explaining that courts must assess the “de sirability” of privacy expectations and ask whether courts “should” recognize them by “balanc[ing]” the “impact on the individual’s sense of security . . . against the utility of the conduct as a technique of law enforcement”
How later courts described this case
- explaining that courts must assess the “de sirability” of privacy expectations and ask whether courts “should” recognize them by “balanc[ing]” the “impact on the individual’s sense of security . . . against the utility of the conduct as a technique of law enforcement”
- holding that, just as an informant “may write down for official use his conversations with a defendant and testify concerning them, . . . no different result is required if the agent . . . records them with electronic equipment which he is carrying on his person”
- finding that, “however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities”
- stating that the court must transcend the "search for subjective expectations” inasmuch as subjective expectations are inextricably linked to a determination of whether society considers the expectation reasonable
Written by the judges who cited it.
Distinguished
Distinguished by People v. Catania, 427 Mich. 447 (1986)
Justice Brennan concurred in the White result because, in his view, Katz was inapplicable to behavior which occurred before the decision in Katz, p 755.
The opinion
Mr. Justice Douglas,
dissenting.
I
The issue in this case is clouded and concealed by the very discussion of it in legalistic terms. What the ancients knew as “eavesdropping,” we now call “electronic surveillance”; but to equate the two is to treat man’s first gunpowder on the same level as the nuclear bomb. Electronic surveillance is the greatest leveler of human privacy ever known. How most forms of it can be held “reasonable” within the meaning of the Fourth Amendment is a mystery. To be sure, the Constitution and Bill of Rights are not to be read as covering only the technology known in the 18th century. Otherwise its concept of “commerce” would be hopeless when it comes to the management of modern affairs. At the same time the concepts of privacy which the Founders enshrined in the Fourth Amendment vanish completely when we slavishly allow an all-powerful government, proclaiming law and order, efficiency, and other benign purposes, to penetrate all the walls and doors which men need to shield them from the pressures of a turbulent life around them and give them the health and strength to carry on.
That is why a “strict construction” of the Fourth Amendment is necessary if every man’s liberty and privacy are to be constitutionally honored.
When Franklin D. Roosevelt on May 21, 1940, authorized wiretapping in cases of “fifth column” activities and sabotage and limited it “insofar as possible to aliens,” he said that “under ordinary and normal circumstances *757 wire-tapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights.” See Appendix I to this dissent. Yet as Judge Ferguson said in United States v. Smith, 321 F. Supp. 424 , 429:
“[T]he government seems to approach these dissident domestic organizations in the same fashion as it deals with unfriendly foreign powers. The government cannot act in this manner when only domestic political organizations are involved, even if those organizations espouse views which are inconsistent with our present form of government. To do so is to ride roughshod over numerous political freedoms which have long received constitutional protection. The government can, of course, investigate and prosecute criminal violations whenever these organizations, or rather their individual members, step over the line of political theory and general advocacy and commit illegal acts.”
Today no one perhaps notices because only a small, obscure criminal is the victim. But every person is the victim, for the technology we exalt today is everyman’s master. Any doubters should read Arthur R. Miller’s The Assault On Privacy (1971). After describing the monitoring of conversations and their storage in data banks, Professor Miller goes on to describe “human monitoring” which he calls the “ultimate step in mechanical snooping” — a device for spotting unorthodox or aberrational behavior across a wide spectrum. “Given the advancing state of both the remote sensing art and the capacity of computers to handle an uninterrupted and synoptic data flow, there seem to be no physical barriers left to shield us from intrusion.” Id., at 46.
When one reads what is going on in this area today, our judicial treatment of the subject seems as remote from *758 reality as the well-known Baron Parke was remote from the social problems of his day. See Chapman, “Big Brother” in the Justice Department, The Progressive, April 1971, p. 27.
II
We held in Berger v. New York, 388 U. S. 41 , that wiretapping is a search and seizure within the meaning of the Fourth Amendment and therefore must meet its requirements, viz., there must be a prior showing of probable cause, the warrant authorizing the wiretap must particularly describe “the place to be searched, and the persons or things to be seized,” and that it may not have the breadth, generality, and long life of the general warrant against which the Fourth Amendment was aimed.
In Katz v. United States, 389 U. S. 347 , we held that an electronic device, used without trespass onto any given enclosure (there a telephone booth), was a search for which a Fourth Amendment warrant was needed. 1 Mr. Justice Stewart, speaking for the Court, said: “Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.” Id., at 359 .
As a result of Berger and of Katz , both wiretapping and electronic surveillance through a “bug” or other device are now covered by the Fourth Amendment.
There were prior decisions representing an opposed view. In On Lee v. United States, 343 U. S. 747 , an *759 undercover agent with a radio transmitter concealed on his person interviewed the defendant whose words were heard over a radio receiver by another agent down the street. The idea, discredited by Katz , that there was no violation of the Fourth Amendment because there was no trespass, was the core of the On Lee decision. Id., at 751-754 .
Lopez v. United States, 373 U. S. 427 , was also pre- Berger and pre-Katz. The government agent there involved carried a pocket wire recorder which the Court said “was not planted by means of an unlawful physical invasion of petitioner’s premises under circumstances which would violate the Fourth Amendment.” Id., at 439.
Mr. Justice Brennan, dissenting, stated the philosophy of Katz soon to be adopted:
“[T]here is a qualitative difference between electronic surveillance, whether the agents conceal the devices on their persons or in walls or under beds, and conventional police stratagems such as eavesdropping and disguise. The latter do not so seriously intrude upon the right of privacy. The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak. But as soon as electronic surveillance comes into play, the risk changes crucially. There is no security from that kind of eavesdropping, no way of mitigating the risk, and so not even a residuum of true privacy. . . .
“. . . Electronic aids add a wholly new dimension to eavesdropping. They make it more penetrating, more indiscriminate, more truly obnoxious to a free *760 society. Electronic surveillance, in fact, makes the police omniscient; and police omniscience is one of the most effective tools of tyranny.” 373 U. S., at 465-466 .
It is urged by the Department of Justice that On Lee be established as the controlling decision in this field. I would stand by Berger and Katz and reaffirm the need for judicial supervision 2 under the Fourth Amendment of the use of electronic surveillance which, uncontrolled, promises to lead us into a police state.
These were wholly pre-arranged episodes of surveillance. The first was in the informant’s home to which respondent had been invited. The second was also in the informer’s home, the next day. The third was four days later at the home of the respondent. The fourth was in the informer’s car two days later. Twelve days after that a meeting in the informer’s home was intruded upon. The sixth occurred at a street rendezvous. The seventh was in the informer’s home and the eighth in a restaurant owned by respondent’s mother-in-law. So far as time is concerned there is no excuse for not seeking a warrant. And while there is always an effort involved in preparing affidavits or other evidence in support of a showing of probable cause, that burden was given constitutional sanction in the Fourth Amendment against the activities of the agents of George III. It was designed not to protect criminals but to protect everyone’s privacy.
On Lee and Lopez are of a vintage opposed to Berger and Katz . However they may be explained, they are *761 products of the old common-law notions of trespass. Katz , on the other hand, emphasized that with few exceptions “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment . . , 389 U. S., at 357 . Camara v. Municipal Court, 387 U. S. 523 , put administrative searches under the Fourth Amendment. We held that administrative actions, like other searches, implicated officials in an invasion of privacy and that the Fourth Amendment was meant to guard against the arbitrariness of any such invasion. We said:
“We simply cannot say that the protections provided by the warrant procedure are not needed in this context; broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty.” Id., at 533 .
In Chimel v. California, 395 U. S. 752 , in considering the constitutionality of a search incident to an arrest we held that, while the area in the immediate reach of an arrestee is “reasonable” though made without a warrant, a search beyond that zone may generally be made “only under the authority of a search warrant.” Id., at 763 . And in two “stop and frisk” cases, Terry v. Ohio, 392 U. S. 1 , and Davis v. Mississippi, 394 U. S. 721 , we held that any restraint of the person, however brief, was subject to judicial inquiry on “reasonableness” ( 392 U. S., at 19 ) and that “the Fourth Amendment governs all intrusions by agents of the public upon personal security . . . .” Id., at 18 n. 15.
We have moved far away from the rationale of On Lee and Lopez and only a retrogressive step of large dimensions would bring us back to it.
The threads of thought running through our recent decisions are that these extensive intrusions into privacy *762 made by electronic surveillance make self-restraint by law enforcement officials an inadequate protection, that the requirement of warrants under the Fourth Amendment is essential to a free society. 3
Monitoring, if prevalent, certainly kills free discourse and spontaneous utterances. Free discourse — a First Amendment value — may be frivolous or serious, humble or defiant, reactionary or revolutionary, profane or in good taste; but it is not free if there is surveillance. 4 *763 Free discourse liberates the spirit, though it may produce only froth. The individual must keep some facts concerning his thoughts within a small zone of people. At the same time he must be free to pour out his woes or inspirations or dreams to others. He remains the sole judge as to what must be said and what must remain unspoken. This is the essence of the idea of privacy implicit in the First and Fifth Amendments as well as in the Fourth.
The philosophy of the value of privacy reflected in the Fourth Amendment’s ban on “unreasonable searches and seizures” has been forcefully stated by a former Attorney General of the United States:
“Privacy is the basis of individuality. To be alone and be let alone, to be with chosen company, to say what you think, or don’t think, but to say what you will, is to be yourself. Solitude is imperative, even in a high rise apartment. Personality develops from within. To reflect is to know yourself. Character is formed through years of self-examination. Without this opportunity, character will be formed largely by uncontrolled external social stimulations. Americans are excessively homogenized already.
“Few conversations would be what they are if the speakers thought others were listening. Silly, secret, thoughtless and thoughtful statements would all be affected. The sheer numbers in our lives, the anonymity of urban living and the inability to influence things that are important are depersonalizing and dehumanizing factors of modern life. To penetrate the last refuge of the individual, the precious little privacy that remains, the basis of individual dignity, can have meaning to the quality of our lives that we cannot foresee. In terms of present values, that meaning cannot be good.
*764 “Invasions of privacy demean the individual. Can a society be better than the people composing it? When a government degrades its citizens, or permits them to degrade each other, however beneficent the specific purpose, it limits opportunities for individual fulfillment and national accomplishment. If America permits fear and its failure to make basic social reforms to excuse police use of secret electronic surveillance, the price will be dear indeed. The practice is incompatible with a free society.” R. Clark, Crime in America 287 (1970).
Now that the discredited decisions in On Lee and Lopez are resuscitated and revived, must everyone live in fear that every word he speaks may be transmitted or recorded 5 and later repeated to the entire world? I can *765 imagine nothing that has a more chilling effect on people speaking their minds and expressing their views on important matters. The advocates of that regime should spend some time in totalitarian countries and learn firsthand the kind of regime they are creating here. 6
*766 Ill
The decision not to make Katz retroactive to any electronic surveillance which occurred prior to December 18, 1967 (the day we decided Katz), is not, in my view, a tenable one for the reasons stated by Mr. Justice Harlan and me in our dissents in Desist v. United States, 394 U. S. 244, 255, 256 .
APPENDIX I TO OPINION OP DOUGLAS, J., DISSENTING
THE WHITE HOUSE WASHINGTON
May 21, 1940
CONFIDENTIAL
MEMORANDUM FOR THE ATTORNEY GENERAL
I have agreed with the broad purpose of the Supreme Court decision relating to wire-tapping in investigations. The Court is undoubtedly sound both in regard to the use of evidence secured over tapped wires in the prosecution of citizens in criminal cases; and is also right in its opinion that under ordinary and normal circumstances wire-tapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights.
However, I am convinced that the Supreme Court never intended any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation.
It is, of course, well known that certain other nations have been engaged in the organization of propaganda of so-called “fifth columns” in other countries and in preparation for sabotage, as well as in actual sabotage.
*767 It is too late to do anything about it after sabotage, assassinations and “fifth column” activities are completed.
You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigation agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens.
[seal] /s/ F. D. R.
APPENDIX II TO OPINION OF DOUGLAS, J., DISSENTING
ADMINISTRATIVELY CONFIDENTIAL THE WHITE HOUSE WASHINGTON
June 30, 1965
MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
I am strongly opposed to the interception of telephone conversations as a general investigative technique. I recognize that mechanical and electronic devices may sometimes be essential in protecting our national security. Nevertheless, it is clear that indiscriminate use of those investigative devices to overhear telephone conversations, without the knowledge or consent of any of the persons involved, could result in serious abuses and invasions of privacy. In my view, the invasion of privacy of communications is a highly offensive practice which should be engaged in only where the national security is at *768 stake. To avoid any misunderstanding on this subject in the Federal Government, I am establishing the following basic guidelines to be followed by all government agencies:
(1) No federal personnel is to intercept telephone conversations within the United States by any mechanical or electronic device, without the consent of one of the parties involved, (except in connection with investigations related to the national security).
(2) No interception shall be undertaken or continued without first obtaining the approval of the Attorney General.
(3) All federal agencies shall immediately conform their practices and procedures to the provisions of this order.
Utilization of mechanical or electronic devices to overhear non-telephone conversations is an even more difficult problem, which raises substantial and unresolved questions of Constitutional interpretation. I desire that each agency conducting such investigations consult with the Attorney General to ascertain whether the agency’s practices are fully in accord with the law and with a decent regard for the rights of others.
Every agency head shall submit to the Attorney General within 30 days a complete inventory of all mechanical and electronic equipment and devices used for or capable of intercepting telephone conversations. In addition, such reports shall contain a list of any interceptions currently authorized and the reasons for them.
/s/ Lyndon B. Johnson
See Greenawalt, The Consent Problem in Wiretapping & Eavesdropping: Surreptitious Monitoring With the Consent of a Participant in a Conversation, 68 Col. L. Rev. 189; Kitch, Katz v. United States: The Limits of the Fourth Amendment, 1968 Sup. Ct. Rev. 133 ; Note, Police Undercover Agents: New Threat to First Amendment Freedoms, 37 Geo. Wash. L. Rev. 634 ; Comment, Electronic Surveillance: The New Standards, 35 Brooklyn L. Rev. 49.
The relaxing of constitutional requirements by the Executive Branch is apparent from the Appendices to this dissent.
Osborn v. United States, 385 U. S. 323 , was held to be in that tradition, as the federal district judges, prior to the use of the recording device by the agent and with full knowledge of the alleged law violation involved, “authorized the use of a recording device for the narrow and particularized purpose of ascertaining the truth” of the charge. Id., at 330 .
The tyranny of surveillance that is not supervised in the Fourth Amendment manner is told by Judge Gesell in United States v. Jones, 292 F. Supp. 1001, 1008-1009 ; where the competition between agencies and the uncontrolled activities of subordinates ended up with Government itself playing an ignoble role.
Cf. American Bar Association, Project on Standards for Criminal Justice, Electronic Surveillance §§4.1, 5.2 (Approved Draft 1971).
Congressman Mikva of Illinois, in speaking of the spread of military surveillance of civilians — another facet of the problem in the instant case — recently said:
“At one pont they referred to ‘infiltrating public meetings’ at which Senator Stevenson and I spoke, and I wondered how you ‘infiltrate’ a public meeting. Perhaps they wanted to compile evidence to be used in some future military court — evidence that I was disloyal to the military establishment because I suggested that we cut manpower by ten per cent last year, or because I voted against their appropriations in the two years I’ve been here.
“When they start investigating political figures, there is no place you can draw the line and maintain any kind of civilian control. . . .
“We have become a fearful people. There was a time when we feared only our enemies abroad. Now we seem to be as fearful of our enemies at home, and depending on whom you talk to, those enemies can include people under thirty, people with foreign names, people of different races, people in the big cities. We have become a suspicious nation, as afraid of being destroyed from within as from without.
“Unfortunately, the manifestations of that kind of fear and suspicion are police-state measures.” A Nation in Fear, The Progressive, Feb. 1971, pp. 18,19-20.
Senator Edward Long, who intensively investigated wiretapping and “bugging” said:
“You would be amazed at the different ways you can now be 'bugged? There is today a transmitter the size of an aspirin tablet which can help transmit conversations in your room to a listening post up to 10 miles away.
“An expert can devise a bug to fit into almost any piece of furniture in your room. And even if you find the bug, you will have no evidence of who put it there. A United States Senator was bugged by a transmitter secretly placed into a lamp which his wife was having fixed at the shop. When experts searched for the transmitter, it was gone.
“A leading electronics expert told my Subcommittee last year that wiretapping and bugging in industrial espionage triples every year. He said that new bugging devices are so small and cleverly concealed that it takes search equipment costing over one hundred thousand dollars and an expert with 10 years of field experience to discover them. Ten years ago, the same search for bugs could have been done with equipment costing only one-fourth as much.
“In California we found a businessman who had been so frightened by electronic eavesdropping devices which had been concealed in his *765 office, that he is now spending thousands of dollars having his office searched each day, taking his phone apart every morning, and stationing a special guard outside his office 24 hours a day.
“He is one of a growing number of men in industry who live in constant fear that what they say is being listened to by their competitor.” 19 Adm. L. Rev. 442, 444. And see E. Long, The Intruders (1966).
“A technological breakthrough in techniques of physical surveillance now makes it possible for government agents and private persons to penetrate the privacy of homes, offices, and vehicles; to survey individuals moving about in public places; and to monitor the basic channels of communication by telephone, telegraph, radio, television, and data line. Most of the 'hardware’ for this physical surveillance is cheap, readily available to the general public, relatively easy to install, and not presently illegal to own. As of the 1960’s, the new surveillance technology is being used widely by government agencies of all types and at every level of government, as well as by private agents for a rapidly growing number of businesses, unions, private organizations, and individuals in every section of the United States. Increasingly, permanent surveillance devices have been installed in facilities used by employees or the public. While there are defenses against 'outside’ surveillance, these are so costly and complex and demand such constant vigilance that their use is feasible only where official or private matters of the highest security are to be protected. Finally, the scientific prospects for the next decade indicate a continuing increase in the range and versatility of the listening and watching devices, as well as the possibility of computer processing of recordings to identify automatically the speakers or topics under surveillance. These advances will come just at the time when personal contacts, business affairs, and government operations are being channeled more and more into electronic systems such as data-phone lines and computer communications.” A. Westin, Privacy and Freedom 365-366 (1967).