“The Uninvited Ear” – PLSC 337-02: The American Legal System

Charles Katz was suspected of placing bets and illegally transmitting gambling information over the phone to other states. In order to gather evidence, FBI agents placed listening and recording devices outside of the public phone booth that was used by Katz. Law enforcement officials did not have a warrant to listen to Katz’s conversations, however the transcripts of the conversations were used to convict Katz under an eight-count indictment. Katz challenged the conviction by arguing that the transcripts could not be used as evidence against him as the telephone booth was a “constitutionally protected area.” The government argued that because there was no “physical penetration” of Katz’s space inside the telephone booth, there was no Fourth Amendment violation. The main legal question in this case is, does attaching electronic listening and recording devices outside of a public phone booth and using it as evidence against a person violate the Fourth Amendment’s protection against unreasonable searches and seizures? In a 7-1 decision, with Justice Stewart writing the majority opinion, the Court ruled that Katz was entitled to Fourth Amendment protection for his conversations in the public phone booth.

I agree with the opinion of the Court and find it very interesting in terms of the constitutional questions at hand. The Court did not agree with the way in which the issues were originally formulated, and argued that too much significance was placed on the characterization of the telephone booth. Therefore, instead of asking whether a telephone booth can be characterized as a constitutionally protected area, the correct question would be to look at whether listening and recording Katz’s conversation violated his right to privacy. I found myself asking questions similar to the ones that Katz was originally asking. I was also wondering whether a public telephone booth is a constitutionally protected area, and I also felt it necessary to distinguish between whether the device was placed outside or inside of the phone booth. However, after reading the opinion of the Court, it is now clear to me that looking at the case through this framework is misleading in terms of interpreting the Fourth Amendment. Katz entered the public phone booth with the intention of having a private conversation. By recording and listening to Katz’s private conversations, the FBI’s actions constituted a “search and seizure” and thus violated Katz’s Fourth Amendment rights. The FBI agents did not act with any judicial authority, and the searches were conducted completely outside of the judicial process. People have the right to be confident that they are free from unreasonable searches and seizures. The fact that the Fourth Amendment protects people and not places is a key concept in this case, and for all future cases that deal with technology and Fourth Amendment rights.

While I agree with the opinion of the majority, I am a bit skeptical of Justice Harlan’s concurring opinion regarding a twofold requirement to interpret the Fourth Amendment. Justice Harlan stated that 1) a person must have an actual, subjective expectation of privacy and 2) that the expectation must be objectively reasonable. I found this test rather difficult to interpret and confusing for a few reasons. Is a person only entitled to privacy in places where they are expected to have it? What makes an expectation of privacy reasonable? How do you measure how reasonable an expectation is? Is it considered reasonable based on the interpretation of a reasonable individual or is the interpretation up to the Court? Even with my confusion, I agree with Justice Harlan’s opinion and the necessity of the twofold test.

In Katz vs. U.S, the court noted that Katz was not trying to get away from the “intruding eye,” but instead he was fleeing the “uninvited ear.” Katz vs. U.S took place in 1967 and already the concept of someone using a public phone booth is almost a foreign concept to us. In today’s world it seems as though the “uninvited ear” could be almost anywhere, even in our own homes or within our personal cell phones. The introduction of new technology combined with greater expectations and needs for security continue to make interpretation of the Fourth Amendment difficult. After reading Katz vs. U.S, I wondered how the Katz test would be applied when a national security issue was at hand. Do you guys think that the Katz test would be applicable to searches conducted for national security matters?

Katz v. United States 389 U.S. 347 (1967).

Claire Mendelson says:

March 13, 2017 at 12:45 pm

I think this is a thorough analysis of the case, and I agree with your assessment of the majority and concurring opinions. You also raise an interesting point about national security and how it connects to Katz. To learn more about the issue I skimmed through the full opinion of this case and in Footnote 23 the Court explicitly excludes national security issues from the Katz precedent: “Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by the case.” Presumably the intent of this footnote was to set up a future case in which the Court could rule on the limits of the Fourth Amendment regarding national security issues.

In writing the Bill of Rights the Founders were influenced by Enlightenment philosophers like John Locke, who held that the government’s purpose is to protect the rights of the people. As such, the Bill of Rights (including the Fourth Amendment) is intended to prevent the government from encroaching upon the rights and liberties of individuals. This would suggest that the government should not be able wiretap a person’s phone or engage in electronic surveillance of individuals, unless there is a warrant. However, in situations involving national security, I think that the Court should move away from a natural rights interpretation of the Fourth Amendment and instead apply a utilitarian standard. The government should aim to do the most good for the most amount of people, and national security issues must (reasonably) supersede individual rights – after all, it is challenging for individuals to exercise their rights and liberties when national security is at stake.