CRIMINAL JUSTICE AND TECHNOLOGY

In 1928 Justice louis d. brandeis warned that "discovery and invention have made it possible for the government, by means far more effective than the rack, to obtain disclosure in court of what is whispered in the closet." And, he went on to ask, "can it be that the Constitution affords no protection against such invasion of individual security?" In olmstead v. united states (1928) the Supreme Court responded yes to Brandeis's question: the Constitution "affords no protection."

Today the Court continues to give virtually the same answer. Thus, in United States v. Knotts (1983), Justice william h. rehnquist wrote that "nothing in the fourth amendment prohibit[s] the police from augmenting the sensory facilities bestowed upon them at birth with such enhancement as science and technology afforded them in this case." That case involved a mobile tracking device, but the same attitude is reflected in many other cases and contexts. The Court has virtually abdicated any role in shaping a response to the threats to liberty and individual rights posed by the new technology, leaving the problem to the occasional efforts of the Congress and to the state legislatures and courts.

The Olmsteadwiretapping controversy set the pattern. There the Court construed the Fourth Amendment to deny any constitutional protection against devices that do not involve a physical trespass and the seizure of tangible documents. Nine years later, in nardone v. united states (1937), the Court construed a federal statute codifying federal radio and telecommunications law to prohibit wiretapping, much to everyone's surprise. The limitations of this approach were reflected in the virtual failure of the statute to reduce wiretapping significantly and in the Court's understandable refusal in Goldman v. United States (1942) to apply the statute to the next significant technological development, a detectaphone placed against a wall that could overhear conversations in another room without physically trespassing.

Now, a half century later, Brandeis's warning is more timely than ever, for we have developed technologies that make these early devices seem primitive. These new technologies include tiny, almost invisible video and audio surveillance devices that can function at short or long distances and by night as well as day, such as a "miniawac," which can spot a car or a person from 30,000 feet in the air; electronic bracelets and anklets that signal a probation or parole officer if his or her charge goes more than a short distance from home; and chemical dust that can be used with ultraviolet detectors for tracking. Computer matching of records in different places can also provide vast amounts of information about a person. Many other techniques involving new biological and medical technology are also being developed.

The Court's resistance to imposing constitutional controls on the use of technological advances in the criminal justice system stems in part from the law enforcement and constitutional contexts in which these issues arise. Almost always the question before the Court has been whether a convicted criminal is to go free because the enforcement authorities have used some technological device without meeting constitutional requirements. Only for a brief period in its history (1961–1967) has the Court not been reluctant to tolerate such an outcome.

The constitutional provision at issue in these cases is usually the Fourth Amendment, which imposes restrictions only on search and seizure. The Court's analytic approach has been to dichotomize surveillances into "searches" and "nonsearches," with the latter denied any Fourth Amendment protection at all; other constitutional provisions, such as the Fifth Amendment's ban on compelled self-incrimination, have been construed as inapplicable to the use of most technological devices. schmerber v. california (1966) illustrates that point.

This dichotomous approach, together with the Court's general reluctance to recognize the special impact of modern technology on individual liberty, was illustrated just a few years after it overruled Olmstead in katz v. united states (1967). A sharply divided Court in united states v. white (1971) refused to recognize a constitutionally protected right not to have one's conversation with another person secretly transmitted electronically by the latter to police listening some distance away. "Inescapably, one contemplating illegal activity must realize and risk that his companions may be reporting to the police," wrote Justice byron r. white, and to him there was no significant difference "between probable informers on the one hand and probable informers with transmitters on the other." But as the dissenting Justice john marshall harlan wrote, "third-party bugging … undermine[s] that confidence and sense of security that is characteristic of … a free society. It goes beyond the … ordinary type of "informer situation." The "assumption of risk" analysis used by the Court is circular, insisted Justice Harlan, for "the risks we assume are in large part reflections of laws that translate into rules [our] customs and values.… The critical question, therefore, is whether … we should impose on our citizens [such] risks … without at least the protection of a warrant." Moreover, the Fourth Amendment is designed to protect all of us, not just people "contemplating illegal activities," and the Court's approach precluded constitutional protections when a confidential conversation turns out to be wholly innocent.

The White unconcern for differences in degree that become differences in kind has been reflected in virtually every constitutional case involving modern technology that the Court has faced. For example, seeking anonymity in a crowd and moving to out-of-the-way places are ways to preserve some privacy in a surveillance-pervaded crowded society. In United States v. Knotts the Court ruled that an electronic device, a "beeper," surreptitiously attached to a container that emitted electronic signals, enabling the police to trace the container wherever it went, did not call for constitutional protection; the Court reasoned that "visual surveillance from public places along [the] route" of the person with the container would have provided the same information. Only if the beeper enters a house with the container and continues to operate is there a privacy encroachment requiring a search warrant. The same reasoning can obviously apply to beepers secretly attached to people.

The Court has been equally indifferent to the threats to privacy and liberty posed by modern expansions of visual surveillance. Walls and distance—which we ordinarily use to protect privacy—are not very effective safeguards in today's world. Video surveillance can now be conducted from great distances and often with the capability of listening as well. So far, the Court has tended to ignore distance as a factor. In a series of three decisions in the late 1980s the Court consistently upheld surveillance from above enclosed areas, even when the surveillance was made possible only by the use of highly sophisticated equipment. In Dow Chemical Co. v. United States (1986), Dow had a 2,000-acre chemical factory, around which it maintained elaborate security that barred ground-level views; it also investigated any low-level flights. Any further protection against intrusion, such as a roof over the entire facility, would have been prohibitively expensive. An Environmental Protection Agency airplane took approximately seventy-five pictures of the plant from altitudes as high as 12,000 feet. The camera's precision was so great that the pictures could be enlarged over 240 times without significant loss of detail or resolution; it was possible to see pipes and wires as small as one-half inch in diameter. Finding the plant similar to an open field, a 5–4 majority of the Court denied constitutional protection against the surveillance.

In Dow, the Court suggested that more protection might be available to a private residence than to a large industrial complex. But in California v. Ciraolo (1986) the same 5–4 majority decided the same way when police flew a private plane 1,000 feet above Ciraolo's yard, which he tried to protect with a six-foot outer fence and a ten-foot inner fence; the police saw a marijuana plant in the yard on a small plot, which they photographed. Despite Ciraolo's precautions, Chief Justice warren e. burger concluded that even though Ciraolo had a reasonable expectation of privacy in his backyard, it was "unreasonable for [him] to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet," because the observation occurred in public "navigable air space" and the members of the public could look down as they flew overhead. As Justice lewis f. powell observed in dissent, however, the likelihood of such an observation by a private person on a public or private plane is "virtually nonexistent."

The Court confirmed its indifference to the privacy of areas under surveillance a few years later in Florida v. Riley (1989), when it concluded that observations from a helicopter hovering 400 feet above a partially covered greenhouse in the defendant's backyard did not implicate the Fourth Amendment. The Court stressed that the helicopter was not violating the law, "did not interfere with respondent's normal use of the greenhouse," observed no "intimate details," and caused "no undue noise, no wind, dust or threat of injury." The Court did not explain why any of these should be determinative in deciding whether the greenhouse was entitled to be free from unrestricted surveillance.

An especially serious threat to individual liberty arises from the computer revolution. Seeking medical care, participating in public welfare programs, engaging in regulated activities, or even acting as consumers requires us to provide third parties vast amounts of personal information that previously we could have kept confidential. Data that were once either nonexistent or kept in a shoebox or file cabinet are now on someone else's computer disks. Moreover, those records that did exist were stored in public or private files usually scattered in a great many places, making it difficult to develop a full dossier on anyone. That difficulty is now a thing of the past. Computer matching pulls together masses of information in different files, information that can dog one throughout one's existence. As sociologist Gary Marx points out, "this can create a class of permanently stigmatized persons," making it impossible for people to overcome past mistakes and failures and to start a new life. Rehabilitation may be rendered impossible.

The Supreme Court has not dealt directly with computer matching, but has effectively denied constitutional protection to the privacy of a key element in that process: the records themselves. In United States v. Miller (1976) the Court refused to require police to meet Fourth Amendment requirements when they subpoenaed a bank's microfilm records of a suspect's checks, bank statements, deposit slips, and other bank transaction records. The Court found no "legitimate expectation of privacy in these records and documents because all contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.… The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the government." The result is that the enormous mass of information that we must "voluntarily convey" in order to live in a modern world is now without constitutional protection. This includes not only bank and medical records but even the telephone numbers we call, which are not conveyed to any one at all but simply recorded for billing purposes by usually inanimate equipment. In Smith v. Maryland (1979) the Court refused to require constitutional prerequisites for installation of a pen register that recorded the numbers of outgoing telephone calls. Justice harry a. blackmun wrote that "the switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber." Wayne LaFave noted the "ominous proposition that modern technology cannot add to one's justified expectation of privacy, but can only detract from it."

Finally, the Court has extracted a principle from one of the oldest forms of "technology" that would render newer technology one of the greatest threats to privacy and other individual rights. In concluding in United States v. Place (1983) that use of a dog's sense of smell to detect drugs in a suitcase did not raise Fourth Amendment concerns, the Court said, "A 'canine sniff' by a well-trained narcotics detection dog … does not expose non-contraband items that otherwise would remain hidden from public view … [and is] limited both in the manner in which the information is obtained and in the content of the information revealed." This approach would seem to be counter to the proposition that an intrusion cannot be validated by what it turns up. Moreover, if accuracy and unobtrusiveness are criteria, then what lies in store if, as Justice Brandeis feared, we do indeed develop ways that can unobtrusively detect the presence of incriminating materials by foolproof methods?

And why should techniques be limited to searching out tangible items; what of incriminating expressions or even thought revealed by new medical or chemical technology? At this point the Court might balk, but so far its constitutional theory would impose few if any controls.

Herman Schwartz
(1992)

Bibliography

Fishman, Clifford S. 1985 Electronic Tracking Devices and the Fourth Amendment: Knots, Karo the Questions Still Unanswered. Catholic University Law Review 34:277–395.

La Fave, Wayne 1987 Search and Seizure. St. Paul, Minn.: West Publishing Co.

Marx, Gary T. 1988 Undercover Police Surveillance in America. Berkeley: University of California Press.

Office of Technology Assessment 1985 Federal Government Information Technology: Electronic Surveillance and Civil Liberties. Washington, D.C.: U.S. Government Printing Office.