lower public moral, but Justice Kennedys decision recognizing the right to autonomy and the mist reef human life could theoretically be extended to protect the right to gamble. The court has not yet extended the right to autonomy to include the right to gamble. On to katzs legacy. Charles katz, basically never heard from again. Hes faded into the history books after giving his name to this case and pursuing it to the court which gave us this expanded view of the right to privacy, but in fact, society reacted to it, and i want to talk a little bit about that. Heres a New York Times story of 1967. New tack in bugging. State laws allowing eavesdropping. How did states respond and how did Congress Respond to this ruling . Also Congress Passed title three. The omni bus crime and control act of 1968 which provided a warrant procedure for wiretaps. They created a set of predicate apps and that law has been modified over time, but congress reacted by legalizing wiretaps for specified crimes and that was allowed to stay with us. Its been expanded and modified over time to give access to different types of data and levels of requirement including the 1986 amendments to address Electronic Communications and some would say inappropriately low protections today and the big debate about it was called and needed to be updated for the modern era and the laws now seeing applied today to the cell phone cases and the meta data cases which permit access to noncontent records for less than a warrant and there is a big debate in the policy space as well as before the courts as to whether thats an appropriate standard and whether an award will be required for the noncontent records where its about your location and it can track you for days, weeks and months on end. So we have been talking about some of the cases that came out. Here are a few of the key ones. In 19724 iss the nixon administn came out with a challenge with the u. S. Versus district court, and kylio versus u. S. And carpenter versus u. S. Which will be decided later this year on the tracking of cell phone positions with the towers. Whats important to know about this series of cases . Each is an attempt to translate the lessons of katz in light of still new technology. So the keith case says there could be a National Security exception and if there is a real threat to National Security maybe you could have lower standards and generally you do need a warrant to get records. The kylio case involves thermal imaging that measures the heat in the outside of the house and the guy growing marijuana with heat lamps Justice Scalia said was protected because the technology could reveal intimate details and the lady of the house was taking her daily sauna or cash and it was physically affixed to the bottom of the car and sees the car with the gps device. It could be the most important Digital Privacy case in the 21st century because it involves the case and we walk down the street with our cell phones and emitting geolocation, and it has 127 days for five months and the question is do we have an expectation of privacy in those records that weve emitted. The government said though, we were invoking the thirdparty doctrine with katz. At the oral argument, Justice Gorsuch was focussed on the the property interest in the digital records and Justice Sotomayor of the government expectations that the government will not be tracking our movements for five months and seeing what we have and so forth. Whats exciting about carpenter, its an opportunity for the court to do what it did in katz and to translate the amendment with a theory that is based not in existing case law, but requires them to take an additional step and they may do so for different reason, but it is exciting to see justices of both sides converging around that protection. What would you say about that list and would you add some others to it . Keith has a particular case that is near and dear to my heart. Keith is named keith because the u. S. District court has a mandamus petition to the court to require the judge to do something and it dealt with the surveillance of a gentleman who tried to blow out the local cia office, who knew there was an office in ann arbor, michigan. This was a Domestic National securi security case or an interNational Security case . This was in favor of the government and they should have gotten a warrant and its only known for its footnote that says we assume in cases of National Security they dont need a warrant. They dont decide it and they just assume it and in every court for National Security, you dont need warrants. This is an interesting doctrine because that what has developed the entire introis structure is built on the idea that you dont need a Fourth Amendment warrant, Something Like it, or Something Like a Fourth Amendment warrant, but not a Fourth Amendment warrant and keith is interesting for that purpose. Christine is watching us in somerset, new jersey. Hi, christine. Hello. My question is about expectations of privacy and whether the bar will be lowered as the younger people have less of an expectation than we do. I was born right in the middle of the baby boom in 55, and i talked to my niece who is a millennial of privacy and my expectations are very high and she laughs at me and says look, get over it. Theres no such thing as privacy. So if people in their 30s and younger feel that theres no expectation of privacy then where does the bar stand for whats reasonable . Thank you. Thats a crucial question, and as you suggested, if privacy expectations go down then so do the protections. Its not true that younger people have no expectations of privacy. Donna boyd, the privacy researcher has done some really interesting study suggesting that millennials just have different expectations than people of our generation do, and they may be more willing to reveal themselves on facebook, but also not so willing to be searched at the border, for example. We cant have this show and the facebook hearings are tomorrow and we are having a National Conversation during my many years of writing and looking at privacy about whether we trust private companies to manage data and to share it and to allow that to be governed by user agreements cl may or may not be violated. If the world is experiencing that we have no privacy on facebook. According to the katz dkts rin, the constitutional protections might be diminished, as well and that might affirm that we need to resubmit it, as great as an advance was, its not adequate for protecting privacy in the age of faceback and it will be interesting to see what the courts come utsch with next. Theres some irreducible praf see and even after you have the expectation of an individual and whether society as an objective matter is the common law sets a baseline that states cannot deviate below even if they were to permit a certain type of surveillance based on the views of the community at the time this is a debate. Steve sen phen is in westin, connecticut. I had a comment that you would advertise this landmark series more so more people did watch it and understand that the courts have a legitimate role in making law which apparently half the country does not understand, but my question is also a quick one. Is there any agreement as to what is an objective evidentiary standard for what society will accept as reasonable. Is it state law or Court Decisions or Public Opinion polls or is there any agreement because otherwise the objective standard becomes like a subjective standard and a shaggy dog story and the court thinks that hes shaggy and no i dont think hes such a shaggy dog. Thank you. Its funny. Justice stewart who wrote the minority opinion is also the one who jacob ellis said about pornography, i know it when i see it. In a lot of ways, the subjective, there is no accepted test for what society will accept. Accept what the court says at the time that societiy is ready to accept it. We have seen the court when it comes to the cruel and unusual talk about what the states are doing and take a look at what the states or foreign jurisdictions are doing and theres disagreement about whether theyll be doing that and thats one way the courts try to interpret certain aspects of what they think society thinks in terms of the constitution when theyre trying to apply it in the modern era and whether thats an appropriate methodology, in this case, jeff, what do you think . Youre right, and the lack of precise standards does make it like a shaggy dog. In the 8th amendment the court might look to state constitutions and state laws and technology has moved that it has not regulated geoapproximately see, and theres been a bill pending in congress that has bipartisan sponsorship and it hasnt passed yet and not enough of the states have regulated it which give the Court Guidance which makes the whole enterprise frustratingly and Justice Alito has said lets go to trespass rules to try to identify something objective and this is what justice black was upset about and to give him his due, he was right that there was something mushy and shaggy doglike about this reasonable standard and both sides are recognizing that its not satisfactory. Historical question from a view or twitter asking do you feel that earl warren expanded legal rights because he felt gotty about the further denial. Do we know about his writings or his commentary about motivation . We know that he was very upset at the end of his life about his role in the japanese internment and in his autoing about ravi, he expressed remorse and he wept. Popular to conception and the banners, he cited with Law Enforcement frequently, and he was a former prosecutor, and did not view this case as one that was going to thwart Law Enforcement and he thought that the police could get a warrant. So i think the answer is that although he was very regretful about his role in the japanese internment cases it did not influence his view in the cases. George in pittsburgh youre in landmark cases. Welcome. Hi. Thank you. I was wondering how these decisions would apply to the government during the surveillance. Recently weve had a lot of talk about facebook and other types of organizations doing that sort of thing. Youre asking it on a very important week, as we noted. Tomorrow and wednesday here as youre watching this live from Mark Zuckerberg before Congress Answering lots of questions about praf sivacy. A lot of us use gmail, facebook, twitter, you name it. We voluntarily give to these companies our data and a lot of access to our data. I dont know about you, but when im back a few years ago when i was on gmail, if i was looking at an email about bahamas i would get an ad about a trip. I knew that they may not have been reading my email and they were identifying words and pushing ads on that basis. The question is what does that do to your reasonable expectations of privacy as against google. Do you have one . Do you have a user agreement, right . You agreed and theyre give young this free account that you really want because everybody has one and facebook gives you access to your friends and the trade is you give them all of the information and maybe you dont want it used by Cambridge Analytica and you dont want it to send you messages and you agree to do it. Does congress intervene and get in the game and does the ftc get into it and regulate it . The challenge as jeff points out laws are hard to change and technology is moving at such a rapid rate its hard to imagine the government which is so bad in Technology Keeping up with modern technology and not stifling innovation. So its a big debate. We have just a couple of minutes and i want to bring this all together. So as you talked about, this is evolving on so many different tracks at the same time. First of all, we have increased threats to this nation, both foreign and domestic. Technology is moving at the speed of light that we could not have imagined two years ago along with sort of wear and we have the commercial sphere. Over this course of time, do we know how important katz is going to be . We know that katz will serve as an inspiration to judges and citizens to transport the amendment and we have the same amount of privacy in the age of the wires and of cell phones and of facebook as we did at the time of the framing. As jamil said, the amendment says Congress Shall make no law. It doesnt say Mark Zuckerberg will have no law that is imly because we sign a user agreement that we have no privacy and the challenge and theres not an easy answer and i think that congress and citizens and regulators and the federal trade commission and ultimately, we, the people, have to be as create of as the justices were and as harvey was and hes the hero of the show tonight and thank you judge schneider in light of these new technologies and thats what all of us have to do now that our privacy is being threatened not only by the government. Jamil, closing comments and the enduring nature of katz. It certainly does influence every debate about the Fourth Amendment and government surveillance in the National Security context. It is very much a live topic in our political bodies and the legislative branch in weeks and recent months at the court. To the present day, will things change . Inevitably and the court will take more cases and will katz be forgotten . I highly doubt it. Were about half way through our series. If youve been watching with us we have said thank you to the National Constitution center. Tonight is my opportunity to do that with the president of the National Constitution center sitting right here so thanks to you and your team for all of the help youve given us for this series. Thank you for this wonderful collaboration and for educating americans about the u. S. Constitution. Thats it for our program tonight. Thank you for being with us. Tonight on American History tv our series landmark cases continues, produced in cooperation with the National Constitution center we explore the issues, people and places involved in some of the nations most significant Supreme Court cases. We begin at 8 00 eastern with tinker versus des moines which established that students do not lose their first