tion of a conversation was a seizure.
The second of the Olmstead
holdings—where there is no physical trespass, there can be no search—fell
that same year. In Katz v. United States
(1967), the Court considered the case
of Charles Katz, who had used a pay
phone in Los Angeles to place illegal
bets in Miami and Boston. Without
obtaining a warrant, FBI agents placed
listening devices outside of the phone
booth and recorded Katz’ end of several conversations. The transcripts of
these conversations were introduced
during Katz’ trial, and presumably
played a role in his conviction. In response to his appeal, the Supreme
Court ruled that tapping phone calls
placed from a phone booth required a
warrant. The majority opinion explicitly overturned Olmstead, holding that
the Fourth Amendment “protects people, not places;” trespass was no longer
necessary for the Fourth Amendment
to be implicated.
Justice Harlan’s concurring opinion introduced a two-part test for determining whether the Fourth Amendment should be applied in a given
situation:
˲ ˲ The person must have exhibited
“an actual (subjective) expectation of
privacy;”
˲ ˲ This expectation is one that “society
is prepared to recognize as reasonable.”
Thus by 1967 Olmstead was completely reversed, and the Court was applying Fourth Amendment protection
to the content of telephone calls. However, the context of telephone and other electronic communication did not
receive the same level of protection.
Context. The distinction between
the content and context of electronic
communication is best understood
through the analogy of postal mail.
The content information is the letter itself—the written or typed communication generated by one party for the purpose of communicating with another
party. As with the content of a telephone call, letters are protected by a
series of rather strict regulations.a The
context information consists of the
information on the outside of the envelope, information used by the com-
a See Ex Parte Jackson, 96 U.S. ( 6 Otto) 727, 733
(1877); Walter v. United States, 447 U.S. 649,
651 (1980).
The surveillance
architecture
adopted for cellular
networks generates
a pool of data that
feeds into law
enforcement’s
and marketers’
desire for personal
information.
munication system to establish communication between the two parties.
In the case of the postal system, this
consists primarily of the mailing and
return addresses, but may also include
postmarks or other information that
accumulates in transit. In the case of
a cellular telephone call, context data
includes the number the caller dials,
the number from which the caller dials, the location of the caller, the time
of the call, and its duration.
Courts and legislatures have been
far less protective of context information than content. The basic rationale
is that the user understands context
information is needed to complete
the communication process, and
that in using the technology, context
information is freely given to the network. It follows that, according to the
courts, there is no reasonable expectation of privacy in this information,
and the Fourth Amendment is not implicated.
The key precedent is United States
v. Miller (1976), a case with far reaching implications for the public use of
a wide variety of communication networks. The case involved a modern-day bootlegger named Mitch Miller;
prohibition was not the issue, the focus was instead on the more mundane
matter of taxation. While putting out a
fire at Miller’s warehouse, firefighters
and police discovered 175 gallons of
whiskey that did not have the requisite
tax stamps. Investigators obtained,
without a warrant, copies of Miller’s
deposit slips and checks. The cancelled checks showed that Miller had
purchased material for the construction of a still. Miller was subsequently
convicted of possessing an unregistered still.
Miller appealed, claiming that his
Fourth Amendment rights had been
violated; the investigators should have
obtained a warrant before acquiring
his bank records. The Supreme Court
disagreed. Writing for the Court, Justice Powell stated that:
There is no legitimate “expectation of
privacy” in the contents of the original
checks and deposit slips, since the checks
are not confidential communications,
but negotiable instruments to be used
in commercial transactions, and all the
documents obtained contain only in-