1. Privacy of Communications: Snail Mail to Telephones

2. Privacy: Snail mail  1710 – Postal service in British colonies created. Opening letters forbidden without authorization from secretary of state.  1878 – Supreme Court rules (Ex Parte Jackson) government can’t open first-class mail without a search warrant. 'The Fourth Amendment protects the privacy of U.S. mail as if it had been kept by the sender in his home.'

3. Snail Mail Still Protected By 4 th Amendment “Can Postal Inspectors open mail if they feel it may contain something illegal? First-Class letters and parcels are protected against search and seizure under the Fourth Amendment to the Constitution, and, as such, cannot be opened without a search warrant… Other classes of mail do not contain private correspondence, and therefore may be opened without a warrant.” http://www.usps.com/postalinspectors/faq-is.htm

4. Privacy: Telegraphy  Lincoln gives executive order for government to seize all copies of telegrams sent within past six months at outbreak of Civil War.  1880 – Missouri Supreme Court rules that requests for telegrams by gov’t must include date and subject of the message. Other courts follow.

5. Privacy: Telephones (Definitions) Consensual Overhear: Victim (of kidnap, blackmail) records call from criminal. Wiretapping: Interception of telephone conversations, aimed at a particular target, by the police. Pen register: A log of all phone numbers called from a particular phone. Trap and trace: A log of all phone numbers that call a particular phone.

6. Telephones: Olmstead  Olmstead v. United States (1928) Supreme Court: 'There was no searching…. The evidence was secured by the use of … hearing and that only….' Fourth Amendment only protects tangible property.

7. Olmstead: Judge Brandeis’s famous dissent  “Protection against such invasion of 'the sanctities of a man's home and the privacies of life' was provided in the Fourth and Fifth Amendment by specific language... But 'time works changes, brings into existence new conditions and purposes.' Subtler 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.”

8. Olmstead: Judge Brandeis’s dissent II  “Moreover, 'in the application of a Constitution, our contemplation cannot be only of what has been, but what may be.' The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways 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...”

9. Olmstead: Judge Brandeis’s dissent III  “Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all conversations between them upon any subject, and although proper, confidential and privileged, may be overheard…. As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire tapping.”

10. Privacy: Telephones III  Federal Communications Act (FCA) (1934) FCC created. Prohibits “interception and divulgence” of wire communications. (similar to Radio Act of 1927)  Nardone v. United States (1937) Supreme Court: Warrantless wiretap information not admissible, nor is evidence derived from such wiretaps, from FCA.  WW II: Justice department interprets Nardone to forbid “intercepting” AND “divulging” information.

11. Privacy: Telephones IV  Katz v. United States (1967) “a person in a telephone booth may rely upon the protection of the Fourth Amendment…. Wherever a man may be, he is entitled to know that he will remain free from unreasonable search and seizures.” Allowed short surveillances of a few conversations, if approved by a judge based on a special showing of need.

12. Privacy: Pen Registers United States v. Miller (1976)  No constitutional right to business records held by third party. Smith v. Maryland (1979)  Given US v Miller, pen registers are not forbidden by the Fourth Amendment