The Constitution Today: Fourth Amendment

MS. DIANE REHM

11:06:53
Thanks for joining us. I'm Diane Rehm. John Adams once called colonists opposition to searches and seizures by the British government, the spark in which originated the American Revolution. The 4th Amendment is increasingly under the spotlight in the digital age. Next week, the Supreme Court will hear a landmark case in which police attached a GPS device to a suspect's car without a warrant.

MS. DIANE REHM

11:07:35
As part of our ongoing Constitutional Today series, we look at how new technology is pushing the boundaries of 4th Amendment protections. Joining me in the studio, Jeffrey Rosen of the George Washington University Law School, Michael Quinn of James Madison's Montpelier and former federal prosecutor Scott Fredericksen of -- who is now in private practice. Throughout the hour I'll be interested in hearing your reactions, your questions and comments 800-433-8850. Send us your email to drshow@wamu.org. Good morning to all of you.

MR. SCOTT FREDERICKSEN

11:08:33
Good morning, Diane.

MR. JEFFREY ROSEN

11:08:34
Good morning.

MR. MICHAEL QUINN

11:08:34
Good morning.

REHM

11:08:35
Michael Quinn, if you would, begin by reading that 4th Amendment for us.

QUINN

11:08:42
Well, the 4th Amendment is very -- seems very simple on its reading. It says the following words, "The 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 warrant shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized."

REHM

11:09:12
And then give us a little bit of the background on why that amendment was put in, in 1791.

QUINN

11:09:22
Well, you noted John Adams' comment that it was the 1761 hearing in Boston about the issue of general warrants, that is the ability of a sheriff to search anyplace he wanted for evidence that Adams felt was the spark that ignited the revolution. And, of course, Adams -- Otis -- James Otis and Adams were strong advocates of limiting the right of warrants and in particular, focusing upon the fact that the officer had to name a particular place, crime and had to support his allegations by oath.

QUINN

11:10:05
Now, this was not originally part of the constitution, but when James Madison formulated the amendments that would become The Bill of Rights, he was very familiar with this legal issue. Not only from the hearing up in Boston, but also because it had been an issue raised in the Virginia Ratifying Convention. And so he incorporated it into his proposals for the Amendments that were introduced -- that he introduced into Congress in 1789.

REHM

11:10:37
Michael Quinn, he's President and Executive Director of James Madison's Montpelier. Jeffrey Rosen, tell me about the Supreme Court case that we'll hear next week and how it figures into our discussion this morning?

ROSEN

11:10:59
This is arguably the most important 4th Amendment privacy case of the past decade because it poses the question of how to translate the 4th Amendment that Michael described into a technological age. So this was a case involving a suspected drug dealer named Jones and it was in Washington, D.C. And the police actually got a warrant and they put it under his car and they tracked his movements 24/7 for a month. And based on this tracking, they found out that he was indeed dealing drugs and they prosecuted him and convicted him.

REHM

11:11:28
But they had a warrant?

ROSEN

11:11:30
It was a warrant, but it was not valid. The problem was, it was supposed -- the tracking was supposed to take place in Washington, D.C. In fact, it took place in Maryland. It was supposed to be served within 10 days. In fact, it was done within 11 days. So the court has to presume, for the purposes of the case, that there was no valid warrant. And the question starkly posed is, do the police need a warrant before they can track you 24/7? The lower courts have divided on this question.

ROSEN

11:11:53
Three lower courts, federal , have said, yes, you can track without a warrant because we have no expectation of privacy in public. Because theoretically your neighbor could put a tail on you or the police, according to the Supreme Court, can put a beeper in your car and use the beeper to follow your movements for a 100 miles, said three courts. Therefore, we have to assume the risk that we're being tracked by GPS devices. But in a -- I'm not going to reveal what all -- what I think, but I'll say, in a visionary (unintelligible) ...

REHM

11:12:20
I'm going to ask you later.

ROSEN

11:12:21
...exactly. In a visionary opinion, Judge Douglas Ginsburg, on the U.S. Court of Appeals here in D.C., disagreed. Ginsburg said, there's a huge difference between tailing someone for a 100 miles and tracking them 24/7 for a month. We do have an expectation of privacy, said Ginsburg, in the whole of our movements because 24/7 tracking can reveal so much about us, what bars we visited, what -- who our friends are, who our associates are. To fail to require a warrant under these circumstances, said Ginsburg, would be precisely the kind of dragnet type of surveillance that the Supreme Court said, in that beeper case, is not permissible.

REHM

11:12:56
Jeffrey Rosen, he's professor of law at The George Washington University School of Law. He's legal affairs editor at The New Republic. Scott Fredericksen, describe for us the process of obtaining a warrant and how does law enforcement typically go about doing that?

FREDERICKSEN

11:13:23
Well, Diane, typically law enforcement will seek a search warrant when there's probable cause, which is a relatively high standard. They need to have objective facts. They need to go to a federal judge independently, have it reviewed and the federal judge exercises his independent judgment on whether there's probable cause and then determines if a warrant will issue and then directs where it will be executed and other particulars. Of course, as Jeffrey indicated here, even though there was a warrant, the agents were a day late and got it attached in the wrong jurisdiction which made it invalid. So the government now has to justify this as if there wasn't a warrant.

REHM

11:14:08
This 4th Amendment, moving into the age of technology, is somehow either got to be revised or people have to understand the expansion of its reach. How do you feel about that, Michael Quinn?

QUINN

11:14:32
Well, it's clearly and issue we have to deal with. I mean, the whole principal really arose from English law. I mean, we were an English colony. And the principle is your home is your castle, that you do have a right to be protected, even from the king, even from the strongest government authority to privacy in your home. And if you look at the language of the 4th Amendment, although it is written in an 18th century world when GPS and thermal imaging and other technology didn't exist, it's broaden -- it's very broad. It's -- it lists that you have the right to be secure, not only in your person, and in your house, but in your papers and your effects.

REHM

11:15:14
Doesn't say in your car.

QUINN

11:15:17
Well, you know, what does it mean by effects?

REHM

11:15:19
Yeah.

QUINN

11:15:20
What does it mean by paper? I mean, if you think about paper, clearly they were probably thinking about your personal records in your home.

REHM

11:15:26
Surely.

QUINN

11:15:27
In fact, there are cases that indicate that. Also in the letter she writes, well, how does that apply in a world of emails?

REHM

11:15:35
Exactly.

QUINN

11:15:36
Or those...

REHM

11:15:37
Jeffrey.

ROSEN

11:15:38
The reason this case is so important is because the court has dodged that crucial question. What does it mean to have privacy in our papers and effects now that our papers and effects are stored, not on our locked desk drawers as at the time of the framing, but on third party servers maintained by Google and Yahoo? The court has said repeatedly that once we turn over papers for one purpose, we lose all expectation of privacy for it for another purpose. It's called the 3rd Party Doctrine. If that's true, that means we have less privacy in the age of technology than we did at the time of the framing.

REHM

11:16:08
What do you think, Scott?

FREDERICKSEN

11:16:09
Well, we do face, I think, the greatest challenges with respect to our personal privacy, I think, with the intrusion of the electronic age into ourselves. But I think that comes, not from our own government, but from outside states and other private companies. Here, keep in mind, this GPS device did no more than obtain information that was readily available if they put an old fashioned surveillance person on there. You can do that. You can surveil someone 24/7, but it's pretty difficult in this day and age and when you're facing the kind of threats we're facing, it's not practical and it's not efficient.

FREDERICKSEN

11:16:47
And I think one of the points -- several of the points the government makes is this GPS obtained information that was only exposed to the public by the suspected drug dealer. So it's only that information, it doesn't tell them what the person is saying in the car, who the occupant is, who they're meeting with, just their location. All in the public sector knowingly exposed there by this individual who was out there applying his trade, allegedly, on the public streets.

FREDERICKSEN

11:17:18
And I think the government would go on to say further that you can't expect the government to face off against the threats we face now with the technology the other side has, if you will, with 19th or even 20th century technology. And the GPS, while relatively new, is not now that revolutionary. It tells information but here only information that's out in the public.

ROSEN

11:17:47
Well stated, Counselor. Here's the argument on the other side. It's not the case that we knowingly expose our movements to the police in this way. In theory, 10 million policemen could follow each of us 24/7. I mean, you'd need that degree of manpower in order to make that ubiquitous surveillance possible, but in practice, no one expects it and it's not done. And the court has said repeatedly, it's true. We are vulnerable to the kind of surveillance that ordinary members of the public might engage in. The police can take pictures of your backyard from a helicopter, but only if ordinary members of the public do that and it is not the case that we are subject to this sort of surveillance today.

REHM

11:18:25
Jeffrey Rosen, he's professor at The George Washington University School of Law. Short break, we'll be right back.

REHM

11:20:03
And for those of you who've just joined us, we're talking about the 4th Amendment of the Bill of Rights. It was written in 1791. It has come up now very definitely in a brand new case before the Supreme Court that will be heard next week, bringing into question the use of new technologies in search and seizure cases.

REHM

11:20:38
Michael Quinn of the James Madison's Montpelier Foundation is going to read that 4th Amendment once again for those of our listeners who may have missed it.

QUINN

11:20:53
And, Diane, it's worth returning to it because each word has great significance.

REHM

11:20:57
Of course.

QUINN

11:20:58
It is as follows. "The 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 warrant shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized."

QUINN

11:21:22
Now when originally written, that really was viewed primarily as sort of a unity and it really applied -- it really was an -- it was really restriction more on the courts in issuing the warrants. They had to meet those standards, probable cause supported by oath describing the particular place. But modern jurisprudence has also realized -- is also looking at this as establishing two standards. The other being unreasonable search and seizure. And we're starting to see some thinking that you can have a reasonable search even if you don't have a warrant.

REHM

11:21:57
Here is a posting on our website from Greg who says, "The 4th Amendment consists of multiple clauses, but these are usually conflated in that warrantless searches are often treated as unreasonable on their face. But the second clause is almost a procedural one specifying the conditions of warrants. Can your guests speak to the difference between warrants and unreasonableness?" Jeffrey.

ROSEN

11:22:34
The caller's absolutely right. For the framers warrants were dangerous things because they immunized the crown's agents from liability for trespassing on your private property. So the paradigmatic unconstitutional search at the time of the framing, as Michael suggested, was rummaging through someone's desk drawers and private papers.

ROSEN

11:22:53
And there was a critic of the king called John Wilkes, whose case very much galvanized the American colonists. He accused King George III's foreign secretary of having an affair with the queen, with King George's mother. The king was furious. He dispatched his agents and armed them with a general warrant saying, find the author of this anonymous pamphlet North Britain 45. So armed with this warrant the crown's agents' going to many people's desk drawers, they riffle through things. Finally, they identify Wilkes as the author of this pamphlet.

ROSEN

11:23:21
He's sued, he's convicted of -- he's seditious liable. He objects that his most intimate papers have been riffled through. And a jury sides with him and awards him 1,000 pounds, which is a McDonald's-like verdict in its day, on the grounds that paper searches of people's diaries are inherently unreasonable. So this case stands for the proposition warrants are bad, they immunize the king and private papers should be sacrosanct.

REHM

11:23:47
I've often thought I would have great joy sitting in one of Jeffrey Rosen's classes. It's wonderful to watch him and hear him.

FREDERICKSEN

11:23:56
I couldn't agree with you more.

REHM

11:23:56
All right. And here is another -- an email from Brandon. "Can you speak about the 4th Amendment as it relates to random workplace drug testing?" I wonder about that, Scott Fredericksen.

FREDERICKSEN

11:24:13
Well, keep in mind that the 4th Amendment applies only to state action, government action. It applies to the federal government and to state action through the due process clause. So drug testing is usually something that takes place in the workplace, in a private setting without government involved and usually with the consent of the employee. When the employee becomes an employee, they usually sign such a consent as a condition of employment, so often the majority of times that will not implicate the 4th Amendment.

REHM

11:24:48
But was the search in the Jones case that Spring Court is going to hear next week, was that lawful, as far as your understanding goes?

FREDERICKSEN

11:25:01
Yes. Well, Jeff is right. It's a seminal case, you know, some perspective. First of all, this search is supported by the Obama Administration. Certainly not any wild-eyed, you know, right wing, you know, approach. The Obama Administration is strong in law enforcement, but you'd -- relatively moderate. It comes to the Supreme Court right now on appeal from the U.S. Court of Appeals in the District of Columbia. But three other circuits, the 5th, 7th and the 9th -- and that's what's interesting, they've all upheld it. And here, oddly enough, it's the 9th circuit is one of those three that have said, yes, it's okay.

FREDERICKSEN

11:25:43
So I -- to me, I suspect the D.C. circuit will be the outlier here, not as is usually the case, the 9th circuit.

REHM

11:25:51
And isn't it the 9th circuit that some in the Congress would like to see eliminated?

ROSEN

11:26:00
It is. There's a joke at the Supreme Court that if you see an opinion coming up in the 9th circuit there's an automatic rule that you have to grant and reverse. However, that 9th circuit opinion is really interesting because there is a remarkable descent written by none other than Judge Alec (sic) Kozinski, no liberal, but a libertarian Republican, very leading conservative judge in the country, is joined by the most liberal judge, Judge Reinhardt. Kozinski is a refugee from Eastern Europe and he says, as a refugee from a totalitarian government, I have to say George Orwell's 1984 has arrived. Oceana is here.

ROSEN

11:26:31
And Kozinski paints the picture of now that cell phone data is available and the government can not only subpoena it, but obtain it automatically by a web search request, he said the movements of all citizens are being vulnerable. We could know who was dating whom, who was outside of an abortion clinic or getting treated for a sexually transmitted disease. Kozinski said, unless the court recognizes that we do have some expectation of privacy in the whole of our movements all sorts of new technology from cellular phone tracking to tracking on Facebook and Google will become open season for the government.

REHM

11:27:06
Scott Fredericksen, what about the fact that the warrant had expired? How problematic is that for the government's case?

FREDERICKSEN

11:27:16
Well, it's been problematical for their procedure. They ultimately did get a conviction, which then got reversed which is now being appealed. It means that even though they had a search warrant here they have to justify it as it is without.

FREDERICKSEN

11:27:33
You know, the GPS devices here that are used they're used usually by law enforcement to obtain -- help determine if there is a basis or if there is probable cause. It's usually a reasonable suspicion standard. It often is a situation where an agent has a tip, a lead, whether it be on drugs or terrorism or organized crime or what have you but doesn't have probable cause yet, can't get a search warrant. And this is one of the things you use.

FREDERICKSEN

11:28:01
Now, yes, you could put someone on surveillance, but you can't do it. I was talking yesterday with some prosecutors and some agents in a room. And I told them I was going to be on this show and they said -- I said, what do you think? And they said, well, first of all, you can't tell them who we are. I said, okay, I won't give up the prosecutor.

FREDERICKSEN

11:28:19
But they said, you know, try doing a tail at 2:00 a.m. in the wrong neighborhood or an area. You can't do it very well. You know, it's not TV. It doesn't work very well. It is efficient. You can't tail someone 24/7. And we're not interested in that additional information. We only need to know where they're going, where they are. And that's what this reveals. It doesn't reveal private information about what's in their papers, what's being said in any conversations.

REHM

11:28:46
Michael Quinn, what do you think the founders' perspective on this might have been?

QUINN

11:28:53
Well, that's always a fun game to play.

REHM

11:28:55
Yeah, right.

QUINN

11:28:56
I think the founders looked at this 4th Amendment as protecting you in two ways. One, it was protecting your personal property, the papers in your house, and not just from search but from seizure. But secondly they also understood that it really was kind of a protection against some of your other rights. I mean, the Wilkes case that Jeffrey mentioned, what that general ability to search, to track down who wrote that anonymous track, that really led directly to compromising your freedom of speech.

FREDERICKSEN

11:29:31
So in many ways I think they would've viewed this as a general buffer to restrain government from invading not only your -- the right of privacy in your home, but some of your other rights, freedom of speech. So I tend to think that they would've looked at this and wanted it interpreted in a broader fashion. I think that's why the language includes your effects not --

REHM

11:29:54
Interesting that in that day and age the distinction between public and private seemed more clear.

QUINN

11:30:07
Well, it was much easier to draw the lines then...

REHM

11:30:09
Yeah.

QUINN

11:30:09
...because, you know, public and private have become so blurred with where we store our effects...

REHM

11:30:15
Exactly.

QUINN

11:30:16
...and papers and thoughts...

REHM

11:30:17
Exactly.

QUINN

11:30:18
...and how we communicate them.

REHM

11:30:20
So, Jeffrey Rosen, what about online surveillance?

ROSEN

11:30:27
Yes. So this is what's at stake. I was at a conference at Google just a few years ago. And the head of public policy said he expected, within a very few years, Google and Facebook would be asked to put live and online all of the public and private surveillance cameras that are now scattered across the globe. Already at Facebook, there is some versions of this. You can sign onto apps of live beach cameras in Mexico, which are popular with teenage boys for reasons you can imagine.

ROSEN

11:30:52
Now imagine, as this Google guy said, that the beach cams in Mexico are linked to the metro cams in Washington which are linked to the cameras in the streets and in private places. If these images are archived and stored, you could sign onto Google or Facebook, click on an image of me, back click on me to see where I came from this morning, forward click on to see where I'm going after the show and basically have 24/7 surveillance of anyone online at all times.

REHM

11:31:15
So would you need a warrant to do that, Scott?

FREDERICKSEN

11:31:19
That's a good question.

REHM

11:31:20
Yeah.

FREDERICKSEN

11:31:20
And that's not before the Supreme Court. I do think that our biggest threat to our security is not from the government, but from the private sector and from outside state-run terrorism and hacking and attempting to penetrate the United States.

FREDERICKSEN

11:31:39
But apart from that, I think, you know, every day when we use our iPhone and my iPad and we sign on and we Facebook, what we are doing is we're giving away our privacy, and it's not to the government. It's to private companies over which we have very limited control.

ROSEN

11:31:55
Could I just press, 'cause I'm curious? This is before the Supreme Court. If the Supreme Court says we have no expectation of privacy in our public movements, then it would be perfectly permissible for the government to go on this open planet system on Facebook and track us 24/7. Would that be constitutional? And if not, why not?

FREDERICKSEN

11:32:10
Well, that part is not before the Supreme Court.

REHM

11:32:12
Right.

FREDERICKSEN

11:32:12
It's putting a GPS on a Jeep Cherokee and tracking it through the streets of the District of Columbia and Maryland and entirely public spaces. And I will note, too, that that -- when that Jeep Cherokee was parked in a garage that part was suppressed and the government is not even appealing that part. So I think there is a big difference. And essentially, I suspect the Supreme Court, as the other three circuits have, draws a broad line test to the extent you can in these kinds of cases that when you're out in the public streets knowingly exposing your actions and activities to the public you have no expectation of privacy.

REHM

11:32:51
But aren’t you -- as Jeffrey implies, when you're on Facebook, aren't you also in public?

FREDERICKSEN

11:33:02
I think you could argue that you are. And putting all that together, the cameras, as long as it's all done voluntarily and in the public, I suspect the government could take advantage of that without a search warrant.

REHM

11:33:14
Former federal prosecutor, Scott Fredericksen and you're listening to "The Diane Rehm Show." We'll open the phones now, 800-433-8850. First to Keene, N.H. Good morning, David.

DAVID

11:33:33
Good morning. I have friends at coplock.org and they have been -- well, the police have cameras on their cars surveilling people at stops every time. If a private citizen who's a taxpayer and pays their salaries has a camera, it has been documented at that site coplock.org that they get charged quite often with felony wiretapping. What do you think of that?

REHM

11:34:05
Jeffrey.

ROSEN

11:34:05
David is absolutely right. These are really interesting series of cases, and some police departments have complained that when citizens film encounters with the police on their iPhones, they're violating state laws that require a two-party consent, for example, before you can film. Now courts have divided on this and at least one court in Massachusetts has rejected that argument and said that citizens do have a legitimate right to film the same encounters in public that the police insist that they can film.

ROSEN

11:34:32
This is a huge way of equalizing the power between citizens and the police. And I think, at the very least, if the government's going to go around arguing that we have no expectation of privacy in public as citizens then the police should be held to the same standard and citizens should be able to film these encounters.

REHM

11:34:45
I truly now begin to understand why you began this program by saying how important this case is. Let's go to Emerald Isle, N.C. Good morning, Alan. Alan.

ALAN

11:35:02
Hello.

REHM

11:35:03
Yes, sir. Go right ahead. Alan, are you there? Forget it. Let's go to Reston, Va. Good morning, Michael.

MICHAEL

11:35:16
Good morning. I have a question I'd like to ask your guests. What's their opinion on the New York City police's policy of stop and frisk? It seems to me a clear and cut violation of the 4th Amendment because they're searching the persons of people without any warrant or probable cause.

REHM

11:35:36
Look at Alabama, same thing. Go ahead, Scott.

FREDERICKSEN

11:35:40
Well, I understand the concern there. You're talking about a procedure that was approved by the Supreme Court in the Terry -- the Ohio, I think it was and its progeny. The court has said that for certain limited situations a lesser standard applies and the police are entitled to a minimal frisk -- a stop and frisk situation with less obviously than probable cause. But this has been established by the Supreme Court now for quite a long time.

REHM

11:36:13
And is that in the case of suspicion of being an illegal citizen, for example, in Alabama?

ROSEN

11:36:25
The Supreme Court has said that you need reasonable suspicion of criminal activity of some kind. So if...

REHM

11:36:32
But Alabama has gone farther.

ROSEN

11:36:35
Reasonable suspicion of illegal immigration status does seem to test the Terry case.

FREDERICKSEN

11:36:41
I think it does, but I -- and I think what it tests, though, is not so much in my view the Terry case, but the Alabama statute. Is that Alabama statute constitutional? I think that's, in my mind, the real question. And I have serious question whether that will withstand review by the federal courts. And if it's not, regardless of Terry, they can't do it on that basis.

REHM

11:37:00
How soon do you expect that case to get before the Supreme Court, Jeffrey?

ROSEN

11:37:08
I'm not sure what -- where it's at in the lower courts. So hard to predict. Certainly not this year.

REHM

11:37:12
All right. We're going to take a short break here. And when we come back, more of your email, your phone calls, your Tweets and your postings on Facebook.

REHM

11:40:02
And we're back talking about the 4th Amendment, not only in history, but how it applies today in our increasingly technological world. Here's a Tweet from Hector, who says, "If tracking by GPS on a car is public, what would stop a requirement for GPS tracking to be embedded in cars during manufacturing?" Jeffrey Rosen.

ROSEN

11:40:35
Arguably nothing. And, in fact, there are some insurance companies that are now charging people different rates for rental cars and even for car insurance based on how fast they draw. Now, you could -- on how fast they drive. You could say that's different from this case 'cause there's no individualized suspicion to have required GPS tracking of everyone. But if the Supreme Court says you don't need a warrant to place a GPS device under a car, then mass GPS tracking would be permissible and you wouldn't need any individualized suspicion for that either. So I...

REHM

11:41:07
Scott.

FREDERICKSEN

11:41:08
Well, respectfully, I think that's one place where you're just plain wrong, Jeffrey, this morning. You know, I don't think the government could require mass attachment of GPS to all cars because that's exactly the kinda widespread dragnet without any individual suspicion of criminal activity. And keep in mind, that is what the law enforcement does here. They don't just go out and randomly attach. And let alone, mass requiring it, I think, would be struck down uniformly.

FREDERICKSEN

11:41:42
Now, that goes to the point we said earlier, though. If it's a private insurance company or a private entity that's requiring it, the 4th Amendment doesn't come into play. Yet, you could argue that you're losing much more of your freedom that way.

REHM

11:41:56
To Kelly in Chicago, Ill. I think Kelly speaks to this very issue. Good morning to you. Kelly, are you there? Kelly said there is a new law in Chicago with 24 hour surveillance of speeding in school zones. Your thoughts?

ROSEN

11:42:25
I'm not surprised to hear this. There, you know, cameras are proliferating in public places. So the question is, can that be challenged under the same principle? And there's a difference between -- that's really just a snapshot. It's like following someone's movements for 100 miles. And I think in that circumstance, the court has already said we don't have an expectation that we're not being surveilled for limited amounts of time. The big question in this case is, is there a difference between short-term and long-term surveillance? It's the intensity and the duration and the scope of the search, and that's the line that the court's gonna be asked to draw here.

REHM

11:43:02
All right. To Tulsa, Okla. Good morning, Russell.

RUSSELL

11:43:07
Hi, Diane.

REHM

11:43:07
Hi.

RUSSELL

11:43:09
I wanted to say that I think surreptitiously attaching an electronic device to someone's person or car is unconstitutional, invasion of privacy. I think it's shocking to the conscience, kinda like the search and seizure cases where they jammed a pen down somebody's throat to make them vomit up drugs. And so I wanted to kind of see what the thoughts are about the constitutional aspect of sticking a device on something as opposed to the idea of the constant monitoring.

REHM

11:43:43
Scott.

FREDERICKSEN

11:43:45
Well, I think the last part of your question is a very good one. I think that, I suspect, is the most vulnerable point that the government has to defend. And that's the act of attaching it. And the question then becomes is that a search, is that seizure, because they're going underneath and attaching it. I suspect the Supreme Court will say that it may technically be, but it's minimal and it's justified, it's in a public place, the car was in a public parking lot, that certainly they're out in public. And I suspect the government will prevail on that. But it is, I think, the closest part in this case.

ROSEN

11:44:21
I agree that the justices, especially the Conservatives, may be agree with the caller that our property is being infected and invaded when it's surreptitiously attached with a GPS device. In the California case, Judge Kozinski was very exercised about this. There the GPS device was placed not on a car parked in public, but parked in someone's driveway. And the ninth circuit said we have no expectation of privacy and our car's in our driveway 'cause neighborhood kids could crawl under the car. Kozinski was furious. He said very few poor people are appointed to federal courts and this is a elitist and class based notion that even in your own driveway, you can't protect your property.

ROSEN

11:45:01
So Scott may be right, that the judges on the court could consider this a minimal invasion. On the contrary, they could decide the case narrowly saying there's not a broad expectation of privacy, but there was a property invasion here. The property was seized and therefore the search would be struck down.

QUINN

11:45:16
You know, I think all of this gets to the very difficult issue that every generation deals with, is that how do you really apply the constitution to our current life. And there are many different approaches to it. You can look at the words and try and understand them, what did they mean at the time they were written. I think that the best approach is to really try and understand and larger principle that the founders were articulating. And I think it was the sense of some protection from an overbearing government intrusion in our lives. And it may be more effective to start with that idea.

FREDERICKSEN

11:45:51
I think you're right. A couple points, first of all. Judge Kozinski was the minority opinion here. And I think the caller should understand here, this isn't done just picking any car off the lot. This was done because they had reasonable suspicion, they had a lot more, that this guy was a major drug dealer. Second of all, the idea that this is somehow class and elitist, I completely reject. You know, the fact is, the victims of crime out there are the lower class and often times are minorities. And to suggest that this is somehow class and elitist I think is some -- reflects someone in a robe sitting in a federal circuit who is maybe too far removed I think.

REHM

11:46:34
We have an email from Christopher, which says, "Someone mentioned the possibility of reasonable warrant-less searches. Doesn't the 4th Amendment imply that a search is reasonable only if a judge says it is?" Michael.

QUINN

11:46:56
Well, Diane, that was the original thinking about it...

REHM

11:46:59
Yeah.

QUINN

11:46:59
...is that by definition if a judge didn't give permission, it wasn't reasonable. There's a different thinking that is coming forward. You know, some of the ideas are if something is in plain view, if a officer pulls you -- stops you because you're speeding and you've got a gun on your front seat or obviously something illegal and he suspects a crime is underway, if he were to stop then and go look for a warrant, go obtain a warrant, that evidence could be destroyed or the crime could go ahead and happen.

REHM

11:47:32
Back to the technology question. Here's a message from Christie on Facebook, who says, "I have all the GPS and location apps disabled on my phone. I don't want anyone knowing where I am. If I want someone to know, I'll tell them verbally. We have choices. It's not as though we're totally at the will of electronics. People need to educate themselves about privacy and what the information they willingly provide to third party applications is being used for." Jeffrey.

ROSEN

11:48:17
Christie is absolutely right. We can educate ourselves and assert our own technological privacy. But there's not complete freedom. When Apple decided automatically to turn over the location of cell phones, regardless of whether you tried to resist that, it was making a choice for us and you had to not have an iPhone if you wanted to keep your stuff private. And speaking of Facebook, Christie, I just read the other day that Facebook now has a new agreement with Google, now comments that you make on web articles using the Facebook comment section are indexed on Google by your name.

ROSEN

11:48:50
So you used to think that this was a kind of anonymous form of posting. Now your name will come up even if you're sort of idly commenting on a web page. So the point is right now Facebook and Google have more power over privacy than any Supreme Court justice or king or president. And the technological choices they're making about how to design our iPhones and our comment system will influence our privacy and practice even more than the Supreme Court.

REHM

11:49:13
So has the court yet ruled on any case regarding smart phones, data on smart phones?

ROSEN

11:49:25
There was a case involving a Blackberry two terms ago. And the question was when the employer promised that they wouldn't search the Blackberry, but then there was a suspicion of workplace wrongdoing and they searched it anyway and fired the guy. Were they violating his expectation to privacy? And the court in a pretty narrow opinion said no, because the employer owned the machine, he had -- they could break their promises basically. But then Justice Kennedy said, well, but the technology is moving fast and we don't wanna rule too broadly, so let's not get ahead of ourselves. But that was a disturbing case 'cause -- yes.

REHM

11:49:54
Interesting. All right. To Fort Walton Beach, Fla. Good morning, Joe.

JOE

11:50:01
Good morning everybody. I just had a comment and a quick question.

REHM

11:50:05
Sure.

JOE

11:50:05
I think sometimes the ends justify the means. If you're in surgery or something like that and you have gangrene in your arm, sometimes you have to cut that off and get rid of it to save the rest of the body. Sometimes we do something that's not necessarily pleasant to save ourselves. This man was a known drug dealer. I believe he was out on bail, that he had already been arrested for the drug dealing.

JOE

11:50:35
And, you know, I have no problem with people looking at me. It's gonna be a boring search because I have nothing to hide. If you're not doing anything wrong, you don't have anything to worry about. And my question is, if our papers are protected, what about text messages? What about cyber bullying where these girls are being arrested for these other girls that commit suicide and -- but, you know, for cyber bulling?

REHM

11:51:06
Scott.

FREDERICKSEN

11:51:07
Well, there's a lot of questions in there wrapped up. Let me take what I think is your first point, maybe take it to a little bit different place, with apologies. We can't justify what happens under the 4th Amendment by after the fact saying this person's a drug dealer or that. It's what sets us apart from the rest of the world is something like the 4th Amendment. We've heard it read twice today. And every time I read that now, I think back to when I was a law student and I started scratching my head then. And I still do because it's this wonderful 4th Amendment and at the bottom line, you need to balance. And you have to balance security and you have to balance freedom.

FREDERICKSEN

11:51:52
I'm not a believer that the 4th Amendment or any other amendment was frozen at the time it was written. It can't be. We have to balance now. And I think that's maybe what the point you're going at. You know, one last point. I think if we look back before 9/11, what's been the biggest restriction on our freedoms? It's what happened after that. Not because of what the government did, but because of the threats we face now. That does not justify changing or violating the 4th Amendment or any other amendment. But it means we have to balance.

FREDERICKSEN

11:52:24
And that's why we have this robust process by which we're at the Supreme Court. We're arguing that. We're gonna have a rule there. And I guarantee we'll be back here in another year or two years with another technology challenge.

REHM

11:52:36
Scott Fredericksen, he's a former federal prosecutor. And you're listening to "The Diane Rehm Show." Jeffrey Rosen is chaffing at the bit.

ROSEN

11:52:51
Of course you have to balance. The 4th Amendment says that the searches have to be reasonable. But we're trying to figure out today what the balance is and, Scott, you didn't answer my question. Where do you draw the line? And I think most people, Diane gasped, and most people do when they think about the idea of 24/7 surveillance on Facebook where the government could literally track you 24/7. I'm gonna pause it that that goes too far. That is unreasonable. And without any suspicion to track someone's movements 24 hours a day violates the 4th Amendment.

ROSEN

11:53:19
So the question is, how close to that Google surveillance is this case? How close to the line? And it seems pretty close. If the court says we have no expectation of privacy in public against 24/7 GPS tracking for a month, then you might invoke the same principle to allow that Google tracking. So what are they gonna say, that this just gets too close to the line? And I hope they do.

FREDERICKSEN

11:53:38
Well, Jeffrey, that's a good question. Let me make sure I try and answer your question. One, on this case, I don't think it's that close. You've got more than reasonable suspicion of a major drug dealer using our public streets and the GPS is gathering information that is no more than what they would get if it was doing regular surveillance. Three circuits have already upheld it, including the very Liberal 9th circuit. I don't think it's that close. I think that's the answer the Supreme Court reverses. As to the Google...

ROSEN

11:54:06
(unintelligible) Sorry to interrupt, but just one small question on this. Why not require a warrant? They got one anyway. It happened to be invalid. Why would it cripple police work to say you have to get a warrant in cases like this where they wanted to get a warrant?

FREDERICKSEN

11:54:15
And that's a great question and I think it's asked by people who have not been in law enforcement. Because cases, investigations, they don't start with probable cause walking in the door. In fact, it's just the opposite. They start with a lead, a tip that does not establish probable cause. That's why you use something like this as an investigatory tactic. Look, if a law enforcement officer gets a tip that there's a terrorist operating on our public streets here, if they have to go and get probable cause, I can guarantee you most of the time they will not have probable cause to get this.

ROSEN

11:54:48
And one follow-up question. I understand maybe you could allow the warrant-less search if it was short-term following someone for 100 miles. But if you're gonna follow someone for a month, by that point you can get probable cause and you can require a warrant. Why not say if it's gonna be more than a short-term search, you need a warrant?

FREDERICKSEN

11:55:03
Again, if you require a warrant, you're gonna require probable cause. And probable cause does not happen in one day. It doesn't necessarily happen in one hour or one week or one month. And if they get it wrong, that's why we have the federal courts here to challenge that.

REHM

11:55:18
And here is an email from Jack, who says, "We cannot allow technology 'til you assert the clear meaning of the 4th Amendment. To do so is a very dangerous attack on the rights of all Americans." Is this case a defining moment somehow for the 4th Amendment, Michael?

QUINN

11:55:48
Well, I think it clearly is extending the 4th Amendment into our modern world. And the debate we're having this morning, I think it's a very healthy debate. I think what's interesting about it is if we were to pose an extreme situation on either end, we'd all be in complete agreement, and so would the court. The challenge for us is, where do you draw the line? When does it start shading from white into black and when is it too gray?

REHM

11:56:18
How do you wanna see the court rule on this, Jeffrey?

ROSEN

11:56:22
I want them to say that to engage in long-term 24/7 ubiquitous surveillance is an unreasonable search and requires a warrant.

REHM

11:56:30
Scott, how do you?

FREDERICKSEN

11:56:32
The court reverses the D.C. circuit and goes along with the other three circuits, so the support of that. I think this -- in the long run, this is not a seminal case. The more important case is when the hypothetical opposed by my colleague, Mr. Rosen here, when the government takes advantage of the wealth of data gathered, not by the government, but by the private sector, that's going to be the bigger concern.

REHM

11:56:53
Scott Fredericksen, Michael Quinn, Jeffrey Rosen, fascinating discussion, thank you so much.

FREDERICKSEN

11:57:00
Thank you, Diane.

ROSEN

11:57:01
Thank you.

QUINN

11:57:01
Thank you, Diane.

REHM

11:57:02
Thanks for listening all. I'm Diane Rehm.
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