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
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)
The Constitution of the United States calls for a
of powers between the executive, legislative, and
branches of the federal government. The boundaries of
powers have been in contention since their inception over
hundred years ago. One of the current battle grounds is
Fourth Amendment.1 In recent decades the advent of
communications has necessitated a balancing act
individual privacy and government surveillance. Over sixty
ago the Supreme Court heard its first case dealing with
telephone and decided it had no constitutional jurisdiction
place restrictions upon law enforcement wiretapping.2 In
1960s the Supreme Court began to overturn its previous
1The right of the people to be secure in their
houses, papers, and effects, against unreasonable searches
seizures, shall not be violated, and no warrants shall issue,
upon probable cause, supported by Oath of affirmation,
particularly describing the place to be searched, and the
or things to be seized.
2Olmstead v. United States, 277 U.S. 438 (1927).
in favor of protecting individual privacy.3 This decision
representative of a transition from a moderate to a more
political Supreme Court. As the Supreme Court
extended its powers, Congress responded with the
legislation drafted to restrict electronic surveillance by
Executive.4 Inevitably, communication technologies like
telephone began to combine with innovative computer
and the protection of privacy afforded by these laws
became antiquated. In the 1980s Congress attempted to catch
with technological change by implementing a new privacy act.5
These developments clearly indicate that Congress and
Supreme Court have tended to perceive the advancement
communication technologies as a threat to individual
Therefore, they have tried to protect citizens from
by intrusive law enforcement agencies. In other words,
concern of Congress and the Supreme Court has been to maintain
balance between civil liberties and the powers of the
While Congress was enshrining civil rights, the
concerned itself with enforcing the law and protecting
security. Consequently, its surveillance capabilities
continued to expand in step with the advancement of
technologies. Moreover, it has tried to maintain control over
development of cryptology in order to safeguard
information. In recent years, however, the advent
microcomputers along with sophisticated encryption software
placed the ability to secure privacy in the hands of
citizens. In other words, the technological tables have
such that individual privacy can be protected without recourse
the civil rights legislated by Congress and upheld by the
Court. As a result, the Executive no longer sees
simply as a means to safeguard national security. On
contrary, since cryptology in the private sector
government surveillance, it is perceived as a threat to
security. In order to maintain the surveillance capabilities
have become indispensable to law enforcement, the
Security Agency is currently seeking ways to regulate
in the private sector.
Thus, Congress finds itself pressured by the Executive
grant the power of law enforcement explicit priority over
liberties. However, any new legislation must stand up in
Supreme Court to an interpretation of the Fourth Amendment
has come to endorse a right to privacy. Such an abrupt turning
the legislative tide reveals the interests of all three
of the federal government. In particular, it exposes
3Katz v. United States, 389 U.S. 347 (1967).
4Title III of the Omnibus Crime Control and Safe Street
5Electronic Communications Privacy Act of 1986.
political character of the Supreme Court.
According to legal theorists known as originalists,
Framers of the Constitution never intended the Supreme Court
play a role in American politics. In other words, judges
interpret the Constitution without bias to the extent that
refrain from adjudication when the law does not directly
the matter at hand. If non-elected officials move past
boundary, they step into the rightful jurisdiction of
legislature and inappropriately upset the balance of powers.
the extreme view, the justices of the Supreme Court
their powers when they jumped on the civil rights
According to legal theorists known as activists, the
Court cannot act in a neutral manner. Even to refrain
adjudication is to take a political stand. Once the Supreme
began to advocate civil rights it exposed its political
such that it can never return to its mythical legal
Rather than pretending to be unbiased, judges must address
injustices embedded in social structures. Yet
themselves are divided between a liberal interpretation of
law which is inherently conservative and a radical
which calls into question the legitimacy of legal institutions.
Individual privacy versus government surveillance is
one among many Constitutional controversies which highlight
current legitimation crisis of the Supreme Court. Perhaps what
unique to this particular issue is the role technological
has played in swiftly expanding and then quickly challenging
protection of the Fourth Amendment. In this essay we will
the technological development of electronic communications
with the corresponding legal developments in order to unmask
decisive political role of the Supreme Court. In particular,
will be focusing on the developments which have led to
current controversy regarding electronic mail and
The Supreme Court and Electronic Surveillance
Physical intrusion by law enforcement agents was the
means of "search and seizure" available to the government at
time the Constitution was drafted. The Fourth Amendment
that agents obtain a warrant before a search may be
conducted. In order to protect citizens from
intrusion, a warrant must be based upon probable cause, issued
a magistrate, and executed within a time limit. Moreover, it
specify the place to be searched and the objects to be seized.6
The question of government wiretapping under the
Amendment was first addressed by the Supreme Court in Olmstead
6See L.A. Wintersheimer, Privacy Versus Law Enforcement
Can the Two Be Reconciled? (Cincinnati Law Review 1988,
United States.7 Evidence against the defendants in Olmstead
obtained by intercepting telephones messages of the
The interception was achieved by inserting small wires into
ordinary telephone wires without any physical trespass into
defendants' property.9 The defendants claimed that the use
evidence obtained in this manner violated the Fourth Amendment
an unreasonable search and seizure.10 The Olmstead
interpreted "search and seizure" to entail only a
intrusion.11 Since the interception in this case did
involve a physical trespass, the Court held that there was
Fourth Amendment violation. Hence, wiretapping was held not
constitute a search and seizure.12 By employing
interpretation of the Constitution which sought the
meaning of legal terms, the Olmstead Court decided not to
the protection of the Fourth Amendment to visual or
searches which do not entail a physical entry of
premises.13 In fact, the Court stated that extending
meaning of the term "search and seizure" to include
interception of telephone conversation by means of
could only be made by direct legislation from Congress.14
The same principles were applied by the Supreme Court
again in Goldman v. United States.15 In this case
agents used an amplifying device to monitor conversation
a wall. The Court ruled that, despite the trespass of
property, there was no violation of the Fourth Amendment
would make the information obtained inadmissible. It should
note that the Court refused to grant the defendant a claim to
expectation of privacy.16
In Silverman v. United States, however, the government
a microphone which penetrated a hole in the wall of a row
to an adjoining heating duct in the defendant's home. The
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.
Court held that this constituted a physical intrusion
violated the Fourth Amendment.17 Silverman may be viewed as
weakening of the Olmstead decision in so far as the agents
not actually step foot into the defendant's premises.
In Berger v. New York, the Supreme Court held that a
York statute regulating electronic surveillance violated
Fourth Amendment.18 The Court's decision was based upon
technical deficiencies of the procedures outlined for obtaining
warrant. In fact, the statute's requirements for a warrant
the particularity of the crime, a description of the things to
seized, and the notification of the parties involved.19
previous cases, however, physical intrusion was not
the crucial factor for determining a violation of the
Amendment. It would seem that the Court could have ruled that
warrant was required provided there was no physical trespass.
striking down a statute regulating electronic surveillance
Court moved one step closer toward an extension of the breath
the Fourth Amendment. Although the Court chose not insist
the Constitutional need for a warrant, it did judge that
legislation regulating warrants for electronic surveillance
meet the same requirements as old legislation regulating
intrusions under the Fourth Amendment.
Less than a year later, however, Olmstead was overruled
Katz v. United States.20 In this case the government
a recording device to the exterior of a telephone booth which
regularly used by the defendant.21 The Supreme Court held
such surveillance by the government constituted an illegal
and seizure because there was not probable cause to bug
telephone booth.22 The government tried to justify its
by pointing out that there was no physical penetration of
telephone booth.23 While the Court acknowledged that the
Amendment was thought at one time to apply only to the search
seizure of tangible property, it openly departed from a
interpretation and extended the meaning of "search and
to include the recording of oral statements. The Court based
decision upon the principle that the Fourth Amendment
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.
people not places.24 Thus, it refused to make an exception
the requirement of probable cause even though no tangible
were seized.25 Consequently, the Court disregarded the
based upon physical intrusion and developed its own principle:
warrant is required whenever the individual has a
expectation of privacy.26 In order to appreciate the break
Katz Court made from previous rulings on electronic
we need to look at the opinion of the court (delivered by
Stewart) in some detail.
In particular, we see that the Katz Court extended
boundary of Fourth Amendment protection by means of an
notion of privacy which was unacceptable in prior decisions.
emphasis on privacy as distinct from place becomes clear when
note that the Court rejected the defendant's formulation of
constitutional issues. The defendant based his questions
(1) whether a telephone booth is a constitutionally
area, and (2) whether physical penetration of a
protected area is necessary in order to claim a violation of
Fourth Amendment.27 Firstly, the Court rejected the
"constitutionally protected area." Secondly, it held that
Fourth Amendment cannot be interpreted as a
constitutional `right to privacy`." It qualified this by
that, although the Fourth Amendment protects individual
against specific kinds of government intrusion, its
goes further than the realm of private property. As for
person's "general right to privacy," such protection is left
the law of the individual States. Having made this
the Court proceeded to develop a notion of a right to
applicable to the Fourth Amendment. The issue is no longer
matter of protecting places. What an individual "seeks
preserve as private, even in an area accessible to the
may be constitutionally protected."28 When someone steps into
telephone booth and closes the door there is an expectation
privacy. While the Olmstead Court considered an extension of
boundary of protection to be outside its jurisdiction, the
Court held that a more narrow definition of privacy would
the "vital role that the public telephone has come to play
private communication."29 In effect, the Katz Court
the boundary of the Fourth Amendment by shifting the debate
24Id. at 353.
25Id. at 357-358.
26Id. at 359.
27Id. at 349-350.
28Id. at 350.
29Id. at 352.
the realm of private property to the more abstract realm
personal privacy. Hence, it was able to rule that
recording of the defendant's words "violated the privacy
which he justifiably relied while using the telephone booth
thus constituted a `search and seizure` within the meaning of
Thus, the Katz Court was able to openly depart from what
called Olmstead's "narrow view" and claim that the
Amendment governs not only the seizure of tangible items,
extends as well to the recording of oral statements,
without any `technical trespass under ... local
law.'"31 Having established that electronic surveillance
require a warrant, the Court proceeded to spell out
for obtaining a warrant. Since electronic surveillance
treated as if it constituted a physical intrusion, no
were made to the requirements for a warrant given in the text
the Fourth Amendment and developed in common law.
In presenting its guidelines, the Court was
concerned that electronic surveillance not be left merely to
discretion of law enforcement agents. Yet it explicitly
that, although a situation involving "national security" may
an exception to the requirement of prior authorization, this
did not lend itself to such a question.32 It is worth
that Justices Douglas and Brennan stated in a concurring
that the Executive Branch, including the President, has
grounds to engage in electronic surveillance without a
even in matters of national security.33
In order to appreciate the significance of the
interpretation employed in the decision of Katz, we need
examine the concurring opinion of Justice Harlan and
dissenting opinion of Justice Black.
In his concurring opinion, Justice Harlan pointed out
no longer associating privacy with place requires a rule for
constitutes protection of people. In his analysis he
that the Court has established a twofold requirement for
(1) that a person have exhibited an actual
expectation of privacy, and (2) that the expectation be one
society is prepared to recognize as "reasonable."34 It
significant that such a rule appears no where in the text of
Constitution. In fact, this is precisely the kind of judgment
Olmstead Court refused to make because it considered such
30Id. at 353.
31Id. at 353.
32Id. at 359.
33Id. at 359-360.
34Id. at 361.
extension of the meaning of "search and seizure" to be the
jurisdiction of Congress. In making this rule explicit,
Harlan does not concerned himself with upsetting the balance
powers in the branches of the federal government.
In his dissenting opinion, Justice Black claims that
decision rendered by the Katz Court effectively amounts to
revision of the Fourth Amendment. When we examine his argument
see that Black employs an originalist interpretation of
Constitution which cannot be reconciled with an activist
The philosophy of original understanding is based upon
neutral application of a legal principle, which
neutrality in deriving, defining, and applying the principle.
judge is to seek the original understanding of the words in
text of the Constitution in order that the Court may remain
legal rather than a political institution. Hence,
holds that the Court is not free to define the scope of
principle as it sees fit, for the outcome of the decision
then be based upon grounds that are not contained in the
understanding of the principle it purports to apply. Such
cannot come from the legislature, and hence, must come from
personal preferences of the justices.35
Justice Black bases his dissenting decision on the
of the term "eavesdropping." According to his analysis, the
Court incorrectly defined "wiretapping" as a form of search
seizure rather than defining it more accurately as
carried on by electronic means."36 Black interprets the
opinion as opening the door for the enactment and the
of laws regulating wiretapping in accord with the
Amendment despite the obstacles the Berger Court set in the
of wiretapping laws. In order to appreciate these obstacles,
must recall that the Berger Court demanded the same procedure
obtaining a warrant for electronic surveillance as for
intrusion. Yet a warrant for search and seizure normally
that the named parties be notified. In the case of
surveillance, however, such a requirement obviously defeats
effectiveness of the method of intrusion. Although Black
that such obstacles to legislation regulating wiretapping must
removed, the failure of the Court to make a distinction
"search and seizure" and "eavesdropping" incorrectly extended
Fourth Amendment to include wiretapping.
In arguing for his opinion, Black upholds two
(1) the words of the Fourth Amendment do not bear the
given them by the Court's decision, and (2) it is not the
role of the Supreme Court to "rewrite the Amendment in order
bring in it in harmony with the times` and thus reach a
35For a thorough presentation of originalist approach to
Constitution see Chapter 7 of, R. Bork, The Tempting of
(New York: The Free Press, 1990).
36389 U.S. 364.
that many people believe to be desirable."37 Thus, we see
Black is employing two fundamental tenets of
(1) justices must seek the original meaning of the words of
text, and (2) justices are not to rewrite the scope of
principle where the Constitution is silent for this is the
role of the democratically elected legislature. After quoting
entire Fourth Amendment, Black establishes that the
purpose" was to protect tangible things and not to
conversation which cannot be searched or seized according to
normal meaning of such words. Moreover, the Amendment refers
things which must be described for they are already in
Yet it is impossible to describe a future conversation.
Black concludes that the Fourth Amendment does not apply
eavesdropping. Although wiretapping was unknown at the time
the framing of the Bill of Rights, eavesdropping certainly
practiced and could of being incorporated into the
Black proceeds by giving an overview of Supreme Court
dealing the Fourth Amendment's applicability to
Thus, he attempts to show that his opinion is consistent with
Court's previous decisions, in particular, with all the
cases from Olmstead through to Berger. He concludes that he
simply applying the scope of the Fourth Amendment which the
has traditional followed and that the Katz Court has made
distinctive break in order to include eavesdropping.39 In
footnote, Black states that "the Court is promulgating
doctrine instead of merely following what it `has
According to Black, the Court has decided that
conversation can be "seized."41 In light of his conviction
it is not the place of the Supreme Court to "keep
Constitution up to date," he claims that the Court does not
the power to give new meaning to words, especially a
which the words to do have in "common ordinary usage."
exercise such power is to turn the Court into "a
functioning constitutional convention." Black points out
this shift in the Court's policy happened only recently and
coincident with its "referring incessantly to the
Amendment not so much as a law against unreasonable searches
seizures as one to protect an individual's privacy." Moreover,
considers this an arbitrary substitution of the
37Id. at 364.
38Id. at 365-366.
39Id. at 386-389.
40Id. at 372 (footnote).
41Id. at 372.
language" for "Constitution's language."42 As another
of a substitution in favor of a right to privacy, Black
his dissenting opinion in Griswold v. Connecticut. There he
that the Constitution does not provide a "right to privacy"
protects individuals from laws which compromise privacy.
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
could not be reconciled with the Court's decision to extend
protection of the Fourth Amendment to recording and
Although Black recognizes the legitimate need to
wiretapping, he believed that the obstacles presented by
Berger Court should have been dealt with in another manner.
particular, he is concerned with the Court's adoption of
discourse. Rather than upholding a right to privacy by
the meaning of "seizure" to include conversation,
Black felt that the Court should have deferred to Congress
order that the law be updated by amendment to the Constitution.
During the years following the decision in Katz, the
Court continued to uphold civil rights, such as an
right to privacy, in the face of technological developments
other domains. In fact, it can be shown that the Supreme
has gradually moved from policies which tolerate
advances at the expense of individual rights to policies
put decisions in the hands of individuals. In the
century, the Court upheld statutes which called for the
vaccination of citizens. It also protected laws which
the government to sterilize criminals. In the early
century, however, the Court opposed sterilization on the
that basic human rights outweigh any potential harm to
that may come from the children of criminals. In recent
computerized data banks have enabled governments to
extensive records on citizens without their knowledge or
While upholding the need of the state to compile data
specific purposes, the Court has insisted that
measures be taken to maintain confidentiality. Just over
years ago, the Court decide that a woman's right to
outweighs the state's interests in cases regarding
Finally, with the recent advancements in life-
technologies, the Court has upheld the individual's right
42Id. at 373.
43Id. at 374.
withhold treatment despite a conflict with the traditions of
medical profession. In general, the Court has displayed
cautious attitude toward new technologies in favor of
rights. In particular, the Court has perceived the
widespread use of computer technologies as a threat to
privacy. Underlying these decisions, however, is a
philosophy which favors individual rights in the face
Congress and the Regulation of Government Surveillance
Congress responded to the decision of the Supreme Court
Katz with Title III of the Omnibus Crime Control and Safe
Act of 1968.45 This legislation was enacted to regulate the
of electronic surveillance by law enforcement agencies.
effectively revising the Fourth Amendment to
wiretapping, the Court in Katz opened the way for the
to enact regulations without recourse to the lengthy process
constitutional amendment. Title III of Omnibus was only a part
an act of Congress which found that "the high incidence of
in the United States threatens peace, security, and
welfare of the Nation and its citizens."46 While attempting
find new ways to "prevent crime," Congress tried to balance
privacy interests of the individual with the legitimate means
law enforcement by the state.
Title III was the first comprehensive piece of
to address the issue of communications privacy.47
particular, it protected only two types of communications
electronic eavesdropping: (1) telephone conversations and
face-to-face communication.48 The law established
requirement of a warrant for the interception of wire or
communications under circumstances where there is a
expectation of privacy.49 It also laid out specific
for obtaining a warrant, including restrictions to
surveillance which limit its use to certain types of
44See D. Jones Merritt, The Constitution in a Brave
World: A Century of Technological Change and Constitutional
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.
Communications Privacy: A Legislative Perspective, Wisconsin
4818 U.S.C. 2516.
investigations. In this way, Congress enacted
designed to meet the technical demands of the Berger
regarding probable cause and to address the political concerns
the Katz Court regarding the protection of individual privacy.
In a short period of time, technological change proved
make Title III inadequate. By restricting itself specifically
telephone wiretapping, its regulations could not be extended
new communication technologies like cellular telephones
electronic mail. As a result, these communications did not
under the Fourth Amendment's protection against
government surveillance. Hence, Title III was criticized for
failure to anticipate technological advancement.
In order to address the inadequacies of Title III,
instituted the Electronic Communications Privacy Act of
(ECPA).50 Its primary concern was to safeguard the right
individual privacy from erosion due to technological
Hence, it extended Fourth Amendment protection to
communication technologies such as cellular telephones,
transmissions, and electronic mail. Unlike the design
Title III, Congress tried to anticipate potential
associated with developments such as multi-media
which would fall under more than one classification of
The ECPA also expanded the scope of sites protected to
not only public carriers such as telephone companies but
private services such as corporate computers. Prior to
enactment of the ECPA, no federal statute addressed the issue
data interception. With the ECPA, electronic mail and
transmissions are protected in manner that parallels
protection of voice communications.51 Hence,
interception of these types of communication is only
under the restrictions of a warrant. However, the
differ from those applicable to telephone wiretapping.
example, court authorization for data interception,
wiretapping, can be based upon suspicion of any
In addition to technological change, Congress had
consider political factors in drafting the ECPA. Protecting
rights is not without its difficulties. During the
Administration, bills supported by the Justice Department
favored while ones opposed by it were likely
Consequently, the ECPA needed the support of the Department
Justice in order to be signed by the President. However, the
bill was given very strong support from
(Communications providers wanted to ensure their customers
5018 U.S.C. 2510-2520 (The ECPA is actually an amendment
Omnibus which leaves much of Title III intact).
the new technologies would be protected.) As a result,
success of the ECPA depended upon the support of civil
groups, business interests, and law enforcement officials.
enacting the ECPA, Congress not only preserved existing
liberties but also expanded protection of communications
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
with the powers of the Executive, including the power to
the laws.54 At the time the Constitution was ratified,
Fourth Amendment was included in order to protect citizens
the unreasonable search and seizure of their goods by
agents. With the development of communication technologies,
Executive has expanded its capabilities to engaged in
surveillance of citizens. In recent decades, the Supreme
has heard many cases which bear witness to the great interest
enforcement agencies have in electronic surveillance.
the civil rights movement bears witness to the great
citizens have in preventing their government from becoming
Orwellian state. After decades of unrestricted
surveillance, the Court's decision in Katz finally opened
door for the first legislation to regulate wiretapping under
Fourth Amendment. With Title III of Omnibus and the
Congress placed limits upon the powers of the Executive in
name of an individual right to privacy. Legal restrictions
deemed necessary in order to protect individuals from
ceaseless surveillance of Big Brother.
Given that the ECPA was designed to anticipate
technological developments, it would seem that a lasting
between individual privacy and government surveillance has
struck. Yet the ECPA did not anticipate the development
private sector cryptology along with the growth of
mail services. These technological developments
individuals to ensure the privacy of their communication
recourse to civil rights legislation. A warrant may grant
power to access personal data, but it is powerless to crack
encryption. After years of negotiating restrictions upon
legal powers of the Executive in the wake of
communications technologies, law enforcement agencies now
themselves seeking restrictions upon the technological powers
individuals in the wake of expanding civil rights.
Government interest in restricting cryptology dates back
53See Communications Privacy, pp. 733-737.
54Article II 2 declares "The President shall be
in Chief of the Army and Navy of the United States ... ."
3 states "... he shall take Care that the Laws be
executed, ... ."
legislation banning the export of cryptologic devices and
research.55 At that time, the government saw cryptology as
means to protect classified information. These laws
cryptology on a list of munitions, giving the President
authority to regulate its development and deployment.56
recent decades, the National Security Agency (NSA) has been
executive responsibility to regulate cryptologic standards
classified and national security information. It develops its
cryptosystems and appraises publicly available cryptosystems
order to offers private sector corporations a guarantee
security. In 1977, the NSA endorsed the Data Encryption
(DES) issued by the National Bureau of Standards (NBS)
nonclassified government and private sector
However, recent technological developments, especially
widespread growth of powerful private sector computers,
forced the NSA not to renew its guarantee. In light of
inadequacy of DES, the NSA made plans to issue its
cryptosystem for both government and private sector
It argued that cryptologic research, development, and use by
private sector threatens government security. In other words,
NSA is seeking to control all cryptology, even private
cryptosystems, due to the reliance of national security
economic strength. To this end, the Reagan Administration
the National Security Decision Directive 145.57 It
withdrawn, however, after being severely criticized for
imbalance of authority it gave to the President over
In 1987, Congress enacted the Computer Security Act
transferred the regulation of cryptology for
information to the National Institute of Standards and
(NIST). Nevertheless, the NSA under the Bush
continued to forge ahead in its attempts to
cryptosystems. In 1991 it announced the development of
Digital Signature Standard (DSS), and proposed that its system
used for private sector security. At that time the NIST was
to recommend a encryption method known as Rivest-Shamir-
(RSA), an algorithm patented by the Massachusetts Institute
55The Mutual Security Act of 1954.
56See C. B. Escobar, Nongovernmental Cryptology and
Security: The Government Seeking To Restrict
Computer/Law Journal, Vol. IV (1984).
57National Policy On Telecommunications and
Information Systems Security, National Security
Directive (Sept. 17, 1984).
58See R. A. Franks, The National Security Agency and
Interference With Private Sector Computer Security, Iowa
Review, 1015 (1987).
Technology. Within a few months, however, NIST endorsed the
Congress responded by establishing the Computer System
and Privacy Board which called for a national debate on the
In April 1993, the Clinton Administration announced
approval of the Clipper Chip, a cryptologic device designed
engineers at the NIST for both voice and data communications.
is intended for use by the private sector in order to
communications while at the same time enabling law
agencies to conduct surveillance. In other words, the device
at maintaining the government's ability to eavesdrop on
communications in the face of private sector cryptology
threatens current law enforcement practices. The plan
implementing the Clipper Chip includes legislation which
provide protection under the Fourth Amendment. Presumably,
enforcement agents would require a warrant to be granted
accordance with the same restrictions currently placed
wiretapping and the interception of electronic mail.
ramifications of this controversial proposal, including
constitutional implications, are presently under debate.60
No one denies the necessity of maintaining the integrity
the Constitution, especially the protection afforded by the
of Rights. Yet disputes do arise over whether it should
accomplished without upsetting the balance of powers between
executive, legislative, and judicial branches. In the case
protecting individuals from unreasonable electronic
we have seen that it was the Supreme Court which took
initiative. By interpreting the meaning of the term "search
seizure" to include the seizure of conversation, the Katz
expanded the breadth of the Fourth Amendment to
electronic surveillance. From an originalist perspective,
Court gravely upset the balance of powers by deriving,
and applying a principle of privacy not explicitly found in
text of the Constitution. From an activist perspective, the
Court rightly took a biased stand in order to bring the
Amendment into accord with the technological circumstances
political climate of the day.
After the Supreme Court made the first move
protecting individual privacy, Congress quickly responded
legislation designed to restrict electronic surveillance by
Executive. According to originalists, the political stand of
Court in support of civil rights was a threat to freedom.
59See J. A. Adams, Cryptography=privacy?, IEEE
August 1992, pp. 29-35.
60See L. Arbetter, The Clipper Chip Debate,
Management, August 1993, p. 8.
other words, by exerting their power into the political
non-elected justices disregard the proper authority of
members of Congress. Yet in Katz we did not witness the
of democracy. On the contrary, we saw the separation of
produce a prompt response by Congress, a response that
the powers of the Court and the Executive. Although the
to original meaning defended by Justice Black and others
credible, originalists cannot legitimately claim that
method of constitutional interpretation is the only
approach to adjudication. They demand that the separation
powers should be clearly defined. Yet the actual practice
checks and balances reveals that the judiciary is political
the very nature of the Constitution's design. Although
Supreme Court is the weakest of the three branches, it has
enough political power to agitate Congress and the
Even when the Court refrains from adjudication, a
message is sent. Such was the case when the Olmstead Court
upon Congress to legislate protection from wiretapping under
Nevertheless, the activist method of
interpretation is not without its own difficulties. After
decades of upholding civil rights, the Supreme Court now
itself facing unexpected technological circumstances and
within a very different political climate. At the time
and the Court endorsed a right to privacy, individual
lacked the technological means to protect themselves
electronic surveillance. Thus, the law was the only obstacle
surveillance. Today, however, private communications can
established with a personal computer and sophisticated
software. Hence, the Executive considers the new technologies
threat to its ability to enforce the law and is taking
to maintain its electronic surveillance capabilities.
Congress is becoming less concerned about civil rights and
concerned about controlling the high rate of crime.61 What
the Court do when it is called upon to evaluate laws intended
protect the "rights" of law enforcement agencies? How will
maintain its credibility?
The Supreme Court will eventually have to face
constitutionality of "crime control" statutes designed to
the powers of law enforcement agencies. If the Court takes
61In fact, the Senate is currently debating over S. 618,
bill "To control and reduce violent crime." Among its
provisions designed to increase the power of law
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.
originalist stand, it will remain silent. If it takes a
activist stand, it will pit the liberties of citizens against
powers of the state in a battle over civil rights. However,
the Court takes a radical activist stand, it will move
"rights discourse" in order to pressure Congress and
Executive into addressing the vast disparity which is at the
of a considerable amount of crime. Under these circumstances,
Court may even employ its political power to instigate
constitutional convention on racial and economic
Nonetheless, whichever theory of adjudication it chooses
practice, the Court's resolutions will inevitably have
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