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Donald Dripps discusses that the Fourth Amendment’s text does not protect “persons, houses, papers and effects” but rather protects the right to be secure in persons, houses, papers and effects. The common law treated eavesdropping as a violation of the right to the security of the home.

Image courtesy of interviewee. March 27, 2024

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This video discusses the complexities surrounding the Fourth Amendment and electronic surveillance in the context of legal protections against unreasonable searches and seizures. It explains that a search warrant is required to intercept phone calls or access emails and texts, a process governed by laws established by Congress. The necessity for a warrant arises from the Supreme Court case Katz v. United States, which expanded the interpretation of the Fourth Amendment to include a person's reasonable expectation of privacy.

Historically, debates have centered around whether the Fourth Amendment should be interpreted narrowly to only cover physical intrusions, as seen in the Olmsted case, or more broadly to encompass various forms of privacy invasions, including eavesdropping and the collection of data in modern contexts. Landmark cases such as Kyllo v. United States and Carpenter v. United States demonstrate how the courts have grappled with these issues. In Carpenter, the court ruled that collecting extensive location data from cell phones constitutes a Fourth Amendment search that requires a warrant.

The author critiques Justice Thomas's dissent in Carpenter, arguing for a broader understanding of privacy rights that transcends mere physical intrusion, emphasizing the historical common law protections against eavesdropping as part of privacy rights. The main conclusion stresses that contemporary legal questions about privacy should not revert to the narrow interpretations exemplified by previous decisions but should recognize the evolving nature of surveillance and privacy in a modern context.

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Here are five key points from the video discussing the Fourth Amendment and electronic surveillance:

1. **Need for a Warrant**: The process for obtaining an electronic surveillance order (like intercepting phone calls or accessing emails) is extensive and requires approval from the Justice Department in Washington, D.C., as established under statutory authority from Congress. A warrant is necessary due to a Supreme Court ruling in the Katz case, which expanded the definition of searches and seizures to include electronic surveillance.

2. **Katz Case and Privacy Expectations**: The Katz v. United States case determined that the Fourth Amendment protects individuals' rights to reasonable expectations of privacy, not just against physical intrusions. This case has shaped contemporary interpretations of what constitutes a search or seizure, emphasizing that privacy in communications is paramount.

3. **Historical Convideo and Common Law**: The video discusses the evolution of the Fourth Amendment and its intent to protect individuals from invasive government practices, like general warrants used by British authorities. It argues for a broader interpretation of privacy rights that includes electronic communications, rooted in established common law protections against eavesdropping.

4. **Recent Jurisprudence**: The discussion includes modern cases, such as Carpenter v. United States, which ruled that the extensive collection of location data from cell phones constitutes a Fourth Amendment search, requiring a warrant. This reflects a recognition that the aggregation of public information can violate privacy rights.

5. **Ongoing Debate**: The video highlights an ongoing legal debate among justices regarding the application and scope of the Fourth Amendment concerning electronic surveillance and privacy protections. The argument centers on whether these protections should be confined to physical intrusions or should inherently include various forms of non-physical surveillance that affect individuals' privacy.

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Here are some key quotes from the video:

1. **On the nature of search warrants and electronic surveillance**:
- "The dropping order is a search warrant... that's issued, uh, the intercept phone calls or, uh, extract, uh, the content of emails and video messages."

2. **On the Constitutionality and legal framework**:
- "Um, and all of that's done under statutory authority from Congress."
- "The only reason they need a warrant is because of a Supreme Court case called Katz against the United States."
- "The Fourth Amendment says, uh, the right of the people that these secure in their person's houses, papers, and effects, uh, shall not be violated."

3. **Historical convideo of the Fourth Amendment**:
- "The founders of the Republic adopted that language to make sure that the new federal government could not exercise its revenue powers the way England had exercised its revenue powers with written assistance and general warrants."

4. **On the Katz case and expectations of privacy**:
- "The Court said that searches and seizures includes more than just breaking into houses. It includes interference with reasonable expectations of privacy."
- "The Fourth Amendment protects people, not places."

5. **On the evolution of legal interpretation**:
- "There can be searches without physical intrusions... the current jurisprudence... includes examples like the use of a thermal imager."
- "When the government collects a substantial amount of location data from your cell phone provider tracking your movements in public space, that is a Fourth Amendment search that requires a warrant."

6. **On Justice Thomas’ dissent in Carpenter case**:
- "Justice Thomas has a formidable dissent in that case where he says that we should go back to Olmsted... and limit the Fourth Amendment to the protections of the common law ports of trespass and false arrest."

7. **Final thoughts on the legal landscape**:
- "Whatever we do next in the Fourth Amendment area, we shouldn't go back to the Olmsted idea that Justice Thomas is celebrating in his Carpenter dissent."
- "You can't answer those questions simplistically by saying they didn't invade the privacy of the home, they didn't take his property, they didn't arrest his body."

These quotes encapsulate the discussion of electronic surveillance, the historical and legal convideo of the Fourth Amendment, and the ongoing debates regarding privacy rights and judicial interpretations.

X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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The dropping order is a, is a search warrant

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that's issued, the intercept phone calls

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or, extract, the content of emails

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and text messages.

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Um, and all of that's done under statutory

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authority from Congress.

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Um, and it's a quite a demanding process to get an,

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an electronic surveillance order.

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Um, there's a limited number of crimes,

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which it can be issued in the federal practice.

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That order has to be approved not

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by the US Attorney's Office,

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but by the main Justice Department in Washington d

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and it's a very involved in costly process.

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They don't do that unless they're very serious about things.

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But the only reason they need a warrant is

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because of a Supreme Court case called cats

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against the United States.

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And in the Katz case, the court said that searches

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and seizures includes more than just breaking into houses.

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It includes interference

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with reasonable expectations of privacy.

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Um, and that case has been controversial level.

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It was decided, the Fourth Amendment says, the right

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of the people that these secure in their person's houses,

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papers, and effects, shall not be violated

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and that no warrants will issue,

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but upon probable cause, particularly describing the places

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to be searched and the things,

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and the, the founders of the Republic adopted that language

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to make sure that the new federal government could not

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exercise its revenue powers the way England had exercised

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its revenue powers with written assistance

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and general warrants.

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Um, and so, so the language came out of turn

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with general warrants and general warrants were bad

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because if the, customs inspectors broke into your house

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with a general warrant,

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they had immunity from any subsequent tort.

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It was basically a license to break into houses,

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and it wasn't restricted, to any particular location

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or any particular time.

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And it didn't require any particular antecedent suspicion.

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The debate has always been about whether the Fourth

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Amendment is limited to those kinds of immunized,

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physical intrusions into private premises,

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or whether it extends more broadly.

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Um, and, the, the fulcrum for that,

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debate was eavesdropping, as you say.

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Um, it came up in some prior cases involving telegrams

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and, warrants for papers and so forth.

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But, but it, it's, its fulcrum was, wired down.

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And in, the Olmsted case, back in the 1920s.

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Uh, Ben was a bootlegger.

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And, the government had the agents,

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prohibition agents had listened in on his conversations,

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and, and he tried to have those conversations excluded from

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evidence as the result of an illegal search.

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And the court was closely divided,

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and it included some of the most illustrious

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justices to ever serve.

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It was Chief Justice Tafta wrote the majority opinion.

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He had been president of the United States

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and Speaker of the House of Representatives.

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Nobody knew more about American government.

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He, the dis included Oliver Wendell Holmes and Brandeis.

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Um, again, that All Star

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and the majority saw it as a, involving no search or seizure

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because there was no physical intrusion.

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And to the extent that there had been a physical intrusion,

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it had been to the wires of the telephone company,

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not to olmsteds.

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Uh, but the dissenters, took the view

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that the purpose of the Fourth Amendment fresh

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beyond abuses, which gave at birth that those, the purpose

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of the amendment was to protect, privacy.

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At least that was the Brandeis, dissent, the most famous

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of, of the dissenting opinions.

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Uh, and it was, he, he didn't say,

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we're gonna make it up as, as we go along.

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He said that, the makers of our constitution,

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the founders, had recognized that,

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human life involves more than material things,

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and they wanted to protect the privacy of the home,

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the sanctity of the human mind and so forth.

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Uh, and he grew out of that, what he,

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but he said that he said, he said the founders wanted

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to protect, the right to be,

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let alone the most comprehensive of rights

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and the rightmost valued by civil rights mean.

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And so the debate has gone on since then with one group

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of justices saying, we should limit the Fourth Amendment

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to the kinds of physical intrusions into private property

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that gave it birth.

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And another group of justices who say

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that we should expand it, to cover it's,

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we should expand it, it's reached to cover the cases

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where its purposes are implicated,

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even if there's no physical intrusion.

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Uh, and the Brandeis opinion prevailed in the Katz case

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about 30 years later, 19 6 7, where, the court,

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says, the Fourth Amendment protects people, not places.

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Uh, and if it does an intrusion on a reasonable expectation

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of privacy, then, government needs to warrant

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because it's a fourth Amendment.

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That's the kind of the debate.

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So the, current jurisprudence, the law is that,

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there can be searches without physical intrusions.

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Um, so for instance, following the Katz case,

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in a case called Kylo against the United States, the,

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the court held that, when the government agents used a,

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a thermal imager, which is a device

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that measures heat sources emanating from the house,

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and shows particularly, intense concentrations of heat

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with the, drug enforcement people interpret, interpreted

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as a sign of, of grow lights being used

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to grow marijuana plants indoors out of sight.

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Um, that was assert

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because it showed you something inside the home

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that you couldn't have gotten to in,

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1791 when the Fourth Amendment opted,

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gave you information about the interior of the house

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that you would've had to break into, to get,

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at the founding, of the Republic.

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Um,

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and so, the most recent iteration of this,

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jurisprudence is the carpenter case, 2018,

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where the majority five to four, including some justices

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who are no longer on the court, held that,

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when the government collects a substantial amount of

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Location data from your cell phone provider

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tracking your movements in public space, that

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that is a Fourth Amendment search that requires a warrant.

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Uh, and so there you have a situation where,

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what happened was that the cell phone records

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aggregated the location data of a person in public,

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and you don't have a reasonable expectation

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of privacy in your appearance in public.

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But when the government is able to, trace every step

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that you take for a week, a month, a year,

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that aggregation of public information becomes troublesome.

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Uh, and the court said that it becomes so troublesome

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that amounts to intrusion on a reasonable expectation

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of privacy and require warrant.

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There's an additional layer there, which is that the,

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the actual, demand for the information didn't go

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to the defendant and carpenter it went to the, it, it,

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it went to the cell phone provider, Verizon.

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Uh, now Justice Thomas has a formidable dissent in that case

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where he says that we should go back to homestead and,

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and, limit, the, fourth amendment

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to the protections of the common law ports

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of trespass and false arrest.

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And, and the value added of, of this latest paper,

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of mine is to say the common law protected the interior

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of the home from things other than physical intrusion.

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They had the, the public nuisance of eavesdropping,

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which was a crime, not a serious one, but a crime.

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And, anyone in the community could seek an indictment

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against an eavesdropper.

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Uh, but you had to prove multiple instances

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of eavesdropping had to be a common eavesdropper.

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Uh, and then the remedy wasn't damages.

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The remedy was that the eavesdropper would be put

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under a sort of a bond.

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He had to find assurities to put up a bond to make sure

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that he wouldn't be eavesdropping again.

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Um, so it was a very different kind

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of proceeding than those port actions,

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for intrusion into my physical space,

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and I want money for it here.

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It was protecting, the privacy of communications

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in the interior of the home with a preventive

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and prospective remedy that was available

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to everybody in the community.

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And that was a fixed part of the common law.

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So I think Justice Thomas is being,

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he's taking too narrow a view of the protections of the home

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that the common law provided,

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and its common law doctrine of eavesdropping,

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like I said, was well established

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and was understood to be a protection of the home,

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just like laws against burglary and arson

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and courts like trespass.

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The, the main conclusion is a negative one, that,

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whatever we do next in the Fourth Amendment area,

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we shouldn't go back to the Olmsted idea

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that Justice Thomas is celebrating in his,

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carpenter dissent.

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There, there, there never was a period

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of time when the protections, for the privacy

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of the home were limited to laws against physical inclusion.

08:40.725 --> 08:44.475
Um, now what you do with that in the modern world

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where our cases are things like,

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pole camera surveillance of the home,

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but from the outside for six months or a year at a time, or

08:55.145 --> 08:58.735
Where it's aggregation of license plate,

08:59.215 --> 09:02.895
GPS date timestamps, which are automatically collected

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and put into a database with billions of hits

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that they can search by the license plate

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number or the location.

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How you, how you apply that is a different question.

09:11.305 --> 09:14.605
But I think the takeaway from my paper is

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that you can't answer those questions simplistically

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by saying they didn't invade the privacy of the home,

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they didn't take his property, they didn't arrest his body.

09:23.385 --> 09:25.445
You can't answer those questions, and that's simplistic.

Electronic Surveillance and Privacy Debates

00:00:00 - The dropping order is a, is a search warrant that's issued, the intercept phone calls or, extract, the content of emails and text messages. and all of that's done under statutory authority from Congress. and it's a quite a demanding process to get an, an electronic surveillance order. there's a limited number of crimes, which it can be issued in the federal practice. That order has to be approved not by the US Attorney's Office, but by the main Justice Department in Washington d and it's a very involved in costly process. They don't do that unless they're very serious about things.
00:00:36 - because of a Supreme Court case called cats against the United States. And in the Katz case, the court said that searches and seizures includes more than just breaking into houses. It includes interference with reasonable expectations of privacy. and that case has been controversial level. It was decided, the Fourth Amendment says, the right of the people that these secure in their person's houses, papers, and effects, shall not be violated and that no warrants will issue, but upon probable cause, particularly describing the places
00:01:08 - and the, the founders of the Republic adopted that language to make sure that the new federal government could not exercise its revenue powers the way England had exercised its revenue powers with written assistance and general warrants. and so, so the language came out of turn with general warrants and general warrants were bad because if the, customs inspectors broke into your house with a general warrant,
00:01:38 - It was basically a license to break into houses, and it wasn't restricted, to any particular location or any particular time. And it didn't require any particular antecedent suspicion. The debate has always been about whether the Fourth Amendment is limited to those kinds of immunized, physical intrusions into private premises, or whether it extends more broadly. and, the, the fulcrum for that,
00:02:09 - it came up in some prior cases involving telegrams and, warrants for papers and so forth. But, but it, it's, its fulcrum was, wired down. And in, the Olmsted case, back in the 1920s. Ben was a bootlegger. And, the government had the agents, prohibition agents had listened in on his conversations, and, and he tried to have those conversations excluded from evidence as the result of an illegal search.
00:02:40 - and it included some of the most illustrious justices to ever serve. It was Chief Justice Tafta wrote the majority opinion. He had been president of the United States and Speaker of the House of Representatives. Nobody knew more about American government. He, the dis included Oliver Wendell Holmes and Brandeis. again, that All Star and the majority saw it as a, involving no search or seizure because there was no physical intrusion. And to the extent that there had been a physical intrusion, it had been to the wires of the telephone company,

Debate on Fourth Amendment Privacy Protections

00:03:13 - but the dissenters, took the view that the purpose of the Fourth Amendment fresh beyond abuses, which gave at birth that those, the purpose of the amendment was to protect, privacy. At least that was the Brandeis, dissent, the most famous of, of the dissenting opinions. and it was, he, he didn't say, we're gonna make it up as, as we go along. He said that, the makers of our constitution, the founders, had recognized that, human life involves more than material things,
00:03:43 - the sanctity of the human mind and so forth. and he grew out of that, what he, but he said that he said, he said the founders wanted to protect, the right to be, let alone the most comprehensive of rights and the rightmost valued by civil rights mean. And so the debate has gone on since then with one group of justices saying, we should limit the Fourth Amendment to the kinds of physical intrusions into private property that gave it birth. And another group of justices who say that we should expand it, to cover it's,
00:04:17 - where its purposes are implicated, even if there's no physical intrusion. and the Brandeis opinion prevailed in the Katz case about 30 years later, 19 6 7, where, the court, says, the Fourth Amendment protects people, not places. and if it does an intrusion on a reasonable expectation of privacy, then, government needs to warrant because it's a fourth Amendment. That's the kind of the debate. So the, current jurisprudence, the law is that,
00:04:50 - so for instance, following the Katz case, in a case called Kylo against the United States, the, the court held that, when the government agents used a, a thermal imager, which is a device that measures heat sources emanating from the house, and shows particularly, intense concentrations of heat with the, drug enforcement people interpret, interpreted as a sign of, of grow lights being used
00:05:21 - that was assert because it showed you something inside the home that you couldn't have gotten to in, 1791 when the Fourth Amendment opted, gave you information about the interior of the house that you would've had to break into, to get, at the founding, of the Republic. and so, the most recent iteration of this, jurisprudence is the carpenter case, 2018, where the majority five to four, including some justices
00:05:54 - when the government collects a substantial amount of Location data from your cell phone provider tracking your movements in public space, that that is a Fourth Amendment search that requires a warrant. and so there you have a situation where, what happened was that the cell phone records aggregated the location data of a person in public, and you don't have a reasonable expectation of privacy in your appearance in public. But when the government is able to, trace every step

Privacy Intrusion and the Fourth Amendment Debate

00:06:27 - that aggregation of public information becomes troublesome. and the court said that it becomes so troublesome that amounts to intrusion on a reasonable expectation of privacy and require warrant. There's an additional layer there, which is that the, the actual, demand for the information didn't go to the defendant and carpenter it went to the, it, it, it went to the cell phone provider, Verizon. now Justice Thomas has a formidable dissent in that case where he says that we should go back to homestead and,
00:06:58 - to the protections of the common law ports of trespass and false arrest. And, and the value added of, of this latest paper, of mine is to say the common law protected the interior of the home from things other than physical intrusion. They had the, the public nuisance of eavesdropping, which was a crime, not a serious one, but a crime. And, anyone in the community could seek an indictment against an eavesdropper. but you had to prove multiple instances of eavesdropping had to be a common eavesdropper.
00:07:31 - The remedy was that the eavesdropper would be put under a sort of a bond. He had to find assurities to put up a bond to make sure that he wouldn't be eavesdropping again. so it was a very different kind of proceeding than those port actions, for intrusion into my physical space, and I want money for it here. It was protecting, the privacy of communications in the interior of the home with a preventive and prospective remedy that was available to everybody in the community.
00:08:02 - So I think Justice Thomas is being, he's taking too narrow a view of the protections of the home that the common law provided, and its common law doctrine of eavesdropping, like I said, was well established and was understood to be a protection of the home, just like laws against burglary and arson and courts like trespass. The, the main conclusion is a negative one, that, whatever we do next in the Fourth Amendment area, we shouldn't go back to the Olmsted idea that Justice Thomas is celebrating in his,
00:08:32 - There, there, there never was a period of time when the protections, for the privacy of the home were limited to laws against physical inclusion. now what you do with that in the modern world where our cases are things like, pole camera surveillance of the home, but from the outside for six months or a year at a time, or Where it's aggregation of license plate, GPS date timestamps, which are automatically collected
00:09:23 - that they can search by the license plate number or the location. How you, how you apply that is a different question. But I think the takeaway from my paper is that you can't answer those questions simplistically by saying they didn't invade the privacy of the home, they didn't take his property, they didn't arrest his body. You can't answer those questions, and that's simplistic.

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