Katz and the 2017 CIA Leak

By Brenden Carol

Earlier this week, WikiLeaks released a trove of information regarding the CIA’s program of hacking individual’s information on smart phones, TV’s, and cars (Timberg, Dwoskin and Nakashima 2017). The CIA now possess the tools to successfully investigate individual communications and internet searches without the need to directly look at their property, or contact cell phone providers. I think that when the CIA cyber spying on Americans (which Wikileaks claims they do) using this advanced technology has implications the Fourth Amendment (ibid).

Justice Stewarts’ majority opinion for the Court in Katz v. United States (1967), shows an interesting and sensible path to follow as students of the law look into the recent WikiLeaks hacks. According to Justice Stewart the point of the Fourth Amendment is to protect people from unreasonable searches and seizures by the government. People are princes inside their own castles but they still have rights in public (Katz v United States 389 US 347 (1967). People have a reasonable assumption of privacy against government intrusion even in some public places such as a phone booth. Without a warrant the type of cyberespionage done by the CIA on Americans is illegal. It breaks not only the spirit of the Fourth Amendment but the Katz ruling. This type of search into individual’s communications, internet searches and computers is a violation of unreasonable searches and seizures.

One of the major findings in the WikiLeaks dump on CIA hacking is that the CIA can read encrypted text messages and messages from encryption apps, such as Whisper, WhatsApp, and Telegram, without needing to break every individual decipher. Now, let’s apply all of the same situations to the Katz case but instead imagine that the case was 60 years in the future and Charles Katz was messaging individuals using an encrypted app to organize gambling. In this hypothetical scenario, Mr. Katz was arrested because the CIA shared his messages with the FBI and neither agencies sought a warrant. The Supreme Court would still have likely thrown out the evidence regarding the case. Mr. Katz and the parties he communicated with still excepted and even sought out privacy in their communication. They communicated not in the public sphere but in private on privately owned and operated devices. The Fourth Amendment “protects individual privacy from against certain kinds of governmental intrusion” and having the government read private communications without a warrant would violate the Fourth Amendment (Katz v United States 389 US 347 (1967).

Justice Black in his dissent during Katz vs. United States (1967), stated that it is not the role of the Supreme Court change interpretations of the Fourth Amendment to “bring it into harmony with the times” (Katz v United States 389 US 347 (1967). I fundamentally disagree with his textualism approach when studying the Constitution. Times, technology and the way in which the government investigates individuals has changed in the over 225 years since the Fourth Amendment was ratified by the states. There was no way for the Founders to know that what a telephone would be nor was there any way for Justice Black to imagine that in 50 years there would be no more telephone booths. Our Constitutional understanding should advance to protect individuals from an ever-changing government.

Bibliography

Timberg, Craig, Elizabeth Dwoskin, and Ellen Nakashima. 2017. “WikiLeaks: The CIA is using popular TVs, smartphones and cars to spy on their owners.” The Washington Post. March 7. Accessed March 12, 2017. https://www.washingtonpost.com/news/the-switch/wp/2017/03/07/why-the-cia-is-using-your-tvs-smartphones-and-cars-for-spying/?tid=a_inl&utm_term=.7b70f69f960c.

Will Ingle says:

March 14, 2017 at 11:22 pm

I believe that Brenden was correct to include the information concerning the CIA and how easily they can use modern technology to gather information about almost anyone. Technology is constantly being upgraded at an alarming rate and the specifics of the fourth amendment will have to be updated as well. A very relevant piece of information is the percentage of people who now own cell phones, it is around two thirds of all adult citizens. While Mr. Katz was using a public phone I thought it was very interesting to put this situation 60 years into the future since hardly anyone uses public communication anymore. Text messaging is how nearly every adult communicates in the 21st century and the trend of people utilizing this method of communication only seems to be growing. The messages that were being exchanged from both parties were technically their property and the CIA had no right to send them to the FBI. This is where I think you should have included information on how the NSA stores all types of virtual information for the government. Should this be a violation of the fourth amendment? I know it has hardly anything to do with the case but it seemed to fit along quite well with the scenario that you put into place. What I found myself agreeing with the most is how you put emphasis on how the Supreme Court will have to continually update how it views cases dealing with the fourth amendment due to the advancements in technology. Individuals need to understand that sometimes change is good and that in this particular case the fourth amendment will only continue to become more outdated and will need to be updated protect the American citizens from having their privacy impinged upon.