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					                  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




                                      BIBLIOGRAPHY

         Adam, John A. Cryptography = privacy? IEEE Spectrum, August
1992.

         Arbetter, Lisa. The Clipper Chip Debate. Security Management,
              August 1993.

         Bork, Robert. The Tempting of America. (New York: The Free
Press,
             1990) Chapter7.

         Clukey,   Laura L.   The Electronic    Communications Privacy   Act
of
         1986:
              The Impact on Software Communication          Technologies.
              Software Law Journal, Vol. II, 1988.

         Franks, Renae Angeroth. The National Security Agency and Its
              Interference with Private Sector Computer Security.
              Iowa Law Review, 1015, 1987.

         Kastenmeier, Robert W., Deborah Leavy, and David Beier.
              Communications Privacy:    A Legislative Perspective.
              Wisconsin Law Review, 1989:715.

         Landever, Arthur R. Electronic Surveillance, Computers, and the
              Fourth   Amendment   -   The   New   Telecommunications
              Environment Calls for Reexamination of Doctrine. Toledo
              Law Review, Vol. 15, Winter 1984.
      Merritt, Deborah Jones. The Constitution in a Brave New World:
A
          Century of Technological Change and Constitutional Law.
          Oregon Law Review, Vol. 69, Num. 1, 1990.

      Escobar, Christy Brad. Nongovernment Cryptology and National
           Security: The Government Seeking To Restrict Research.
           Computer Law Journal, Vol. IV, 1984.

      Soma, John T., and Richard A. Wehmhoefer. A Legal and Technical
           Assessment of the Effect of Computers On Privacy.
           Denver Law Journal, Vol. 60.3, 1983.

      Southard, C. Dennis IV. Individual Privacy and Governmental
           Efficiency: Technology's Effect on the Government's
           Ability to Gather, Store, and Distribute Information.
           Computer/Law Journal, Vol. IX, 1989.

      Wintersheimer, Lisa Ann. Privacy Versus Law Enforcement - Can
the
          Two Be   Reconciled? Cincinnati   Law   Review,   Vol. 57,
          1988.

				
DOCUMENT INFO
Description: [The following is provided via the courtesy of the Internet Society White House Press Release Gopher Service.] E X E C U T I V E O F F I C E O F T H E P R E S I D E N T THE WHITE HOUSE Office of the Press Secretary ______________________________________________________________ For Immediate Release February 22, 1993 REMARKS BY THE PRESIDENT AND VICE PRESIDENT TO SILICON GRAPHICS EMPLOYEES Silicon Graphics Mountain View, California 10:00 A.M. PST THE PRESIDENT: First of all, I want to thank you all for the introduction to your wonderful company. I want to thank Ed and Ken --we saw them last night with a number of other of the executives from Silicon Valley -- people, many of them with whom I've worked for a good length of time; many of whom the Vice President's known for a long time in connection with his work on supercomputing and other issues. We came here today for two reasons, and since mostly we just want to listen to you I'll try to state this briefly. One reason was to pick this setting to announce the implementation of the technology policy we talked about in the campaign, as an expression of what we think the national government's role is in creating a partnership with the private sector to generate more of these kinds of companies, more technological advances to keep the United States always on the cutting edge of change and to try to make sure we'll be able to create a lot of good new jobs for the future. The second reason -- can I put that down? We're not ready yet for this. The second reason I wanted to come here is, I think the government ought to work like you do. (Applause.) And before that can ever happen we have to be able to get the people, the Congress, and the press who have to interpret