Wednesday, October 05, 2011

Ken Burns Prohibition: Olmstead

The name Olmstead should be familiar to those students of Wiretap Law.  The law struggles to keep up with technology.  This is nothing new; the law struggled to keep up with technology a century ago.  Today we are struggling with the question of whether an individual has an expectation of privacy in a communications network.  That same question confronted the judiciary during prohibition.  Then the answer was no.  The expectation of privacy granted by the Fourth Amendment applied to your home; since a wiretap took place on telephone lines outside Olmstead's home, concerning communications that were being transmitted outside of Olmstead's home, there was no expectation of privacy and no 4th Amendment protection.

Watch the full episode. See more Ken Burns.

The seeds of destruction of Olmstead were written within the Olmstead opinion. Justice Brandeis, in his famous dissented, opined that the court had failed to recognize the Constitution as a living document. The Founding Fathers could not have anticipated all that would come after their time, nor did they intend for the Bill of Rights to be applicable only to the threats that occurred during their time. Brandeis wrote,
When the Fourth and Fifth Amendments were adopted, "the form that evil had theretofore taken," had been necessarily simple. Force and violence were then the only means known to man by which a Government could directly effect self-incrimination. It could compel the individual to testify — a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life — a seizure effected, if need be, by breaking and entry. Protection against such invasion of "the sanctities of a man's home and the privacies of life" was provided in the Fourth and Fifth Amendments by specific language. But "time works changes, brings into existence new conditions and purposes." Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.
It would take four decades for the courts to wake up and reverse Olstead, and another two more decades for Congress to extend this expectation of privacy beyond telephone networks to computer networks.

Today, once again, it is said that there is no expectation of privacy in modern electronic communications; we should get over it.  History repeats itself.
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