            The Supreme Court and Electronic Surveillance:
            A Study of Originalism, the Fourth Amendment,
                  and the Powers of Law Enforcement.


          Mark Morley, S.J.
          Loyola University Chicago               mmorley@orion.it.luc.edu
          Lewis-Bremner Residence
          6525 N. Sheridan Rd.
          Chicago, Il  60626                      21 December 1993


           In framing  a government which is to be
      administered by men over men, the great difficulty
      lies  in this:  you must  first enable  the government
      to control the governed; and in the next place oblige
      it  to control itself.
                                     Federalist #51 (Madison)


          Introduction

               The Constitution of the United States calls for a separation
          of  powers  between  the  executive,  legislative,  and  judicial
          branches  of  the federal  government.  The  boundaries of  these
          powers have  been in  contention since their  inception over  two
          hundred  years  ago. One  of the  current  battle grounds  is the
          Fourth  Amendment.1 In  recent decades  the advent  of electronic
          communications  has   necessitated   a  balancing   act   between
          individual privacy and government surveillance. Over sixty  years
          ago  the  Supreme Court  heard its  first  case dealing  with the
          telephone and  decided it  had no constitutional  jurisdiction to
          place  restrictions  upon law  enforcement  wiretapping.2  In the
          1960s  the Supreme Court began to  overturn its previous position

                              
          ____________________

               1The  right of  the people  to be  secure in  their persons,
          houses,  papers, and  effects, against unreasonable  searches and
          seizures, shall not be violated, and no warrants shall issue, but
          upon  probable  cause,  supported  by Oath  of  affirmation,  and
          particularly describing the place to be searched, and the persons
          or things to be seized.

               2Olmstead v. United States, 277 U.S. 438 (1927).

                                          1












          in  favor of  protecting individual  privacy.3 This  decision was
          representative  of a transition from a moderate to a more overtly
          political  Supreme  Court.  As   the  Supreme  Court  effectively
          extended  its   powers,  Congress   responded   with  the   first
          legislation drafted to  restrict electronic  surveillance by  the
          Executive.4  Inevitably,  communication  technologies   like  the
          telephone began to combine with innovative computer technologies,
          and  the protection  of privacy  afforded by  these laws  quickly
          became  antiquated. In the  1980s Congress attempted  to catch up
          with technological change by implementing a new privacy act.5
               These  developments clearly  indicate that Congress  and the
          Supreme  Court  have  tended   to  perceive  the  advancement  of
          communication  technologies as  a threat  to  individual privacy.
          Therefore, they have tried  to protect citizens from surveillance
          by  intrusive  law  enforcement  agencies. In  other  words,  the
          concern of Congress and the Supreme Court has  been to maintain a
          balance between civil liberties and the powers of the Executive.
               While  Congress was  enshrining civil rights,  the Executive
          concerned itself  with enforcing the law  and protecting national
          security.  Consequently,  its   surveillance  capabilities   have
          continued to expand in step with the advancement of communication
          technologies. Moreover, it has tried to maintain control over the
          development  of  cryptology  in  order  to  safeguard  classified
          information.   In   recent   years,  however,   the   advent   of
          microcomputers along with  sophisticated encryption software  has
          placed the ability to  secure privacy in the hands  of individual
          citizens. In  other words,  the technological tables  have turned
          such that individual privacy can be protected without recourse to
          the civil rights legislated by Congress and upheld by the Supreme
          Court.  As a  result,  the Executive  no  longer sees  cryptology
          simply  as  a  means  to  safeguard  national  security.  On  the
          contrary,   since  cryptology  in  the  private  sector  inhibits
          government  surveillance, it is perceived as a threat to national
          security. In order to maintain the surveillance capabilities that
          have  become  indispensable  to  law  enforcement,  the  National
          Security Agency is currently  seeking ways to regulate cryptology
          in the private sector.
               Thus, Congress  finds itself  pressured by the  Executive to
          grant the power  of law enforcement explicit  priority over civil
          liberties.  However,  any new  legislation must  stand up  in the
          Supreme  Court to an interpretation of  the Fourth Amendment that
          has come to endorse a right to privacy. Such an abrupt turning of
          the legislative tide  reveals the interests of all three branches
          of  the  federal  government.   In  particular,  it  exposes  the
                              
          ____________________

               3Katz v. United States, 389 U.S. 347 (1967).

               4Title  III of the Omnibus Crime Control and Safe Street Act
          of 1968.

               5Electronic Communications Privacy Act of 1986.

                                          2












          political character of the Supreme Court.
               According  to legal  theorists  known as  originalists,  the
          Framers of the  Constitution never intended the  Supreme Court to
          play a role  in American  politics. In other  words, judges  must
          interpret  the Constitution without bias to  the extent that they
          refrain  from adjudication when the law does not directly address
          the  matter  at hand.  If  non-elected officials  move  past this
          boundary,  they  step  into  the  rightful  jurisdiction  of  the
          legislature and  inappropriately upset the balance  of powers. In
          the  extreme view,  the justices of  the Supreme  Court corrupted
          their  powers when  they  jumped on  the  civil rights  political
          wagon.
               According to legal theorists known as activists, the Supreme
          Court  cannot act  in  a neutral  manner.  Even to  refrain  from
          adjudication is to take a political stand. Once the Supreme Court
          began to advocate  civil rights it exposed its political function
          such  that  it can  never return  to  its mythical  legal purity.
          Rather  than pretending to  be unbiased, judges  must address the
          injustices   embedded   in  social   structures.   Yet  activists
          themselves are  divided between  a liberal interpretation  of the
          law which is inherently conservative and a radical interpretation
          which calls into question the legitimacy of legal institutions.
               Individual  privacy versus  government surveillance  is only
          one among  many Constitutional controversies which  highlight the
          current legitimation crisis of the Supreme Court. Perhaps what is
          unique to this particular issue  is the role technological change
          has played in swiftly expanding and then  quickly challenging the
          protection of the Fourth  Amendment. In this essay we  will trace
          the technological development  of electronic communications along
          with the corresponding legal developments  in order to unmask the
          decisive political role of  the Supreme Court. In  particular, we
          will  be focusing  on  the developments  which  have led  to  the
          current   controversy   regarding   electronic   mail   and  data
          encryption.

          The Supreme Court and Electronic Surveillance

               Physical intrusion  by law  enforcement agents was  the only
          means  of "search and seizure" available to the government at the
          time the Constitution was  drafted. The Fourth Amendment requires
          that  agents  obtain a  warrant before  a  search may  be legally
          conducted.  In  order  to  protect  citizens from  "unreasonable"
          intrusion, a warrant must be based upon probable cause, issued by
          a magistrate, and executed within a time limit. Moreover, it must
          specify the place to be searched and the objects to be seized.6
               The  question  of government  wiretapping  under the  Fourth
          Amendment was first addressed by the Supreme Court in Olmstead v.
                              
          ____________________

               6See L.A.  Wintersheimer, Privacy  Versus Law  Enforcement -
            ___
          Can the Two  Be Reconciled? (Cincinnati Law Review  1988, 57:315-
          320).

                                          3












          United States.7  Evidence against the defendants  in Olmstead was
          obtained by intercepting telephones messages of the  defendants.8
          The interception was  achieved by inserting small  wires into the
          ordinary telephone  wires without any physical  trespass into the
          defendants'  property.9 The  defendants claimed  that the  use of
          evidence obtained in this manner violated the Fourth Amendment as
          an   unreasonable  search  and   seizure.10  The  Olmstead  Court
          interpreted  "search  and  seizure"  to entail  only  a  physical
          intrusion.11  Since  the  interception   in  this  case  did  not
          involve a physical  trespass, the  Court held that  there was  no
          Fourth Amendment  violation. Hence,  wiretapping was held  not to
          constitute   a   search   and   seizure.12    By   employing   an
          interpretation  of  the  Constitution which  sought  the original
          meaning  of legal terms, the Olmstead Court decided not to extend
          the protection  of  the  Fourth  Amendment  to  visual  or  aural
          searches  which   do  not   entail  a   physical  entry  of   the
          premises.13  In  fact,  the   Court  stated  that  extending  the
          meaning  of  the  term  "search  and  seizure"   to  include  the
          interception of telephone  conversation by  means of  wiretapping
          could only be made by direct legislation from Congress.14
               The same principles  were applied by the  Supreme Court once
          again  in  Goldman  v.  United  States.15 In  this  case  federal
          agents used an amplifying  device to monitor conversation through
          a wall. The Court  ruled that, despite the trespass  of adjoining
          property, there was  no violation of  the Fourth Amendment  which
          would make  the information  obtained inadmissible. It  should be
          note that  the Court refused to grant the defendant a claim to an
          expectation of privacy.16
               In Silverman v. United  States, however, the government used
          a microphone which penetrated a  hole in the wall of a  row house
          to an adjoining heating duct in the defendant's home. The Supreme
                              
          ____________________

               7277 U.S. 438 (1928).

               8Id. at 455.
                ___

               9Id. at 456.
                __

               10Id. at 457.
                 __

               11Id. at 464.
                 ___

               12Id. at 466.
                 ___

               13Id. at 464-65.
                 __

               14Id. at 465-466.
                 ___

               15316 U.S. 129 (1942).

               16Id. at 134-135.
                 __

                                          4












          Court  held  that this  constituted  a  physical intrusion  which
          violated  the Fourth  Amendment.17 Silverman  may be viewed  as a
          weakening of the Olmstead  decision in so far  as the agents  did
          not actually step foot into the defendant's premises.
               In  Berger v. New  York, the Supreme  Court held  that a New
          York  statute  regulating  electronic  surveillance  violated the
          Fourth  Amendment.18  The Court's  decision  was  based upon  the
          technical deficiencies of the procedures outlined for obtaining a
          warrant. In fact, the statute's requirements for a warrant lacked
          the particularity of the crime, a description of the things to be
          seized, and  the notification  of the parties  involved.19 Unlike
          previous cases, however,  physical intrusion  was not  considered
          the  crucial  factor for  determining a  violation of  the Fourth
          Amendment. It would seem  that the Court could have ruled that no
          warrant  was required provided there was no physical trespass. By
          striking down  a statute regulating  electronic surveillance  the
          Court moved one step closer toward an extension of the  breath of
          the  Fourth Amendment. Although  the Court chose  not insist upon
          the  Constitutional need  for a  warrant, it  did judge  that new
          legislation regulating warrants  for electronic surveillance must
          meet the same requirements as old legislation regulating physical
          intrusions under the Fourth Amendment.
               Less  than a year later, however,  Olmstead was overruled by
          Katz  v. United States.20  In this case  the government installed
          a recording device to the exterior of a telephone booth which was
          regularly used  by the defendant.21  The Supreme Court  held that
          such surveillance by the government constituted an illegal search
          and  seizure  because there  was not  probable  cause to  bug the
          telephone booth.22  The government tried to  justify its activity
          by pointing out  that there  was no physical  penetration of  the
          telephone booth.23  While the Court acknowledged  that the Fourth
          Amendment was thought at one time to apply only to the search and
          seizure  of tangible property,  it openly departed  from a narrow
          interpretation and  extended the meaning of  "search and seizure"
          to  include the recording of oral statements. The Court based its
          decision upon  the principle  that the Fourth  Amendment protects

                              
          ____________________

               17Id. at 506-512.
                 ___

               18388 U.S. 41 (1967).

               19Id. at 58-60.
                 ___

               20389 U.S. 347 (1967).

               21Id. at 348.
                 ___

               22Id. at 353.
                 ___

               23Id. at 352.
                 ___

                                          5












          people not places.24  Thus, it  refused to make  an exception  to
          the requirement of probable  cause even though no tangible  goods
          were seized.25  Consequently, the  Court disregarded  the grounds
          based upon physical intrusion and developed  its own principle: a
          warrant  is required  whenever  the individual  has a  reasonable
          expectation  of privacy.26 In  order to appreciate  the break the
          Katz Court made from  previous rulings on electronic surveillance
          we need to look at the opinion of the court (delivered by Justice
          Stewart) in some detail.
               In  particular,  we see  that  the Katz  Court  extended the
          boundary of Fourth Amendment  protection by means of an  abstract
          notion of privacy which was  unacceptable in prior decisions. The
          emphasis  on privacy as distinct from place becomes clear when we
          note  that the Court rejected the  defendant's formulation of the
          constitutional issues.  The defendant  based his  questions upon:
          (1) whether  a telephone  booth  is a  constitutionally protected
          area, and (2) whether  physical penetration of a constitutionally
          protected  area is necessary in order to claim a violation of the
          Fourth  Amendment.27  Firstly,  the  Court  rejected  the  phrase
          "constitutionally  protected area."  Secondly, it  held  that the
          Fourth   Amendment   cannot   be   interpreted   as  a   "general
          constitutional `right to privacy`."  It qualified this by stating
          that, although  the Fourth Amendment  protects individual privacy
          against specific  kinds of  government intrusion,  its protection
          goes  further  than  the realm  of  private  property.  As for  a
          person's "general right  to privacy," such protection  is left to
          the law of the individual States. Having made this qualification,
          the Court proceeded  to develop a  notion of a  right to  privacy
          applicable  to the  Fourth Amendment.  The issue  is no  longer a
          matter  of  protecting  places.  What  an  individual  "seeks  to
          preserve  as private, even in  an area accessible  to the public,
          may be  constitutionally protected."28 When someone  steps into a
          telephone  booth and closes the  door there is  an expectation of
          privacy. While the  Olmstead Court considered an extension of the
          boundary of protection  to be outside its  jurisdiction, the Katz
          Court held that a more narrow definition of privacy would neglect
          the "vital  role that the  public telephone  has come to  play in
          private  communication."29 In  effect,  the  Katz Court  extended
          the  boundary of the Fourth Amendment by shifting the debate from
                              
          ____________________

               24Id. at 353.
                 ___

               25Id. at 357-358.
                 ___

               26Id. at 359.
                 ___

               27Id. at 349-350.
                 ___

               28Id. at 350.
                 ___

               29Id. at 352.
                 ___

                                          6












          the  realm  of private  property to  the  more abstract  realm of
          personal privacy.  Hence, it  was able  to  rule that  government
          recording  of the  defendant'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."30
               Thus,  the Katz Court was able to openly depart from what it
          called  Olmstead's  "narrow  view"  and claim  that  the  "Fourth
          Amendment  governs not only  the seizure  of tangible  items, but
          extends as well  to the recording  of oral statements,  overheard
          without  any  `technical   trespass  under  ...   local  property
          law.'"31 Having  established  that electronic  surveillance  does
          require a warrant,  the Court proceeded  to spell out  guidelines
          for  obtaining  a  warrant.  Since  electronic  surveillance  was
          treated  as if it constituted a physical intrusion, no exceptions
          were made to the requirements for a warrant given in  the text of
          the Fourth Amendment and developed in common law.
               In presenting  its guidelines,  the  Court was  particularly
          concerned that electronic surveillance not be left merely to  the
          discretion of  law enforcement  agents. Yet it  explicitly stated
          that, although  a situation involving "national  security" may be
          an exception to the requirement of prior authorization, this case
          did not  lend itself  to such a  question.32 It  is worth  noting
          that  Justices Douglas and Brennan stated in a concurring opinion
          that  the  Executive  Branch,  including the  President,  has  no
          grounds to  engage in electronic surveillance  without a warrant,
          even in matters of national security.33
               In  order to  appreciate  the significance  of the  activist
          interpretation  employed in  the  decision of  Katz,  we need  to
          examine  the  concurring  opinion   of  Justice  Harlan  and  the
          dissenting opinion of Justice Black.
               In his  concurring opinion, Justice Harlan  pointed out that
          no longer associating privacy with place requires a rule for what
          constitutes protection of people. In his analysis he demonstrates
          that the Court has established a twofold requirement for privacy:
          (1)  that   a  person  have  exhibited   an  actual  (subjective)
          expectation  of privacy, and (2) that the expectation be one that
          society  is  prepared  to  recognize  as  "reasonable."34  It  is
          significant that  such a rule appears no where in the text of the
          Constitution. In fact, this is precisely the kind of judgment the
          Olmstead  Court refused  to  make because  it considered  such an
                              
          ____________________

               30Id. at 353.
                 ___

               31Id. at 353.
                 ___

               32Id. at 359.
                 ___

               33Id. at 359-360.
                 ___

               34Id. at 361.
                 ___

                                          7












          extension of the meaning of "search and seizure" to be the proper
          jurisdiction of  Congress. In making this  rule explicit, Justice
          Harlan does not  concerned himself with upsetting  the balance of
          powers in the branches of the federal government.
               In  his dissenting  opinion, Justice  Black claims  that the
          decision  rendered by  the Katz  Court  effectively amounts  to a
          revision of the Fourth Amendment. When we examine his argument we
          see  that  Black employs  an  originalist  interpretation of  the
          Constitution which  cannot be reconciled with  an activist stand.
          The  philosophy  of  original  understanding is  based  upon  the
          neutral  application  of   a  legal  principle,   which  includes
          neutrality in  deriving, defining, and applying  the principle. A
          judge is to seek the  original understanding of the words  in the
          text of the  Constitution in  order that the  Court may remain  a
          legal  rather than  a political  institution. Hence,  originalism
          holds  that  the Court  is  not free  to  define the  scope  of a
          principle as  it sees fit, for the  outcome of the decision would
          then be based upon grounds that are not contained in the original
          understanding of the principle it purports to apply. Such grounds
          cannot come from the  legislature, and hence, must come  from the
          personal preferences of the justices.35
               Justice Black  bases his dissenting decision  on the meaning
          of the term "eavesdropping." According to his analysis,  the Katz
          Court incorrectly defined  "wiretapping" as a form of  search and
          seizure rather than defining it more accurately as "eavesdropping
          carried on  by electronic means."36 Black  interprets the Court's
          opinion as opening the door for the enactment and the enforcement
          of  laws  regulating  wiretapping   in  accord  with  the  Fourth
          Amendment despite the obstacles  the Berger Court set in  the way
          of wiretapping laws.  In order to appreciate  these obstacles, we
          must recall that the Berger Court demanded the same procedure for
          obtaining a  warrant for electronic surveillance  as for physical
          intrusion. Yet a warrant for search and seizure normally requires
          that the named  parties be  notified. In the  case of  electronic
          surveillance,  however, such a  requirement obviously defeats the
          effectiveness  of the  method of  intrusion. Although  Black held
          that such obstacles to legislation regulating wiretapping must be
          removed, the failure of  the Court to make a  distinction between
          "search and seizure" and "eavesdropping" incorrectly extended the
          Fourth Amendment to include wiretapping.
               In arguing  for his opinion, Black  upholds two convictions:
          (1) the words of  the Fourth  Amendment do not  bear the  meaning
          given them by the Court's decision, and  (2) it is not the proper
          role of the Supreme Court to "rewrite the Amendment  in order `to
          bring in  it in harmony with  the times` and thus  reach a result
                              
          ____________________

               35For a thorough presentation of originalist approach to the
          Constitution see Chapter 7  of, R. Bork, The Tempting  of America
                                               ________________________
          (New York: The Free Press, 1990).

               36389 U.S. 364.

                                          8












          that many people  believe to be desirable."37   Thus, we see that
          Black  is  employing  two  fundamental  tenets  of   originalism:
          (1) justices must seek the  original meaning of the words  of the
          text,  and (2) justices  are  not  to  rewrite  the  scope  of  a
          principle where the Constitution is silent for this is the proper
          role of the democratically elected legislature. After quoting the
          entire Fourth  Amendment,  Black establishes  that the  "Framers'
          purpose"  was  to protect  tangible  things  and not  to  protect
          conversation which cannot be searched or seized  according to the
          normal meaning  of such words. Moreover, the  Amendment refers to
          things which must be described for they are already in existence.
          Yet it  is impossible to  describe a future  conversation. Hence,
          Black  concludes  that the  Fourth  Amendment does  not  apply to
          eavesdropping. Although  wiretapping was  unknown at the  time of
          the  framing of the  Bill of Rights,  eavesdropping certainly was
          practiced  and  could  of  being  incorporated  into  the  Fourth
          Amendment.38
               Black proceeds by giving an overview of  Supreme Court cases
          dealing  the Fourth  Amendment's applicability  to eavesdropping.
          Thus, he attempts to show that his opinion is consistent with the
          Court's previous decisions, in  particular, with all the relevant
          cases  from Olmstead through to  Berger. He concludes  that he is
          simply applying the scope of the Fourth Amendment which the Court
          has  traditional  followed and  that the  Katz  Court has  made a
          distinctive  break  in order  to  include  eavesdropping.39 In  a
          footnote,  Black  states  that  "the Court  is  promulgating  new
          doctrine  instead   of  merely   following  what  it   `has  long
          held.`"40
               According   to  Black,   the  Court   has  decided   that  a
          conversation can be  "seized."41 In light of  his conviction that
          it  is  not  the  place  of   the  Supreme  Court  to  "keep  the
          Constitution up to date," he claims that  the Court does not have
          the  power to  give new  meaning to  words, especially  a meaning
          which  the  words  to do  have  in  "common  ordinary usage."  To
          exercise such power  is to  turn the Court  into "a  continuously
          functioning constitutional  convention."  Black points  out  that
          this  shift in the Court's  policy happened only  recently and is
          coincident  with   its  "referring  incessantly  to   the  Fourth
          Amendment  not so much as a law against unreasonable searches and
          seizures as one to protect an individual's privacy." Moreover, he
          considers  this  an  arbitrary   substitution  of  the   "Court's
                              
          ____________________

               37Id. at 364.
                 ___

               38Id. at 365-366.
                 ___

               39Id. at 386-389.
                 ___

               40Id. at 372 (footnote).
                 ___

               41Id. at 372.
                 ___

                                          9












          language"  for  "Constitution's language."42  As  another example
          of a substitution in favor  of a right to privacy,  Black recalls
          his dissenting opinion in Griswold  v. Connecticut. There he held
          that  the Constitution does not provide a "right to privacy" that
          protects  individuals  from laws  which  compromise  privacy. The
          conclusion of his dissenting opinion in Katz states:
               No general  right is created by  the [Fourth] Amendment
               so  as to give this  Court the unlimited  power to hold
               unconstitutional  everything   which  affects  privacy.
               Certainly  the  Framers,   well  acquainted  with   the
               excesses of governmental power, did not intend to grant
               this Court such omnipotent lawmaking authority as that.
               The history of governments  proves that it is dangerous
               to freedom to repose such powers in the courts.43
          Given Black's originalist position,  it is understandable that he
          could not be reconciled  with the Court's decision to  extend the
          protection of the Fourth Amendment to recording and wiretapping.
               Although  Black recognizes  the legitimate need  to regulate
          wiretapping,  he believed  that  the obstacles  presented by  the
          Berger  Court should have been  dealt with in  another manner. In
          particular, he is  concerned with the Court's  adoption of rights
          discourse. Rather than upholding a right  to privacy by expanding
          the  meaning of  "seizure"  to include  conversation,  presumably
          Black felt that  the Court  should have deferred  to Congress  in
          order that the law be updated by amendment to the Constitution.
               During the years following the decision in Katz, the Supreme
          Court  continued to uphold  civil rights,  such as  an individual
          right to privacy,  in the face  of technological developments  in
          other  domains. In fact, it  can be shown  that the Supreme Court
          has gradually  moved from policies  which tolerate  technological
          advances at the  expense of individual  rights to policies  which
          put  decisions in  the  hands of  individuals. In  the nineteenth
          century, the Court upheld statutes which called for the universal
          vaccination of citizens. It  also protected laws which authorized
          the  government to  sterilize criminals.  In the  early twentieth
          century, however, the Court  opposed sterilization on the grounds
          that basic human  rights outweigh any  potential harm to  society
          that  may come from the children of criminals. In recent decades,
          computerized data  banks  have  enabled  governments  to  compile
          extensive records on citizens without their knowledge or consent.
          While  upholding  the  need of  the  state  to  compile data  for
          specific  purposes,  the  Court  has  insisted   that  reasonable
          measures be taken to  maintain confidentiality. Just over fifteen
          years  ago,  the Court  decide that  a  woman's right  to privacy
          outweighs  the state's  interests  in  cases regarding  abortion.
          Finally,   with  the   recent  advancements   in  life-sustaining
          technologies,  the Court  has  upheld the  individual's right  to
                              
          ____________________

               42Id. at 373.
                 ___

               43Id. at 374.
                 ___

                                          10












          withhold treatment despite a conflict with the traditions of  the
          medical  profession.  In  general,  the  Court  has  displayed  a
          cautious attitude toward new  technologies in favor of individual
          rights. In  particular, the Court has  perceived the government's
          widespread use of computer technologies as a threat to individual
          privacy. Underlying these decisions, however, is a constitutional
          philosophy  which  favors  individual   rights  in  the  face  of
          technological change.44

          Congress and the Regulation of Government Surveillance

               Congress responded to  the decision of the  Supreme Court in
          Katz with Title III of the Omnibus Crime Control and Safe Streets
          Act of 1968.45 This  legislation was enacted to regulate  the use
          of  electronic  surveillance  by  law  enforcement  agencies.  By
          effectively   revising  the   Fourth  Amendment   to  incorporate
          wiretapping, the Court in Katz opened the way for the legislature
          to enact regulations without recourse  to the lengthy process  of
          constitutional amendment. Title III of Omnibus was only a part of
          an act of Congress which found  that "the high incidence of crime
          in  the  United States  threatens  peace,  security, and  general
          welfare of the  Nation and its  citizens."46 While attempting  to
          find new ways to  "prevent crime," Congress tried to  balance the
          privacy  interests of the individual with the legitimate means of
          law enforcement by the state.
               Title III  was the first comprehensive  piece of legislation
          to   address  the   issue   of   communications   privacy.47   In
          particular, it protected only two types of communications against
          electronic  eavesdropping: (1)  telephone  conversations and  (2)
          face-to-face   communication.48   The    law   established    the
          requirement of a  warrant for  the interception of  wire or  oral
          communications  under circumstances  where there is  a reasonable
          expectation of  privacy.49 It  also laid out  specific procedures
          for  obtaining a  warrant, including  restrictions  to electronic
          surveillance which  limit its  use to  certain types  of criminal
                              
          ____________________

               44See D.  Jones Merritt,  The Constitution  in  a Brave  New
             ___                     __________________________________
          World: A Century of  Technological Change and Constitutional Law,
      ________________________________________________________________
          Oregon Law Review, Vol. 69, Num. 1 (1990).

               45 (Title III) 18 U.S.C.    2510-2520 (1968).

               4618 U.S.C. Title I

               47See   R.  W.   Kastenmeier,  D.   Leavy,  and   D.  Beier,
             ___
          Communications Privacy: A  Legislative Perspective, Wisconsin Law
      __________________________________________________
          Review 1989:715.

               4818 U.S.C.  2516.

               49Id.  2510.
                 ___

                                          11












          investigations.  In  this   way,  Congress  enacted   legislation
          designed  to  meet  the technical  demands  of  the  Berger Court
          regarding probable cause and to address the political concerns of
          the Katz Court regarding the protection of individual privacy.
               In a  short period of  time, technological change  proved to
          make Title III  inadequate. By restricting itself specifically to
          telephone wiretapping,  its regulations could not  be extended to
          new  communication  technologies  like  cellular  telephones  and
          electronic mail. As a result,  these communications did not  fall
          under   the   Fourth  Amendment's   protection   against  illicit
          government  surveillance. Hence, Title III was criticized for its
          failure to anticipate technological advancement.
               In order to address  the inadequacies of Title III, Congress
          instituted the  Electronic  Communications Privacy  Act  of  1986
          (ECPA).50 Its  primary  concern was  to  safeguard the  right  of
          individual privacy from erosion due to technological advancement.
          Hence,   it  extended   Fourth   Amendment   protection  to   new
          communication  technologies  such  as  cellular  telephones, data
          transmissions,  and  electronic   mail.  Unlike  the  design   of
          Title III,   Congress  tried   to  anticipate   potential  abuses
          associated with  developments  such as  multi-media  technologies
          which would fall under  more than one classification  of service.
          The  ECPA also expanded the  scope of sites  protected to include
          not only  public carriers  such as telephone  companies but  also
          private  services  such  as  corporate computers.  Prior  to  the
          enactment  of the ECPA, no federal statute addressed the issue of
          data  interception.  With  the  ECPA, electronic  mail  and  data
          transmissions   are  protected  in   manner  that  parallels  the
          protection   of   voice   communications.51   Hence,   government
          interception of  these types  of communication is  only permitted
          under  the restrictions  of  a warrant.  However, the  procedures
          differ  from  those  applicable  to  telephone  wiretapping.  For
          example,  court  authorization  for  data   interception,  unlike
          wiretapping,  can   be  based  upon  suspicion   of  any  federal
          felony.52
               In  addition  to  technological   change,  Congress  had  to
          consider political factors in drafting the ECPA. Protecting civil
          rights  is  not  without  its  difficulties.  During  the  Reagan
          Administration,  bills supported  by the Justice  Department were
          favored  while   ones  opposed   by  it  were   likely  defeated.
          Consequently, the  ECPA needed the  support of the  Department of
          Justice in order to be signed by the President. However, the ECPA
          bill   was  given   very   strong   support  from   corporations.
          (Communications providers  wanted to ensure  their customers that
                              
          ____________________

               5018 U.S.C.  2510-2520 (The ECPA is actually an amendment to
          Omnibus which leaves much of Title III intact).

               51Id.  2510(12).
                 ___

               52Id.  2518(3).
                 ___

                                          12












          the  new technologies  would  be  protected.)  As a  result,  the
          success  of the ECPA depended upon the support of civil liberties
          groups,  business interests,  and law  enforcement officials.  By
          enacting  the ECPA,  Congress not  only preserved  existing civil
          liberties  but  also  expanded  protection of  communications  to
          include government and private sector interception of data.53

          The Executive and the Powers of Law Enforcement

               The Constitution  of the  United States vests  the President
          with  the powers of the Executive, including the power to enforce
          the  laws.54  At the  time  the  Constitution was  ratified,  the
          Fourth Amendment was included  in order to protect  citizens from
          the unreasonable search and seizure of their goods  by government
          agents. With  the development of communication  technologies, the
          Executive  has  expanded  its  capabilities  to  engaged  in  the
          surveillance of  citizens. In  recent decades, the  Supreme Court
          has heard many cases which bear witness to the great interest law
          enforcement agencies have  in electronic surveillance.  Moreover,
          the  civil rights  movement bears  witness to the  great interest
          citizens  have in  preventing their  government from  becoming an
          Orwellian  state.  After   decades  of  unrestricted   electronic
          surveillance,  the Court's  decision in  Katz finally  opened the
          door  for the first legislation to regulate wiretapping under the
          Fourth  Amendment.  With  Title III  of  Omnibus  and  the  ECPA,
          Congress  placed limits upon the  powers of the  Executive in the
          name of an individual right  to privacy. Legal restrictions  were
          deemed  necessary  in  order  to  protect  individuals  from  the
          ceaseless surveillance of Big Brother.
               Given  that  the  ECPA  was designed  to  anticipate  future
          technological developments, it would  seem that a lasting balance
          between individual privacy  and government surveillance  has been
          struck.  Yet  the ECPA  did  not  anticipate  the development  of
          private  sector cryptology  along with  the growth  of electronic
          mail   services.   These   technological    developments   enable
          individuals to ensure the  privacy of their communication without
          recourse  to civil  rights legislation. A  warrant may  grant the
          power to access personal data, but it is  powerless to crack data
          encryption.  After  years of  negotiating  restrictions upon  the
          legal  powers  of  the   Executive  in  the  wake   of  expanding
          communications  technologies, law  enforcement agencies  now find
          themselves seeking restrictions upon the technological  powers of
          individuals in the wake of expanding civil rights.
               Government interest in restricting cryptology dates back  to
                              
          ____________________

               53See Communications Privacy, pp. 733-737.
                 ___

               54Article II   2 declares "The President  shall be Commander
          in Chief of the Army  and Navy of the United States ...  ." while
           3 states  "... he shall  take Care that  the Laws be  faithfully
          executed, ... ."

                                          13












          legislation banning the export of cryptologic devices and related
          research.55 At  that time,  the government  saw  cryptology as  a
          means  to  protect  classified  information.  These  laws  placed
          cryptology  on  a list  of  munitions, giving  the  President the
          authority  to  regulate  its  development  and  deployment.56  In
          recent decades, the National Security Agency (NSA) has been given
          executive  responsibility to  regulate cryptologic  standards for
          classified and national security information. It develops its own
          cryptosystems  and appraises publicly  available cryptosystems in
          order  to  offers  private  sector corporations  a  guarantee  of
          security. In  1977, the NSA endorsed the Data Encryption Standard
          (DES)  issued  by the  National  Bureau  of Standards  (NBS)  for
          nonclassified  government  and   private  sector   cryptosystems.
          However,  recent  technological   developments,  especially   the
          widespread  growth of  powerful  private  sector computers,  have
          forced the  NSA  not to  renew  its guarantee.  In light  of  the
          inadequacy   of  DES,  the  NSA  made  plans  to  issue  its  own
          cryptosystem  for both government and private sector information.
          It argued that cryptologic research, development, and use by  the
          private sector threatens government security. In other words, the
          NSA is  seeking to  control all  cryptology, even  private sector
          cryptosystems,  due to  the  reliance of  national security  upon
          economic strength. To this end, the Reagan Administration drafted
          the   National  Security   Decision  Directive   145.57  It   was
          withdrawn, however,  after  being  severely  criticized  for  the
          imbalance  of authority  it gave  to the  President over  private
          sector information.58
               In 1987,  Congress enacted  the Computer Security  Act which
          transferred  the   regulation  of  cryptology   for  unclassified
          information to the National Institute of Standards and Technology
          (NIST).  Nevertheless,  the  NSA under  the  Bush  Administration
          continued   to  forge   ahead   in  its   attempts  to   regulate
          cryptosystems.  In  1991  it  announced the  development  of  the
          Digital Signature Standard (DSS), and proposed that its system be
          used for private sector security. At that time the NIST was about
          to recommend  a encryption method known  as Rivest-Shamir-Adelman
          (RSA), an  algorithm patented  by the Massachusetts  Institute of
                              
          ____________________

               55The Mutual Security Act of 1954.
 ________________________________

               56See  C. B. Escobar,  Nongovernmental Cryptology and Nation
             ___                  _____________________________________
          Security:   The  Government   Seeking   To   Restrict   Research,
      ________________________________________________________________
          Computer/Law Journal, Vol. IV (1984).

               57National  Policy  On   Telecommunications  and   Automated
          Information   Systems   Security,   National  Security   Decision
          Directive (Sept. 17, 1984).

               58See R.  A. Franks, The  National Security  Agency and  Its
             ___                _______________________________________
          Interference  With Private  Sector  Computer Security,  Iowa  Law
      _____________________________________________________
          Review, 1015 (1987).

                                          14












          Technology. Within a few months, however, NIST endorsed the  DSS.
          Congress responded  by establishing the  Computer System Security
          and  Privacy Board which called for a  national debate on the use
          of cryptology.59
               In  April  1993, the  Clinton  Administration  announced its
          approval  of the Clipper  Chip, a cryptologic  device designed by
          engineers  at the NIST for both voice and data communications. It
          is  intended for  use by  the private  sector in order  to secure
          communications while  at the  same time enabling  law enforcement
          agencies to conduct surveillance. In other words, the device aims
          at maintaining  the government's ability to  eavesdrop on private
          communications  in the  face  of private  sector cryptology  that
          threatens  current   law  enforcement  practices.  The  plan  for
          implementing  the Clipper Chip  includes legislation  which would
          provide protection  under the  Fourth Amendment.  Presumably, law
          enforcement  agents  would require  a  warrant to  be  granted in
          accordance  with  the  same restrictions  currently  placed  upon
          wiretapping  and  the   interception  of  electronic   mail.  The
          ramifications  of  this  controversial  proposal,  including  its
          constitutional implications, are presently under debate.60

          Conclusion

               No  one denies the necessity of maintaining the integrity of
          the Constitution, especially the  protection afforded by the Bill
          of  Rights. Yet  disputes  do arise  over  whether it  should  be
          accomplished without upsetting the  balance of powers between the
          executive,  legislative, and  judicial branches.  In the  case of
          protecting individuals from unreasonable electronic surveillance,
          we  have  seen that  it  was  the Supreme  Court  which took  the
          initiative. By interpreting the  meaning of the term  "search and
          seizure"  to include the seizure of  conversation, the Katz Court
          expanded  the   breadth  of  the  Fourth   Amendment  to  include
          electronic  surveillance.  From an  originalist  perspective, the
          Court gravely upset the balance  of powers by deriving, defining,
          and applying a principle  of privacy not explicitly found  in the
          text of the Constitution. From an activist perspective, the  Katz
          Court  rightly took a  biased stand in order  to bring the Fourth
          Amendment  into accord  with the technological  circumstances and
          political climate of the day.
               After  the  Supreme  Court   made  the  first  move  towards
          protecting  individual privacy,  Congress quickly  responded with
          legislation designed  to restrict electronic surveillance  by the
          Executive. According to originalists,  the political stand of the
          Court in  support of  civil rights was  a threat  to freedom.  In
                              
          ____________________

               59See J.  A.  Adams, Cryptography=privacy?,  IEEE  Spectrum,
             ___                _____________________
          August 1992, pp. 29-35.

               60See  L.  Arbetter,  The  Clipper  Chip  Debate,   Security
             ___                 __________________________
          Management, August 1993, p. 8.

                                          15












          other words, by  exerting their power  into the political  realm,
          non-elected justices  disregard the proper  authority of  elected
          members of Congress. Yet  in Katz we did not witness the collapse
          of  democracy. On the contrary,  we saw the  separation of powers
          produce a  prompt response by  Congress, a response  that checked
          the powers of the Court and the Executive. Although the adherence
          to  original  meaning defended  by  Justice Black  and others  is
          credible,  originalists  cannot  legitimately  claim  that  their
          method of  constitutional interpretation is  the only  acceptable
          approach  to adjudication.  They  demand that  the separation  of
          powers should  be clearly  defined. Yet  the  actual practice  of
          checks and  balances reveals that  the judiciary is  political by
          the  very  nature  of  the Constitution's  design.  Although  the
          Supreme  Court is the weakest of the  three branches, it has just
          enough  political power  to agitate  Congress and  the Executive.
          Even  when  the Court  refrains  from  adjudication, a  political
          message is sent. Such was the case when the Olmstead Court called
          upon Congress to legislate  protection from wiretapping under the
          Fourth Amendment.
               Nevertheless,   the   activist   method  of   constitutional
          interpretation  is not  without its  own difficulties.  After two
          decades of upholding  civil rights, the  Supreme Court now  finds
          itself facing unexpected technological circumstances and situated
          within a very  different political climate. At the  time Congress
          and the Court  endorsed a right  to privacy, individual  citizens
          lacked  the  technological means  to  protect  themselves against
          electronic surveillance. Thus, the law  was the only obstacle  to
          surveillance.  Today,  however,  private  communications  can  be
          established with a personal computer and sophisticated encryption
          software. Hence,  the Executive considers the  new technologies a
          threat to its  ability to enforce the law and  is taking measures
          to maintain  its electronic surveillance  capabilities. Moreover,
          Congress is becoming  less concerned about civil rights  and more
          concerned  about controlling the high  rate of crime.61 What will
          the Court do when it is  called upon to evaluate laws intended to
          protect  the "rights" of  law enforcement  agencies? How  will it
          maintain its credibility?
               The  Supreme   Court  will  eventually  have   to  face  the
          constitutionality of "crime control" statutes designed to augment
          the powers of  law enforcement  agencies. If the  Court takes  an
                              
          ____________________

               61In fact, the Senate  is currently debating over S.  618, a
          bill  "To  control and  reduce  violent  crime." Among  its  many
          provisions  designed to  increase  the power  of law  enforcement
          agencies is the following statute:
               Sec. 545. Cooperation  Of Telecommunications  Providers
               With Law Enforcement. It is  the sense of Congress that
               providers of electronic  communications systems  permit
               the  government to  obtain the  plain text  contents of
               voice,    data,    and   other    communications   when
               appropriately authorized by law.

                                          16












          originalist stand, it will  remain silent. If it takes  a liberal
          activist stand, it will pit the liberties of citizens against the
          powers of the state  in a battle over  civil rights. However,  if
          the Court takes  a radical  activist stand, it  will move  beyond
          "rights  discourse"  in  order   to  pressure  Congress  and  the
          Executive into addressing the vast disparity which is at the root
          of a considerable amount of crime. Under these circumstances, the
          Court  may  even  employ  its  political  power  to  instigate  a
          constitutional  convention  on  racial  and  economic  injustice.
          Nonetheless,  whichever  theory  of adjudication  it  chooses  to
          practice,  the Court's resolutions will inevitably have political
          repercussions.









































                                          17












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