FOREWORD TO THE SULLIVAN LECTURE ESSAY: IS PRIVACY ON LIFE SUPPORT? MARK R. BROWN *

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1 FOREWORD TO THE SULLIVAN LECTURE ESSAY: IS PRIVACY ON LIFE SUPPORT? MARK R. BROWN * Liberty or licentious. 1 Autonomy versus anarchy. Privacy against security. America has struggled with these quandaries for over two hundred years. Our framers were incensed over British searches and seizures. They particularly disliked quartering troops. Thus, they left us with the Third and Fourth Amendments to the U.S. Constitution. Within the broad contours of these guarantees, the founding generation thought (apparently) that people would enjoy some kind of what Louis Brandeis described one hundred years later as a right to be let alone. 2 Shades of this right have been recognized throughout the nation s history, but it has never been an absolute. Although quartering troops and presumably FBI agents is prohibited, searches and seizures have always played a part in American history, at least under some circumstances. Even during the heyday of the mere evidence rule, which one hundred years ago prohibited searches for mere evidence of crime, 3 searches for contraband were still permitted. The only textual restriction in the Constitution is that these searches be reasonable. The devil lies in the details, of course, and the language of the Fourth Amendment provides few details. It may be that the Fourth Amendment s Warrant Clause is separate and distinct from the reasonableness requirement, or it could be (as the modern Supreme Court of the United States has assumed 4 ) that they are indelibly linked. Judicial assistance might Copyright 2016, Mark R. Brown. * Newton D. Baker/Baker and Hostetler Chair of Law, Capital University Law School. 1 Today, we often forget that the Constitution was not meant to secure liberty at all costs. The Framers were equally and probably more concerned with the survival of their new community. Their generation viewed the abuse of law as licentious (from license ). See, e.g., DAVID LOWENTHAL, NO LIBERTY FOR LICENSE: THE FORGOTTEN LOGIC OF THE FIRST AMENDMENT (1997) (explaining that the Framers rejected a freedom so broad it would destroy free society itself ); Neil K. Komesar, A Job for the Judges: The Judiciary and the Constitution in a Massive and Complex Society, 86 MICH. L. REV. 657, (1988) (discussing competing views of the Federalists and Anti-Federalists). 2 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 193 (1890). 3 See Gouled v. United States, 255 U.S. 298, 309 (1921). This rule was chipped away for a number of years and was finally laid to rest in Warden v. Hayden, 387 U.S. 294, 310 (1967). 4 See, e.g., United States v. Chadwick, 433 U.S. 1, 10 (1977) ( [W]e have held warrantless searches unreasonable, and therefore unconstitutional, in a variety of settings. ).

2 672 IS PRIVACY ON LIFE SUPPORT? [44:671 be a necessary part of reasonableness for all searches, as is often (and incorrectly) announced by critics and commentators. 5 Professor Cole s wonderful Lecture describes a modern manifestation of this age-old problem. Technological changes coupled with world events (with unknowable variables) conspire to undermine privacy. What should the modern balance be? Can the community we call government follow our every movement? May it collect our commercial and personal information at will? Is it entitled to know whom we call, text, and ? Can it constitutionally listen to our phone calls, read our texts, and catalogue our ? One hundred years ago, even assuming the technology existed, this sort of surveillance by the federal government would have been impermissible. 6 Volumes have been written on the optimal balance between the individual right and the collective good. In the end, no one has been able to truly agree on a single or simple solution. Any student who has had to lug around a Criminal Procedure textbook knows this. Perhaps the most that can be said is that we have agreed on who should supply a solution: the Supreme Court of the United States. Contrary to conventional wisdom, deference to the courts on constitutional matters is an unfortunate American development. In terms of balance and wisdom, the Court viewed historically has performed poorly. This is not the place to catalogue the Court s failures and footnote its few successes. Suffice it to say Marbury v. Madison 7 was wrongly decided; in terms of individual rights, the Court has done more harm than good. I doubt the Court s performance will improve with future privacy rights. Yes, Southern states ran roughshod over the rights of African-Americans for generations, 8 thus necessitating federal correction (some of which came from the Court). But the Court itself was implicit in the development of American apartheid in the first instance, having lent its eager encouragement to racial discrimination in Plessy v. Ferguson 9 after striking down the federal 5 Students of Criminal Procedure well know that warrants prove the exception and not the rule under the Court s current understanding. See, e.g., Warrantless Searches and Seizures, 40 GEO. L.J. ANN. REV. CRIM. PROC. 44, (2011). 6 The Fourth Amendment s incorporation into the Fourteenth Amendment was not complete until Mapp v. Ohio, 367 U.S. 643 (1961), well after the mere evidence rule s overturning. See supra note 3 and accompanying text. 7 5 U.S. 137 (1803). 8 See, e.g., Brown v. Mississippi, 297 U.S. 278, (1936) (describing officers beating an African-American suspect to elicit a confession) U.S. 537 (1896).

3 2016] IS PRIVACY ON LIFE SUPPORT? 673 Civil Rights Act of 1875 in the Civil Rights Cases. 10 Had the Court acted responsibly in the late Nineteenth Century, Jim Crow s abuses might not have flourished. Viewed holistically and historically, the Court has rarely offered individuals, let alone minorities, much protection. In addition to generally following patrician norms, the Court has preferred big business and vested property rights over all else. Corporations trump consumers, and government beats its governed. Those who cannot afford privacy will not win much from America s courts. The courts are simply not designed to be progressive within any sense of the word. The Court knows little about technology, would not charitably protect privacy at the expense of national security even if it did, and should not be called on to do so in the first place. Its proper place is on the sidelines of the privacy debate. Is Congress better? As always, history presents a mixed bag. Congress has occasionally entered the fray to protect privacy rights, but other times it has not. The same Congress that gave us the Non-Detention Act in (to prevent another Japanese Internment) authorized abusive internment with the Detainee Treatment Act of and the Military Commissions Act of Two generations prior, Congress enacted a Domestic Security exception in Title III of the Omnibus Control and Safe Streets Act of 1968 (which regulated wiretapping) to authorize the President to take such measures as he deems necessary to protect the United States. 14 Before any of this, the Nixon Administration relied on Congress s Domestic Security exception to wiretap scores of American citizens without good reason and without court orders. To its credit, the Court offered some semblance of Fourth Amendment protection 15 and in 1972 invited Congress to do something: Congress may wish to consider protective standards [for domestic terrorist surveillance] which differ from those already prescribed for specified crimes in Title III. 16 Congress eventually did, passing the Foreign Intelligence Surveillance Act (FISA) in 1978, 17 which gives us the U.S. 3 (1883) U.S.C Pub. L. No , , 119 Stat (2005). 13 7(a), 28 U.S.C. 2241(e) (2006). But see Hamdi v. Rumsfeld, 542 U.S. 507, 539 (2004) (holding that due process requires a meaningful opportunity for an enemy combatant to contest the basis for detention). 14 See United States v. United States District Court, 407 U.S. 297, 303 (1972) (quoting 18 U.S.C. 2511(3)). 15 Id. 16 Id. at U.S.C et seq.

4 674 IS PRIVACY ON LIFE SUPPORT? [44:671 Foreign Intelligence Surveillance Court, described by Professor Cole in his Lecture. In the midst of all of this, President Nixon and his plumbers went about bugging Americans. Like Nixon, the head of the FBI during Nixon s first term, J. Edgar Hoover, considered wiretaps standard practice. So much so that Hoover s bugs became a running gag. George Carlin joked about proper phone etiquette in his Filthy Words monologue: A guy who used to be in Washington, [sic] knew that his phone was tapped, [sic] used to answer, Fuck Hoover, yes, go ahead. 18 In the event, FISA did little to resolve presidential authority over the communicative privacy rights of Americans. As far as FISA is concerned, the federal government still has a free hand in the realm of foreign intelligence. 19 How far this can be extended to justify spying on American citizens remains a devilish detail, as Professor Cole makes clear. Professor Cole is certainly correct about the need for transparency. People cannot object to what they do not know. But how does one guarantee transparency? Again, America s courts have been little help. Justice Potter Stewart wrote, The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act. 20 Applying this principle, the Court has rarely forced the Executive Branch to supply information to Congress, the American people, or anyone else. Executive privilege is routinely (and successfully) invoked by presidents and their agents. Unless the president s name is Richard Nixon or he or she is accused of covering up a burglary at the Watergate, 21 chances are he or she will never have to disclose to the American people anything that transpired while in office. So how does America learn the truth? History teaches that occasional whistle-blowers have taken matters into their own hands at great personal risk. Daniel Ellsberg leaked the infamous Pentagon Papers, which exposed to Americans the official story behind the country s involvement in Vietnam. 22 Ellsberg was duly prosecuted for his service and only escaped conviction and imprisonment because of the Nixon Administration s own misdeeds. The administration had not only burglarized Ellsberg s psychiatrist s office, it had also illegally wiretapped Ellsberg s phones F.C.C. v. Pacifica Foundation, 438 U.S. 726, 751 (1978) (Appendix) U.S.C Potter Stewart, Or of the Press, 26 HAST. L. J. 631, 636 (1975). 21 See generally United States v. Nixon, 418 U.S. 683 (1974). 22 See generally N.Y. Times Co. v. United States, 403 U.S. 713 (1971). 23 See Douglas O. Linder, The Pentagon Papers (Daniel Ellsberg) Trial: An Account, UMKC FACULTY PROJECTS, /ellsbergaccount.html (last visited Jul. 31, 2016).

5 2016] IS PRIVACY ON LIFE SUPPORT? 675 Mark Felt, also known as Deep Throat, kept Bob Woodward and Carl Bernstein on the right track 24 and kept his identity secret for a very good reason. Just ask Edward Snowden. Should we give up on Congress? Of course not. To its great credit, Congress passed the Freedom of Information Act (FOIA) 25 in and added more teeth to it in Over the last forty years, FOIA has offered a tremendous tool to watchdogs who seek to keep an eye on government. But it is not enough. In terms of the big privacy picture, FOIA is not constructed to offer much more than snippets and shadows. A government bent on violating the rights of Americans, after all, will not hesitate to ignore FOIA. American privacy, as Professor Cole notably observes, is not quite dead. But, as he also notes, it may be on life support. In the end, it may be the best Americans can do to remain vigilant and keep trying. 24 See Bob Woodward, How Mark Felt Became Deep Throat, WASH. POST, Jun. 20, 2005, 06/04/gJQAlpARIV_story.html U.S.C Pub. L , 80 Stat. 383 (1966). 27 Pub. L , 1 3, 88 Stat. 1561, (1974).

The National Security Agency s Warrantless Wiretaps

The National Security Agency s Warrantless Wiretaps In 2005, the press revealed that President George W. Bush had authorized government wiretaps without a court warrant of U.S. citizens suspected of terrorist