Habeas Data_Privacy vs. The Rise of Surveillance Tech Read online

  Presciently, that was exactly the point made by Justice Louis Brandeis, then roughly midway through his fabled tenure on the court, in a dissent in which he referenced Otis’ famous speech.

  “The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping,” Brandeis wrote. “Ways may someday 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.”

  He continued, citing the Framers, asserting that they “sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.”

  Decades later, when Schneider told the 1967 Supreme Court, in the opening minutes of his argument in the Katz case, “The FBI Agents had undoubtedly read their homework and had not physically penetrated into the area of the telephone booth,” he was largely referring to the Olmstead precedent. The government in the 1960s, as it had in the 1920s and decades earlier, relied solely on the physical trespass of the space.

  In Katz, that meant that the FBI did not invade Katz’ possibly private space—a telephone booth—but they went physically right up to the edge of it.

  * * *

  The Katz case originated in October 1964, when FBI agents in Los Angeles were tipped-off to a local betting man. By February 1965, the FBI had determined that this person was 53-year-old Charles Katz, and that he lived at Sunset Towers West, 8400 Sunset Boulevard, Room 122.

  Nearly every day, agents watched the dapper middle-aged man leave his apartment on Sunset Boulevard, and walk just a few blocks down to a bank of three telephone booths at 8210 Sunset Boulevard, across the street from the Chateau Marmont hotel. To anyone who might have seen Katz, he simply looked like a businessman. He wore suits, button-up shirts, and long ties, according to Joseph Gunn, a Los Angeles Police Department (LAPD) officer who testified at Katz’ two-day bench trial.

  “Some of these telephone calls,” Benjamin Farber, a federal prosecutor, said during an April 5, 1965 court hearing, “were being placed to a telephone number in Massachusetts which was listed to an individual whose reputation was well known to the Federal Bureau of Investigation as that of a gambler.”

  Katz, it turned out, was a handicapper, someone who studies the outcomes of sporting events and places large bets on them. He’d been doing it for 30 years in Los Angeles, he told agents later, and claimed he made $60 a week (or $470 in 2017 dollars). After establishing a pattern of behavior, on February 19, FBI agents placed a microphone on top of two of the phone booths that were part of the bank of three that Katz liked to use. Likely as a way to make their jobs easier, law enforcement disabled one of the booths—with the phone company’s permission—simply by putting a sign on the third one saying, “OUT OF ORDER.” This tactic encouraged Katz to choose between the centermost and easternmost booths.

  The FBI and the LAPD assigned several people to the Katz investigation. The FBI went as far as to rent the room next to Katz’ in the Sunset Towers West—Room 123. Katz sometimes called East Coast bookies from his room and he could plainly be heard in the hallway outside his room. At the time, both federal and local law enforcement were particularly interested in vice cases, not only because they were illegal, but because controlling gambling was a powerful check on police corruption.

  “We felt in LA that there wasn’t any corruption as far as cops taking bribes, so one of the ways you make sure that there aren’t takes like that is to get involved,” Gunn, who retired from the LAPD in 1983 after 20 years on the force, told me. “You make sure that they don’t get a major foothold and that they’re not trying to pay off cops for protection.”

  Gunn was well-aware of the potential of his fellow officers to be corrupted. In fact, just one year earlier, in 1964, Gunn learned that his partner, Henry De Maddalena, a veteran vice officer, was accepting bribes from another bookmaking ring. At the behest of Police Chief William H. Parker, Gunn went undercover and helped dismantle one of the city’s largest gambling rings. In the end, two LAPD officers, including De Maddalena, and four other men were found guilty of illegal betting and bribery.

  The recording operation of Katz began on February 19, 1965. One team of agents would watch Katz at home, and then would radio to another agent closer to the phone booths. The two microphones and recording apparatus only took about a minute or so to set up—one person had to scramble up to the top of the booth and turn it on before Katz arrived. (Amazingly, during the six days that Katz was under surveillance, only one other person came to use the phone booth around the same time as he.) Then, once Katz left, the agents would turn the microphones off. In addition, agents also created a false surface on the counter of the phone booths, with carbon paper secretly placed underneath, so that it would capture anything that Katz wrote.

  After recording Katz’ calls for nearly a week, and in combination with the observations near his apartment, they moved in and arrested him on February 25 at the phone booth. Armed with a warrant, the LAPD and the FBI searched his apartment and recovered 148 written pages of betting notes, various sports magazines, and two $10 rolls of quarters, among other items. When he was arrested, Katz was polite and did not resist.

  It was during Katz’ two-day bench trial at the federal district court (the lowest level of federal court) in May of 1965 that Harvey Schneider’s boss, Burton Marks, laid out the beginnings of his argument about the expectation of privacy.

  “I think that Olmstead is a dead letter,” he told US District Judge Jesse Curtis. “It hasn’t been specifically overruled, but either by this case or some other case it is going to be in the very near future…The right to privacy doesn’t just extend to a person’s home, it extends to his office, and I believe it extends to any place in which there is intended to be privacy.”

  The judge was unconvinced; Katz was convicted and sentenced to a $300 fine (approximately $2,300 in 2017 dollars). Marks appealed to the 9th Circuit US Court of Appeals, where again, he reprised his arguments. Marks was denied, and the stage was set for a writ of certiorari petition—that is, the appeal to the Supreme Court.

  * * *

  Burton Marks didn’t argue against Olmstead due to mere bluster. Rather, the choice was tactical.

  Just as general writs were an anathema to the values of Colonial Americans, so too was the entire concept that a person’s telephone calls could be easily invaded without warning to modern Americans. Although the Supreme Court had not formally taken up the issue until the 1920s, other lower federal courts and even some local courts had, albeit sometimes in roundabout ways.

  For example, on December 1, 1907, the New York Times reported on a curious local case where a Tenth District Municipal Court judge had ruled that “a protesting tenant has rights of privacy in the telephone that connects his apartment with the outside world.”

  The case involved a rental dispute and a tenant who was being eavesdropped upon by his landlord’s wife on the common telephone line for the entire building. Judge Wauhope Lynn noted that the telephone had “passed the period of experiment and is now a real living part of ourselves.” He went on, “where it is installed as a part of an apartment house and made an inducing cause for the rental of such apartment, then its presence must be regarded as a sacred part of the home, entering into its privacies and secrets and giving communion with those we love and cherish.”

  Of course, this case was a civil and not a criminal matter, and it was only relevant to the local court, but it is illustrative of at least some of the typical judicial thinking of the era. In the nineteenth century and well into the twentieth, sensitive telegrams often had the protection of some type of encryption. The telephone, by contrast, typically did not. Most people did not speak in code, and they usually didn’t write letters in code, either. Judges were responding to the obviousness of this to people of the time.

  In 1931, no less an authority than the head of the FBI, J. Edgar Hoover—certainl
y no wilting flower when it came to aggressive law enforcement—declared during a Senate hearing that he thought wiretapping was “unethical.” (Hoover rather dramatically changed his tune on this later on.)

  In 1932, a federal judge in Boston, during a bootlegging trial, denounced federal agents’ wiretapping as a “contemptible, vile practice.”

  Two years later, Congress passed the Communications Act of 1934, which, among other things, established the Federal Communications Commission. Notably, the act specifically forbade wiretapping under Section 605. (However, federal agencies routinely ignored the law and conducted wiretaps, although they were forbidden from introducing the evidence at trial.)

  In short, by the time of Katz, there was a growing consensus that wiretapping—or even warrantless eavesdropping, as was the case in Katz—was improper.

  * * *

  Three Supreme Court cases in particular had a significant influence on Marks and Schneider’s view that Olmstead was “dead letter”—one from the 1940s, one from 1961, and another decided in June 1967, just after Katz’ cert petition had been submitted. Taken together, these three cases offered a distinct roadmap for how the young Los Angeles lawyers might convince the Warren Court in the fall of 1967.

  The first of those cases, Goldman v. United States (1942), involved men who had been indicted for conspiracy to violate federal bankruptcy laws. The defendants had been eavesdropped upon by federal agents who rigged up a “listening apparatus in a small aperture in the partition wall with a wire to be attached to earphones extending into the adjoining office.” Using this system, authorities were able to overhear and ultimately transcribe crucial moments of the conspiracy, which proved to be grounds for their indictment.

  The men attempted to challenge the collection of this evidence, on the grounds that it violated both the Fourth Amendment and Section 605 of the Communications Act. Denied by lower courts, they challenged it up to the Supreme Court, which upheld the ruling.

  The Supreme Court ultimately found (5–3) that the surveillance system was “no more the interception of a wire communication within the meaning of the Act than would have been the overhearing of the conversation by one sitting in the same room.”

  As in Olmstead, the case largely turned on whether a trespass had occurred, and it had not. However, again, the more liberal members of the court dissented, largely reiterating what Brandeis had argued decades earlier.

  “The conditions of modern life have greatly expanded the range and character of those activities which require protection from intrusive action by Government officials if men and women are to enjoy the full benefit of that privacy which the Fourth Amendment was intended to provide,” Justice Frank Murphy wrote in his dissent in Goldman. “It is our duty to see that this historic provision receives a construction sufficiently liberal and elastic to make it serve the needs and manners of each succeeding generation.”

  Nearly two decades later, in Silverman v. United States (1961), the Supreme Court again found itself faced with an eavesdropping case involving gamblers in a Washington, DC, house. In this instance, however, federal agents camped out in a house next door to the suspects and used a rather advanced listening apparatus, specifically, a spike mike. The microphone was effectively plugged into the target home’s heating system, which enabled the agents to hear everything going on next door. Again, the defendants challenged the use of the listening apparatus under the Fourth Amendment and Section 605 of the Communications Act.

  In a unanimous decision, the Supreme Court ruled that while the agents had violated the Fourth Amendment, it wasn’t because they had trespassed (even slightly) into the home without a warrant. “But decision here does not turn upon the technicality of a trespass upon a party wall as a matter of local law,” the court found. “It is based upon the reality of an actual intrusion into a constitutionally protected area.”

  This notion was rather strange, in light of Goldman.

  “Our concern should not be with the trivialities of the local law of trespass, as the opinion of the Court indicates,” wrote Justice William Douglas, in a concurring opinion in Silverman. “But neither should the command of the Fourth Amendment be limited by nice distinctions turning on the kind of electronic equipment employed. Rather, our sole concern should be with whether the privacy of the home was invaded.”

  While it seems somewhat quaint now, the late 1950s into the mid 1960s were a time when there was still a great deal of intense debate as to the ethics and legality of wiretapping and eavesdropping. Many, including the American Civil Liberties Union, argued that the practice should be banned outright. Others felt that it should be allowed in very narrow circumstances (such as situations pertaining to national security), while others felt that it should be allowed simply with a judge’s approval. One of the most ardent pro-wiretap advocates of that era was Attorney General Robert F. Kennedy. In a June 1962 op-ed in the New York Times, he argued that properly crafted legislation could strike the necessary balance between privacy interest and the needs of law enforcement.

  “Wiretapping should be prohibited except under clearly defined circumstances and conditions involving certain crimes,” Kennedy wrote. “Because wiretapping potentially involves greater interference with privacy than ordinary search and seizure, it is proper to limit it narrowly and permit it only where honestly and urgently needed.”

  By January 1967, President Lyndon Johnson even mentioned the issue in his State of the Union address:

  We should protect what Justice Brandeis called the “right most valued by civilized men”—the right to privacy. We should outlaw all wiretapping—public and private—wherever and whenever it occurs, except when the security of this Nation itself is at stake—and only then with the strictest governmental safeguards. And we should exercise the full reach of our constitutional powers to outlaw electronic “bugging” and “snooping.”

  Months before Schneider and Marks arrived to argue their case, the Supreme Court had just decided on the legality of a New York state law that authorized specific eavesdropping, or bugging, under the approval of any high-ranking police officer, district attorney, or the state attorney general, if there is “reasonable ground to believe that evidence of a crime may be thus obtained.”

  At the time, nine states prohibited wiretapping—listening to a voice communication transmitted over a wire—in all circumstances. New York was just one of seven states that specifically forbade bugging, or eavesdropping, but of those seven, six (including New York and California) allowed it under certain circumstances. The 1967 case, Berger v. New York, was a case involving bribery of the chairman of the New York State Liquor Authority. There, a miniature recording device was used to capture voices in an attorney’s office, with the approval of a judge of the state’s supreme court.

  In June 1967, the US Supreme Court decided 6–3 that the New York law was too broad, and was too close to the general warrants that were abhorred by the Framers.

  “I can see no difference between such a statute and one authorizing electronic surveillance, which, in effect, places an invisible policeman in the home,” wrote Justice William Douglas in his concurring opinion. “If anything, the latter is more offensive because the homeowner is completely unaware of the invasion of privacy.”

  * * *

  By the time the Katz case fell in the lap of a young Harvey Schneider, it was early 1967.

  Marks and Schneider occupied a small office in Beverly Hills—just the two of them and a pair of secretaries. Marks at heart was really a skilled litigator and orator. The elder lawyer wasn’t known for his creative legal writing. Marks likely thought that Schneider could persuade the Supreme Court to not only agree to hear the case, but to rule in Katz’ favor.

  Schneider spent long hours in the law library, ensconced in legal texts. He dove deep into the analysis and scholarship of Goldman and Silverman and he came to a quick conclusion about the federal prosecutors on the other side.

  “They thought they had a Goldman cas
e and not a Silverman case,” he told me. “So I couldn’t argue trespass because that was the going theory and so I argued whether a telephone booth was a constitutionally protected area.”

  Schneider learned there were other cases that had also taken place, showing that the court had found spaces that weren’t private homes to be protected under the Constitution—these included hotel rooms and taxicabs.

  “I argued that in the language the court had been using,” Schneider continued. “The court never really articulated a two-step analysis, but I think there was one. The first inquiry was whether they were dealing with a constitutionally protected area, if not, then there was no second step. So the first step was protected area, if they found one, then the next issue was trespass, that was the old analysis. They never articulated [it,] but I think if you read the cases, that’s what you glean from reading the cases.”

  This was the crux of the petition to the Supreme Court, which was formally accepted in early 1967. That summer, while the rest of the country was embroiled in the Summer of Love alongside riots over racial discrimination and police abuse broke out in several cities across America, Schneider began to formulate his arguments before the court.

  One day, Schneider realized that there was another, better way that he might be able to convince the court, and it involved arguments that (highly unusually) were not mentioned in his petition briefs to the court.