Olmstead v. United States, 277 U.S. 438 (1928)

In the 1928 case of Olmstead v. United States, the Supreme Court found no violation of the Fourth Amendment when federal government agents wiretapped individuals’ telephone lines without first obtaining a judge’s approval. Prosecutors used the telephone conversations that the wiretaps intercepted to convict the individuals of Prohibition era crimes. Justice Louis Brandeis disagreed with the Court’s ruling and wrote a dissenting opinion in which he argued that constitutional protections must adapt to new technologies. In addition to predicting some of today’s threats to privacy, Justice Brandeis eloquently articulated the “right to be let alone.” He described the right to privacy as the most comprehensive and valued of rights. Although the Olmstead decision did not prevent unauthorized government surveillance of telephone conversations, it defined the terms of a debate about how to conceive of and protect privacy under the Constitution.
Olmstead and 20 other men were convicted by a federal jury in Washington state of conspiring to violate the National Prohibition Act. During the period of 1920 to 1933, when Prohibition was written into the Constitution, federal law made it illegal to transport and sell intoxicating liquors. Olmstead was convicted and sentenced to four years in prison for managing a large-scale illegal importing business that transported liquor by boat from British Columbia to Seattle and then distributed it to numerous customers. The evidence produced during the trial showed that the conspiracy sometimes sold 200 cases of liquor a day and that it likely generated millions of dollars in sales each year. In addition, it appeared that local police, rather than rooting out the crime, were involved in it themselves.
During the trial, wiretaps produced almost all of the incriminating evidence against Olmstead and the other defendants. Federal Prohibition agents had installed the wiretaps on telephone lines leading from the homes and offices of the conspirators, and they had listened in, without detection, over a period of several months. Olm-stead objected when prosecutors sought to have the agents testify about the telephone conversations they had overheard. He argued that the wiretaps violated the Fourth Amendment’s prohibition of unreasonable searches and seizures because the government agents had not obtained a judge’s approval before wiretapping. Olmstead argued that wiretapped evidence acquired in violation of the Fourth Amendment should not have been allowed in his trial.
By the time the Supreme Court heard the case, the trial court had denied Olmstead’s request to keep the evidence obtained by wiretaps out of the trial, and two out of the three judges on the federal appellate court that reviewed the trial court’s decision had affirmed it. The appellate court majority reasoned that listening into the telephone conversations that traveled over wires to and from the defendants’ private homes and attorney’s office was just like looking through windows or an open door into those spaces. The appellate court wrote that, even if wiretapping should be considered an “unethical intrusion upon the privacy of persons who are suspected of crime, it is not an act which comes within the letter of the prohibition of constitutional provisions.”
The third judge on the appellate panel, Judge Rudkin, disagreed with that analogy and would have accorded telephone conversations the same constitutional protection as sealed letters. In an 1877 case entitled Ex parte Jackson, the Supreme Court had written that government agents could not open sealed letters in the mails unless they obtained a proper warrant under the Fourth Amendment. In that case, the Court viewed sealed letters obtained from the postal system as being entitled to the same constitutional protection as papers obtained through the searches of private homes. In his dissenting opinion, Judge Rudkin argued that the constitutional protection accorded private papers and sealed letters should be extended to telephone conversations, since there are no meaningful distinctions “between a message sent by letter and a message sent by telegraph or telephone.” Because private papers or sealed letters obtained in violation of the Fourth Amendment cannot be used in a trial, the conversations obtained in the Olmstead case should have been kept out of the trial as well. Judge Rudkin expressed concern about the practice of using such wiretapped evidence in trials and wrote that “[i]f ills such as these must be borne, our forefathers signally failed in their desire to ordain and establish a government to secure the blessings of liberty to themselves and their posterity.”
When it reviewed the appellate court’s decision, the Supreme Court faced the question of whether to treat telephone conversations as analogous to sealed letters, and thus entitled to Fourth Amendment protection, or to agree with the lower courts that telephone conversations were constitutionally unprotected. Six out of the nine justices, a majority, declined to extend the protection accorded mail to telephone conversations, because they did not view the Fourth Amendment’s protection as extending to intangible conversations intercepted without a physical invasion of private property rights.
The Fourth Amendment provides that “[t]he 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 or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In writing the majority opinion, Chief Justice Taft identified the Fourth Amendment’s historical purpose as preventing “the use of governmental force to search a man’s house, his person, his papers and his effects; and to prevent their seizure against his will.” According to Chief Justice Taft, the constitutional language limits the amendment’s protection to material things, such as persons and papers, and does not extend to intangible conversations. He wrote that it does not constitute a search or seizure for Fourth Amendment purposes when agents gather evidence by hearing, in the same way that there is no search or seizure when agents gather incriminating evidence by merely seeing it. Chief Justice Taft also rejected the analogy between sealed letters and telephone conversations posited by Judge Rudkin. In addition to the fact that letters are tangible things and telephone conversations are not, the chief justice viewed the mail as special because the Constitution provides for the postal system and Congress requires that all mail be sent through that system. Those features did not characterize either the telephone or the telegraph. Chief Justice Taft argued that the telephone wires form a network more like a highway system than the postal system.
The chief justice went on to explain that in prior cases the Fourth Amendment had protected people when they were searched or their papers or effects were seized, or when agents conducted an “actual physical invasion” of a house to obtain evidence. Although many of the defendants in Olmstead had been in their homes or offices when their telephone conversations were intercepted, government agents had installed the wiretaps without physically invading the defendants’ private property. Wiretaps targeting private homes had been placed on the street outside, and the office wiretap was installed in the basement of a large building that was apparently not owned by the conspirators. Although urged to regard the wiretapping as equivalent to agents hiding themselves in the defendants’ houses to listen to their conversations, Chief Justice Taft took an entirely different approach. He wrote, “The reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires beyond his house and messages while passing over them are not within the protection of the Fourth Amendment.”
The majority opinion ties Fourth Amendment protection to whether or not the government agents had “trespassed,” or unlawfully entered the defendants’ private property. In doing so, the Supreme Court used property law rules to limit constitutional privacy protection. The majority expressed concern that if the police could violate the Fourth Amendment without conducting a physical intrusion, then the scope of protection would be dramatically extended. Over time, the trespass rule was elaborated so that Fourth Amendment analysis was triggered whenever agents intruded upon a “constitutionally protected area.”
Three justices disagreed with the majority’s decision, and although each wrote a separate opinion, Justice Brandeis’s dissent has become the most famous. Justice Brandeis rejected the majority’s narrow reading of the Fourth Amendment and instead advocated a flexible interpretation of its text to encompass situations that the drafters of the constitution neither considered nor imagined. The Fourth
Amendment was designed to prevent government officers from breaking into homes by force to seize papers, and was drafted with that threat to privacy in mind. Referring to electronic surveillance, however, Justice Brandeis wrote that, at the time, “[s]ubtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.” If the constitutional protections were confined to the old methods of invading privacy, Justice Brandeis warned, those protections would have little value.
Justice Brandeis predicted that the majority’s interpretation of the Fourth Amendment would leave unaddressed even greater threats to privacy in the future. “The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping,” he wrote. Justice Brandeis seemed to anticipate the development of networked personal computers when he predicted that “[w]ays may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.” The justice also accurately predicted that “[a]dvances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions.” Justice Brandeis concluded his disturbing picture of the future with the rhetorical question “Can it be that the Constitution affords no protection against such invasions of individual security?”
In arguing that the underlying purpose of the Fourth Amendment rather than its literal language should guide the Court, Justice Brandeis articulated an understanding of privacy that has been enormously influential. He wrote, “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. . . . They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.” Justice Brandeis concluded that the Fourth Amendment protects against “every unjustifiable intrusion by the Government upon the privacy of the individual.”
Justice Brandeis rejected both the majority’s refusal to liken telephone conversations to sealed letters and its suggestion that Fourth Amendment protection required a physical trespass under property law. As to the former, Justice Brandeis found the distinctions between telephone calls and sealed letters to be irrelevant, and he noted that telephone conversations had an even stronger claim to protection than sealed letters had. According to Justice Brandeis, because wiretaps indiscriminately capture all conversations between the target of the wiretap and those with whom he or she converses, “The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails.”
Because Justice Brandeis found unauthorized wiretapping to violate the Fourth Amendment, he regarded it as “immaterial where the physical connection with the telephone wires leading into the defendants’ premises was made.” In other words, the government invaded the defendants’ privacy rights even if they did not violate their property rights. Justice Brandeis also regarded as irrelevant whether the government agents were motivated by their interest in enforcing the law: “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” In addition, Justice Brandeis expressed outrage that the Supreme Court refused to exclude the evidence derived from wiretaps when the wiretaps themselves violated state law. “If the Government becomes a lawbreaker,” he warned, “it breeds contempt for law; . . . it invites anarchy.”
A few years after Olmstead was decided, Congress passed §605 of the Communications Act of 1934, which made wiretapping a federal crime even though it did not violate the Constitution. Although the new law explicitly prohibited law enforcement’s use of wiretaps, government agents disregarded the law and continued to use wiretaps and the evidence they disclosed. Few prosecutions were brought against those who conducted illegal wiretaps, and none were brought against government agents under the federal law. Some argued that illegal wiretapping would be pervasive until it was recognized to be a violation of the Fourth Amendment.
That happened in 1967, when the Supreme Court held that wiretapping and eavesdropping did in fact fall under the protection of the Fourth Amendment. A few years before, the Supreme Court had extended Fourth Amendment protection to the intangible conversations that the Olmstead court had been unwilling to protect, but it did so in the context of a physical intrusion. In Katz v. United States, 389 U.S. 347 (1967), the Court extended Fourth Amendment protection to government eavesdropping that occurred without a physical trespass, declaring that “the Fourth Amendment protects people—and not simply ‘areas.’” In his concurring opinion, Justice Harlan formulated the “reasonable expectation of privacy” test to replace the “constitutionally protected area” test. Although the former test has been subject to criticism, it stands as the touchstone of Fourth Amendment protection. While the decision in the Katz case untethered rights under the Fourth Amendment from private property rights, courts have more readily found constitutionally protected privacy interests in the home than outside of it. As for statutory law, Congress passed the Wiretap Act in 1968, which codified the constitutional requirements established by the Supreme Court the year before.
Justice Brandeis’s dissent in Olmstead expanded our understanding of the right to privacy from one based in tort law to one enjoying constitutional protections. His eloquent articulation of the right to be let alone has often been quoted elsewhere, including the opinions from other cases that have expanded constitutionally protected privacy. For example, it was cited in the famous cases of Griswold v. Connecticut, 381 U.S. 479 (1965),and Whalen v. Roe, both of which charted new ground in defining the parameters of a constitutionally protected privacy right.
The Olmstead case illustrates the difficulty of bringing privacy protections in line with new technologies. The various opinions each compared new practices to ones for which there were established precedents, but demonstrated that there are often several possible analogies, and different choices can mean different legal results. As the first case considering the constitutionality of electronic surveillance, Olmstead began the ongoing discussion about how much privacy we should expect in new communications technologies when the government decides it wants to listen in.

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