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High Court Rulings Encourage Advocates
by Drew Clark
Privacy advocates are pleased with the Supreme Court's decisions in several high-profile cases this term, particularly an opinion earlier this month that sharply circumscribed the police's use of high-tech surveillance methods without a warrant.
In that case, Kyllo v. United States, Justice Antonin Scalia spoke for the court when he rebuffed law enforcement officials in Florence, Ore., who had used a thermal-imaging device to measure heat emitting from a home. The evidence from the heat scan demonstrated the use of high-intensity lamps and led to the arrest of Danny Kyllo for growing marijuana in his home.
The case is one of at least five this year on privacy issues -- usually but not always in the context of the Fourth Amendment's protections against the police's ability to search or arrest a suspect without a warrant. But while Kyllo may have been the most dramatic privacy opinion in the soon-to-expire Supreme Court term, experts in electronic surveillance and constitutional law still are analyzing the array of alliances that comprise a wildly shifting court majority for privacy rights.
A Privacy-Friendly Court?
"With the exception of the soccer-mom case" -- Atwater v. City of Lago Vista, where local police arrested and booked a mother driving her children to a soccer game because she wasn't wearing her seatbelt -- "the court signaled a significant turn for the better on Fourth Amendment issues," said Marc Rotenberg, executive director of the Electronic Privacy Information Center and a professor of privacy law at Georgetown University Law Center.
Rotenberg exuded praise for Scalia's decision in Kyllo, which essentially blocks the government's warrantless use of new technologies to explore otherwise unknowable details of a home. George Washington University law professor Jeffrey Rosen, author of The Unwanted Gaze: The Destruction of Privacy in America, was equally laudatory of Scalia, saying "he wrote a Supreme Court opinion that is an occasion for all friends of privacy to dance in the streets."
Scalia argued that the Bill of Rights must be understood in light of the technology in use when it was drafted in the late 18th Century. "We have said that the Fourth Amendment draws 'a firm line at the entrance to the house,'" Scalia wrote at the conclusion of his opinion, which was joined by an unlikely group of justices including David Souter, Clarence Thomas, Ruth Bader Ginsburg and Stephen Breyer. "That line, we think, must be not only firm but also bright -- which requires clear specification of those methods of surveillance that require a warrant.
"While it is clearly possible to conclude from the videotape of the thermal imaging that occurred in this case that no 'significant' compromise of the homeowner's privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward."
Bulwark Against Technology
"Scalia in Kyllo has a lot of people's eyes abuzz," said Rotenberg. "This is really remarkable coming from a court that is otherwise viewed as very deferential" to law enforcement.
Scalia joined the majority in Atwater and wrote the dissenting opinion in the court's privacy-friendly Ferguson v. City of Charleston ruling, and he similarly dissented in City of Indianapolis v. Edmond. In those decisions, the court's four liberals (Souter, Breyer, Ginsburg and John Paul Stevens) and two moderates (Sandra Day O'Connor and Anthony Kennedy) held that the cities had conducted illegal searches when Charleston drug-tested pregnant mothers and when Indianapolis set up roadblocks for the primary purpose of finding illegal drugs.
But the breadth of Scalia's opinion in Kyllo seemed to reverberate more loudly than the other three decisions, which tended to follow a more traditional line of thinking in the court's Fourth Amendment jurisprudence. Rotenberg said Scalia had written "a fairly strong announcement of a new rule -- he dresses it up in a lot of originalist framers' analysis -- that the Fourth Amendment is to stand as a bulwark against technology."
For Rosen, the virtue of Scalia's decision is that he does not fall into the trap of circular logic that has pervaded privacy decisions since the landmark 1967 Katz v. U.S.
In an influential concurring opinion in that case -- which held that eavesdropping through a listening device attached to a phone booth violated the Fourth Amendment -- Justice John Harlan said a person must have an expectation of privacy that society regards as reasonable for eavesdropping to be constitutional. But dissenting in Kyllo, Stevens argued that individuals do not have a reasonable expectation of privacy in the heat waves leaving their houses; therefore, police use of a thermal-imaging device does not constitute an illegal search.
Complicating Crosscurrents
Not all observers agreed that the high court is on a privacy-induced tear. "I don't see any trend" in the court's Fourth Amendment decisions this term, said Tim Lynch, director of the Cato Institute's project on criminal justice. "The justices seem to approach them on a case-by-case basis, and the problem is that the majority is made up of different people" each time, he said.
Although Lynch was pleasantly surprised by Scalia's insistence upon a warrant in Kyllo -- particularly because the trend in academia has been to downplay the importance of warrants in favor of "reasonableness" standards -- he said the Atwater case "will have more of an impact on the lives of ordinary citizens, and that is a very big transfer of power to the police."
Some doubt that it even makes sense to speak about privacy as a constitutional concept. "Privacy is a tremendously capacious word," said Eugene Volokh, a law professor at the University of California at Los Angeles who is an expert on the First Amendment and privacy. "It is a mistake to think about privacy generally" instead of as a range of concepts that include reproductive matters like abortion and contraception, constitutional limits on law enforcement, and information-collection practices.
Volokh said the Supreme Court rightly rejected cell-phone privacy rights in favor of a radio station's First Amendment right to broadcast a tape of an illegally intercepted conversation. In the closely watched case, Bartnicki v. Vopper, the same majorities that ruled in Ferguson and Edmond held that radio host Frederick Vopper could not be prosecuted under wiretap laws merely because he broadcast the tape, as opposed to conducting an intercept himself.
"Bartnicki is an important case partly for what it didn't do," said Volokh. "If Bartnicki had gone the other way, it would have been tremendously damaging" to free speech because it could have extended to a ban on the publication of leaked documents.
But privacy advocates like Rotenberg view Bartnicki in more limited terms and argue that the court's decisions this term have set the stage for Congress to enact broader privacy rules. For Rotenberg, Kyllo could be used as legal ammunition to attack the face-scanning technology deployed by police during this year's Super Bowl game in Tampa, Fla. Rosen disagrees, instead viewing full-body imaging scanners developed by the Federal Aviation Administration as a more optimal target under Scalia's reasoning.
In either case, the decision has given some privacy advocates cause for new hope.
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