Protecting Identity

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http://caselaw.lp.findlaw.com/data/c...ment04/01.html

SL: too much to reprint all
but contains
valuable Annotations at the link above.

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This is one of the key links related to our Constitution,
including annotations.

http://www.findlaw.com/casecode/constitution/

A must!

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http://www.eff.org/Privacy/




Privacy

Privacy-related Posts from DeepLinks
August 14, 2007
More on the NSA and "General Warrants"
Last week, we told you about how, nearly eighty years ago, AT&T fought at the Supreme Court to stop the government's warrantless surveillance of Americans' private communications. In its brief in Olmstead v. USA, Ma Bell argued that wiretapping could... [Read more]

August 04, 2007
Congress Passes NSA Spying Bill (Updated)
Update 7:21 PM: Congress has now passed the Administration's spying bill and landed a huge blow to all Americans' privacy. Thanks to everyone who took action to voice their opposition, and shame on the members of Congress who bowed to... [Read more]

July 30, 2007
Call Congress Now - NSA Spying Bill Headed for Vote This Week!
House Speaker Nancy Pelosi reportedly suggested that Congress may take action this week on a bill that could rubberstamp the NSA's spying program. The Bush Administration is trying to sell its latest proposal as a serious compromise, but don't be... [Read more]

July 20, 2007
Harry Potter and the Digital Fingerprints
A few days before Friday's release of Harry Potter and the Deathly Hallows, someone leaked a (genuine) copy of the book widely using file-sharing networks and photo-sharing web sites -- photographing every single page with a digital camera. The quality... [Read more]



All Privacy posts from DeepLinks »
New technologies are radically advancing our freedoms, but they are also enabling unparalleled invasions of privacy.

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Your cell phone helps you keep in touch with friends and families, but it also makes it easier for the feds to track your location.

Your Web searches about sensitive medical information might seem secret, known only to you and search engines like Google. But by logging your online activities, these companies are creating a honeypot of personal information, potentially available to any party wielding a subpoena.

And the next time you try to board a plane, watch out—you might be turned away after being mistakenly placed on a government watch list based on erroneous data.

Technology isn't the real problem, though; rather, the law has yet to catch up to our evolving expectations of and need for privacy. In fact, new government initiatives and laws have severely undermined our rights in recent years.

Privacy rights are enshrined in our Constitution for a reason — a thriving democracy requires respect for individuals' autonomy as well as anonymous speech and association. These rights must be balanced against legitimate concerns like law enforcement, but checks must be put in place to prevent abuse of government powers.

EFF fights in the courts and Congress to extend your privacy rights into the digital world, and supports the development of privacy-protecting technologies. Donate to EFF to help support our efforts.


Government search and surveillance powers
Rather than limit how increasingly intrusive surveillance technologies can be deployed, the government has consistently extended its power to spy on you and to force others to turn over personal information. When Congress enacted the USA PATRIOT Act, it dramatically expanded search and surveillance powers and eliminated checks and balances that previously gave courts the opportunity to ensure that those powers were not abused. EFF has fought for PATRIOT reform and has helped the ACLU and an unnamed ISP challenge the constitutionality of National Security Letters, a key power under PATRIOT.

USA PATRIOT Act
CALEA
USA v. PenRegister (Cell phone tracking)
More Surveillance Resources
The Real ID Act
EFF filed a class-action lawsuit against AT&T on January 31, 2006, accusing the telecom giant of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in its massive and illegal program to wiretap and data-mine Americans' communications. The lawsuit alleges that AT&T not only helped the NSA listen in on millions of ordinary Americans' Internet and telephone communications, but also provided access to its databases containing records of most or all communications.

Class-Action Lawsuit Against AT&T
NSA Spying Program Information
Data Mining and Dataveillance
The government isn't content to exploit personal data only when someone's suspected of a crime. Instead, it wants to analyze the details of innocent Americans' lives, looking for potential threats. What if the government's notoriously unreliable databases have inaccurate information about you? Setting the record straight will be as easy as changing your credit rating — that is, nearly impossible. And once it's collected, there may be little stopping use of the data for purposes unrelated to finding criminals.

The proposed Total Information Awareness (TIA) was one of the first widely-publicized, large scale data mining programs, but the government's initiatives have since taken many other dangerous forms. For instance, though the Transportation Security Authority (TSA) promised not to do so, it collected millions of personal records to test its Secure Flight passenger screening program. TSA has since grounded the program, at least for now.

Comments to the Department of Homeland Security about its travel-related data mining program called the Automated Targeting System [PDF]
Secure Flight
Travel Screening
TIA
Class-Action Lawsuit Against AT&T

Data collection and retention
Search engines, email providers, and other Internet companies maintain increasingly vast databases that reach into the most intimate details of your life – who you communicate with, what you read, what you buy. Unfortunately, information stored with a third-party is given much weaker legal protection than that on your own computer. By tapping into these databases, the government can effectively use private companies to do its dirty work. Any litigant might also gain access using a subpoena. These common practices demand more substantive legal and technical limits.

Privacy and Search Engines
White Paper: Best Practices for OSPs
Article: Subpoenas and Your Privacy
EFF Comments on San Francisco Municipal Wi-Fi [PDF]
Anonymity Online
Since the times of the Federalist Papers, anonymity has supported critical social and political discourse. Though your email address or screenname might seem to hide your identity, individuals can too easily abuse the legal system to violate your rights. Say you want to blow the whistle on some corporate malfeasance, so you post an anonymous message online. Without your knowledge, the company's CEO can unmask your identity through a frivolous lawsuit and a subpoena to your online service provider. EFF has protected many "John Does" against these types of suits. EFF also supports the development of privacy-protecting technologies.

Anonymity
CyberSLAPP
Tor

Privacy-intrusive technologies
Before embracing new technologies, we must consider their privacy implications carefully. For instance, libraries, schools, the government, and private sector businesses are adopting radio frequency identification tags, or RFIDs — a technology that can be used to pinpoint the physical location of whatever item the tags are embedded in. While RFIDs are a convenient way to track inventory in a warehouse, they are also a convenient way to do something far less benign: track people and their activities through their belongings. EFF is working to ensure that use of this technology doesn't come at the expense of privacy and freedom.

RFID
Biometrics
The Real ID Act

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http://www.law.cornell.edu/anncon/ht...rag4_user.html

CRS Annotated Constitution

FOURTH AMENDMENT
SEARCH AND SEIZURE


Electronic Surveillance and the Fourth Amendment

The Olmstead Case.—With the invention of the microphone, the telephone, and the dictograph recorder, it became possible to “eavesdrop” with much greater secrecy and expediency. Inevitably, the use of electronic devices in law enforcement was challenged, and in 1928 the Court reviewed convictions obtained on the basis of evidence gained through taps on telephone wires in violation of state law. On a five–to– four vote, the Court held that wiretapping was not within the confines of the Fourth Amendment.131 Chief Justice Taft, writing the opinion of the Court, relied on two lines of argument for the conclusion. First, inasmuch as the Amendment was designed to protect one’s property interest in his premises, there was no search so long as there was no physical trespass on premises owned or controlled by a defendant. Second, all the evidence obtained had been secured by hearing, and the interception of a conversation could not qualify as a seizure, for the Amendment referred only to the seizure of tangible items. Furthermore, the violation of state law did not render the evidence excludible, since the exclusionary rule operated only on evidence seized in violation of the Constitution.132

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Federal Communications Act.—Six years after the decision in the Olmstead case, Congress enacted the Federal Communications Act and included in Sec. 605 of the Act a broadly worded proscription on which the Court seized to place some limitation upon governmental wiretapping.133 Thus, in Nardone v. United States,134 the Court held that wiretapping by federal officers could violate Sec. 605 if the officers both intercepted and divulged the contents of the conversation they overheard, and that testimony in court would constitute a form of prohibited divulgence. Such evidence was therefore excluded, although wiretapping was not illegal under the Court’s interpretation if the information was not used outside the governmental agency. Because Sec. 605 applied to intrastate as well as interstate transmissions,135 there was no question about the applicability of the ban to state police officers, but the Court declined to apply either the statute or the due process clause to require the exclusion of such evidence from state criminal trials.136 State efforts to legalize wiretapping pursuant to court orders were held by the Court to be precluded by the fact that Congress in Sec. 605 had intended to occupy the field completely to the exclusion of the States.137

Nontelephonic Electronic Surveillance.—The trespass rationale of Olmstead was utilized in cases dealing with “bugging” of premises rather than with tapping of telephones. Thus, in Goldman v. United States,138 the Court found no Fourth Amendment violation when a listening device was placed against a party wall so[p.1252]that conversations were overheard on the other side. But when officers drove a “spike mike” into a party wall until it came into contact with a heating duct and thus broadcast defendant’s conversations, the Court determined that the trespass brought the case within the Amendment.139 In so holding, the Court, without alluding to the matter, overruled in effect the second rationale of Olmstead, the premise that conversations could not be seized.

The Berger and Katz Cases.—In Berger v. New York,140 the Court confirmed the obsolesence of the alternative holding in Olmstead that conversations could not be seized in the Fourth Amendment sense.141 Berger held unconstitutional on its face a state eavesdropping statute under which judges were authorized to issue warrants permitting police officers to trespass on private premises to install listening devices. The warrants were to be issued upon a showing of “reasonable ground to believe that evidence of crime may be thus obtained, and particularly describing the person or persons whose communications, conversations or discussions are to be overheard or recorded.” For the five–Justice majority, Justice Clark discerned several constitutional defects in the law. “First, . . . eavesdropping is authorized without requiring belief that any particular offense has been or is being committed; nor that the ‘property’ sought, the conversations, be particularly described.

“The purpose of the probable–cause requirement of the Fourth Amendment to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been or is being committed is thereby wholly aborted. Likewise the statute’s failure to describe with particularity the conversations sought gives the officer a roving commission to ‘seize’ any and all conversations. It is true that the statute requires the naming of ‘the person or persons whose communications, conversations or discussions are to be overheard or recorded. . . .’ But this does no more than identify the person whose constitutionally protected area is to be invaded rather than ‘particularly describing’ the communications, conversations, or discussions to be seized. . . . Secondly, authorization of eavesdropping for a two–month period is the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause. Prompt execution is also avoided. During such a long and continuous (24 hours a day) period the con[p.1253]versations of any and all persons coming into the area covered by the device will be seized indiscriminately and without regard to their connection with the crime under investigation. Moreover, the statute permits. . . extensions of the original two–month period—presumably for two months each—on a mere showing that such extension is ‘in the public interest.’. . . Third, the statute places no termination date on the eavesdrop once the conversation sought is seized. . . . Finally, the statute’s procedure, necessarily because its success depends on secrecy, has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts. On the contrary, it permits unconsented entry without any showing of exigent circumstances. Such a showing of exigency, in order to avoid notice, would appear more important in eavesdropping, with its inherent dangers, than that required when conventional procedures of search and seizure are utilized. Nor does the statute provide for a return on the warrant thereby leaving full discretion in the officer as to the use of seized conversations of innocent as well as guilty parties. In short, the statute’s blanket grant of permission to eavesdrop is without adequate judicial supervision or protective procedures.”142

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Both Justices Black and White in dissent accused the Berger majority of so construing the Fourth Amendment that no wiretapping– eavesdropping statute could pass constitutional scrutiny,143 and in Katz v. United States,144 the Court in an opinion by one of the Berger dissenters, Justice Stewart, modified some of its language and pointed to Court approval of some types of statutorily–authorized electronic surveillance. Just as Berger had confirmed that one rationale of the Olmstead decision, the inapplicability of “seizure” to conversations, was no longer valid, Katz disposed of the other rationale. In the latter case, officers had affixed a listening device to the outside wall of a telephone booth regularly used by Katz and activated it each time he entered; since there had been no physical trespass into the booth, the lower courts held the Fourth Amendment not relevant. The Court disagreed, saying that “once it is recognized that the Fourth Amendment protects peo[p.1254]ple—and not simply ‘areas’—against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.”145 Because the surveillance of Katz’s telephone calls had not been authorized by a magistrate, it was invalid; however, the Court thought that “it is clear that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the Government asserts in fact took place.”146 The notice requirement, which had loomed in Berger as an obstacle to successful electronic surveillance, was summarily disposed of.147 Finally, Justice Stewart observed that it was unlikely that electronic surveillance would ever come under any of the established exceptions so that it could be conducted without prior judicial approval.148

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Following Katz, Congress enacted in 1968 a comprehensive statute authorizing federal officers and permitting state officers pursuant to state legislation complying with the federal law to seek warrants for electronic surveillance to investigate violations of prescribed classes of criminal legislation.149 The Court has not yet had occasion to pass on the federal statute and to determine whether its procedures and authorizations comport with the standards sketched in Osborn, Berger, and Katz or whether those standards are somewhat more flexible than they appear to be on the faces of the opinions.150

Warrantless “National Security” Electronic Surveillance.—In Katz v. United States,151 Justice White sought to preserve for a future case the possibility that in “national security cases” electronic surveillance upon the authorization of the President or the Attorney General could be permissible without prior judicial approval. The Executive Branch then asserted the power to wiretap and to “bug” in two types of national security situations, against domestic subversion and against foreign intelligence operations, first basing its authority on a theory of “inherent” presidential power and then in the Supreme Court withdrawing to the argument that such surveillance was a “reasonable” search and seizure and therefore valid under the Fourth Amendment. Unanimously, the Court held that at least in cases of domestic subversive investigations, compliance with the warrant provisions of the Fourth Amendment was required.152 Whether or not a search was[p.1256]reasonable, wrote Justice Powell for the Court, was a question which derived much of its answer from the warrant clause; except in a few narrowly circumscribed classes of situations, only those searches conducted pursuant to warrants were reasonable. The Government’s duty to preserve the national security did not override the gurarantee that before government could invade the privacy of its citizens it must present to a neutral magistrate evidence sufficient to support issuance of a warrant authorizing that invasion of privacy.153 This protection was even more needed in “national security cases” than in cases of “ordinary” crime, the Justice continued, inasmuch as the tendency of government so often is to regard opponents of its policies as a threat and hence to tread in areas protected by the First Amendment as well as by the Fourth.154 Rejected also was the argument that courts could not appreciate the intricacies of investigations in the area of national security nor preserve the secrecy which is required.155

The question of the scope of the President’s constitutional powers, if any, remains judicially unsettled.156 Congress has acted, however, providing for a special court to hear requests for warrants for electronic surveillance in foreign intelligence situations, and permitting the President to authorize warrantless surveillance to[p.1257]acquire foreign intelligence information provided that the communications to be monitored are exclusively between or among foreign powers and there is no substantial likelihood any “United States person” will be overheard.157

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Footnotes

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131 Olmstead v. United States, 277 U.S. 438 (1928) .
132 Among the dissenters were Justice Holmes, who characterized “illegal” wiretapping as “dirty business,” id. at 470, and Justice Brandeis, who contributed to his opinion the famous peroration about government as “the potent, the omnipresent, teacher” which “breeds contempt for law” among the people by its example. Id. at 485. More relevant here was his lengthy argument rejecting the premises of the majority, an argument which later became the law of the land. (1) “To protect [the right to be left alone], every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.” Id. at 478. (2) “There is, in essence, no difference between the sealed letter and the private telephone message. . . . The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. 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 . . . may be overheard.” Id. at 475–76.
133 Ch.652, 48 Stat. 1103 (1934), providing, inter alia, that ”. . . no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, purport, effect, or meaning of such intercepted communication to any person.” Nothing in the legislative history indicated what Congress had in mind in including this language. The section, which appeared at 47 U.S.C. Sec. 605 , was rewritten by Title III of the Omnibus Crime Act of 1968, 82 Stat. 22 , Sec. 803, so that the “regulation of the interception of wire or oral communications in the future is to be governed by” the provisions of Title III. S. Rep. No. 1097, 90th Cong., 2d Sess. 107–08 (1968).
134 302 U.S. 379 (1937) . Derivative evidence, that is, evidence discovered as a result of information obtained through a wiretap, was similarly inadmissible, Nardone v. United States, 308 U.S. 338 (1939) , although the testimony of witnesses might be obtained through the exploitation of wiretap information. Goldstein v. United States, 316 U.S. 114 (1942) . Eavesdropping on a conversation on an extension telephone with the consent of one of the parties did not violate the statute. Rathbun v. United States, 355 U.S. 107 (1957) .
135 Weiss v. United States, 308 U.S. 321 (1939) .
136 Schwartz v. Texas, 344 U.S. 199 (1952) . At this time, evidence obtained in violation of the Fourth Amendment could be admitted in state courts. Wolf v. Colorado, 338 U.S. 25 (1949) . Although Wolf was overruled by Mapp v. Ohio, 367 U.S. 643 (1961) , it was some seven years later and after wiretapping itself had been made subject to the Fourth Amendment that Schwartz was overruled in Lee v. Florida, 392 U.S. 378 (1968) .
137 Bananti v. United States, 355 U.S. 96 (1957) .
138 316 U.S. 129 (1942) .
139 Silverman v. United States, 365 U.S. 505 (1961) . See also Clinton v. Virginia, 377 U.S. 158 (1964) (physical trespass found with regard to amplifying device stuck in a partition wall with a thumb tack).
140 388 U.S. 41 (1967) .
141 Id. at 50–53.
142 Id. at 58–60. Justice Stewart concurred because he thought that the affidavits in this case had not been sufficient to show probable cause, but he thought the statute constitutional in compliance with the Fourth Amendment. Id. at 68. Justice Black dissented, arguing that the Fourth Amendment was not applicable to electronic eavesdropping but that in any event the “search” authorized by the statute was reasonable. Id. at 70. Justice Harlan dissented, arguing that the statute with its judicial gloss was in compliance with the Fourth Amendment. Id. 89. Justice White thought both the statute and its application in this case were constitutional. Id. at 107.
143 Id. at 71, 113.
144 389 U.S. 347 (1967) .
145 Id. at 353. “We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the ‘trespass’ doctrine there enunciated can no longer be regarded as controlling. The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.” Id.
146 Id. at 354. The “narrowly circumscribed” nature of the surveillance was made clear by the Court in the immediately preceding passage. “[The Government agents] did not begin their electronic surveillance until investigation of the petitioner’s activities had established a strong probability that he was using the telephone in question to transmit gambling information to persons in other States, in violation of federal law. Moreover, the surveillance was limited, both in scope and in duration, to the specific purpose of establishing the contents of the petitioner’s unlawful telephonic communications. The agents confined their surveillance to the brief periods during which he used the telephone booth, and they took great care to overhear only the conversations of the petitioner himself.” Id. For similar emphasis upon precision and narrow circumscription, see Osborn v. United States, 385 U.S. 323, 329–30 (1966) .
147 “A conventional warrant ordinarily serves to notify the suspect of an intended search . . . . In omitting any requirement of advance notice, the federal court . . . simply recognized, as has this Court, that officers need not announce their purpose before conducting an otherwise authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence.” 389U.S. at 355 389U.S. at 355 n.16.
148 Id. at 357–58. Justice Black dissented, feeling that the Fourth Amendment applied only to searches for and seizures of tangible things and not conversations. Id. at 364. Two “beeper” decisions support the general applicability of the warrant requirement if electronic surveillance will impair legitimate privacy interests. Compare United States v. Knotts, 460 U.S. 276 (1983) (no Fourth Amendment violation in relying on a beeper, installed without warrant, to aid in monitoring progress of a car on the public roads, since there is no legitimate expectation of privacy in destination of travel on the public roads), with United States v. Karo, 468 U.S. 705 (1984) (beeper installed without a warrant may not be used to obtain information as to the continuing presence of an item within a private residence).

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149 Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211 , 18 U.S.C. §§ 2510 –20.
150 The Court has interpreted the statute several times without reaching the constitutional questions. United States v. Kahn, 415 U.S. 143 (1974) ; United States v. Giordano, 416 U.S. 505 (1974) ; United States v. Chavez, 416 U.S. 562 (1974) ; United States v. Donovan, 429 U.S. 413 (1977) ; Scott v. United States, 436 U.S. 128 (1978) ; Dalia v. United States, 441 U.S. 238 (1979) ; United States v. New York Telephone Co., 434 U.S. 159 (1977) ; United States v. Caceres, 440 U.S. 741 (1979) . Dalia supra, did pass on one constitutional issue, whether the Fourth Amendment mandated specific warrant authorization for a surreptitious entry to install an authorized “bug.” See also Smith v. Maryland, 442 U.S. 735 (1979) (no reasonable expectation of privacy in numbers dialed on one’s telephone, so Fourth Amendment does not require a warrant to install “pen register” to record those numbers).
151 389 U.S. 347, 363–64 (1967) (concurring opinion). Justices Douglas and Brennan rejected the suggestion. Id. at 359–60 (concurring opinion). When it enacted its 1968 electronic surveillance statute, Congress alluded to the problem in ambiguous fashion, 18 U.S.C. Sec. 2511 (3), which the Court subsequently interpreted as having expressed no congressional position at all. United States v. United States District Court, 407 U.S. 297, 302–08 (1972) .
152 United States v. United States District Court, 407 U.S. 297 (1972) . Chief Justice Burger concurred in the result and Justice White concurred on the ground that the 1968 law required a warrant in this case, and therefore did not reach the constitutional issue. Id. at 340. Justice Rehnquist did not participate. Justice Powell carefully noted that the case required “no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.” Id. at 308.
153 The case contains a clear suggestion that the Court would approve a congressional provision for a different standard of probable cause in national security cases. “We recognize that domestic security surveillance may involve different policy and practical considerations from the surveillance of ‘ordinary crime.’ The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. The exact targets of such surveillance may be more difficult to identify than in surveillance operations against many types of crimes specified in Title III. Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government’s preparedness for some future crisis or emergency. . . . Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection. . . . It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of Sec. 2518 but should allege other circumstances more appropriate to domestic security cases. . . .” Id. at 322–23.
154 Id. at 313–24.
155 Id. at 320.
156 See United States v. Butenko, 494 F.2d 593 (3d Cir.), cert. denied, 419 U.S. 881 (1974) ; Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), cert. denied, 425 U.S. 944 (1976) , appeal after remand 565 F.2d 742 (D.C. Cir. 1977), on remand, 444 F. Supp. 1296 (D.D.C. 1978), aff’d. in part, rev’d. in part, 606 F.2d 1172 (D.C. Cir. 1979), cert. denied, 453 U.S. 912 (1981) ; Smith v. Nixon, 606 F.2d 1183 (D.C. Cir. 1979), cert. denied, 453 U.S. 912 (1981) ; United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), after remand, 667 F.2d 1105 (4th Cir. 1981); Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982).
157 Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95–511, 92 Stat. 1797 , 50 U.S.C. §§ 1801 –1811. See United States v. Belfield, 692 F.2d 141 (D.C. Cir. 1982) (upholding constitutionality of disclosure restrictions in Act).

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Enforcing the Fourth Amendment: The Exclusionary Rule

A right to be free from unreasonable searches and seizures is declared by the Fourth Amendment, but how one is to translate the guarantee into concrete terms is not specified. Several possible methods of enforcement have been suggested over time; however, the Supreme Court has settled, not without dissent, on only one as an effective means to make real the right.

Alternatives to the Exclusionary Rule.—Theoretically, there are several alternatives to the exclusionary rule. An illegal search and seizure may be criminally actionable and officers undertaking one thus subject to prosecution, but the examples when officers are criminally prosecuted for overzealous law enforcement are extremely rare.158 A policeman who makes an illegal search and seizure is subject to internal departmental discipline which may be backed up in the few jurisdictions which have adopted them by the oversight of and participation of police review boards, but again the examples of disciplinary actions are exceedingly rare.159 Persons who have been illegally arrested or who have had their privacy invaded will usually have a tort action available under state statutory or common law.

Moreover, police officers acting under color of state law who violate a person’s Fourth Amendment rights are subject to a suit for damages and other remedies160 under a civil rights statute in federal courts.161 While federal officers and others acting under color of federal law are not subject jurisdictionally to this statute,[p.1258]the Supreme Court has recently held that a right to damages for violation of Fourth Amendment rights arises by implication out of the guarantees secured and that this right is enforceable in federal courts.162 While a damage remedy might be made more effectual,163 a number of legal and practical problems stand in the way.164 Police officers have available to them the usual common–law defenses, most important of which is the claim of good faith.165 Federal officers are entitled to qualified immunity based on an objectively reasonable belief that a warrantless search later determined to violate the Fourth Amendment was supported by probable cause or exigent circumstances.166 And on the practical side, persons subjected to illegal arrests and searches and seizures are often disreputable persons toward whom juries are unsympathetic, or they are indigent and unable to bring suit. The result, therefore, is that the Court has emphasized exclusion of unconstitutionally seized evidence in subsequent criminal trials as the only effective enforcement method.

Development of the Exclusionary Rule.—Exclusion of evidence as a remedy for Fourth Amendment violations found its beginning in Boyd v. United States,167 which, as was noted above, involved not a search and seizure but a compulsory production of business papers which the Court likened to a search and seizure. Further, the Court analogized the Fifth Amendment’s self–incrimination provision to the Fourth Amendment’s protections to derive a rule which required exclusion of the compelled evidence because the defendant had been compelled to incriminate himself by producing it.168 The Boyd case was closely limited to its facts and an[p.1259]exclusionary rule based on Fourth Amendment violations was rejected by the Court a few years later, with the Justices adhering to the common– law rule that evidence was admissible however acquired.169

Nevertheless, ten years later the common–law view was itself rejected and an exclusionary rule propounded in Weeks v. United States.170 Weeks had been convicted on the basis of evidence seized from his home in the course of two warrantless searches; some of the evidence consisted of private papers like those sought to be compelled in the Boyd case. Unanimously, the Court held that the evidence should have been excluded by the trial court. The Fourth Amendment, Justice Day said, placed on the courts as well as on law enforcement officers restraints on the exercise of power compatible with its guarantees. “The tendency of those who execute the criminal laws of the country to obtain convictions by means of unlawful searches and enforced confessions . . . should find no sanction in the judgment of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.”171 The ruling is ambiguously based but seems to have had as its foundation an assumption that admission of illegally–seized evidence would itself violate the Amendment. “If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secured against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitu[p.1260]tion. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.”172

Because the Fourth Amendment did not restrict the actions of state officers,173 there was no question about the application of an exclusionary rule in state courts174 as a mandate of federal consitutional policy.175 But in Wolf v. Colorado,176 a unanimous Court held that freedom from unreasonable searches and seizures was such a fundamental right as to be protected against state violations by the due process clause of the Fourteenth Amendment.177 However, the Court held that the right thus guaranteed did not require that the exclusionary rule be applied in the state courts, since there were other means to observe and enforce the right. “Granting that in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured[p.1261]by the Due Process Clause a State’s reliance upon other methods which, if consistently enforced, would be equally effective.”178

It developed, however, that the Court had not vested in the States total discretion in regard to the admissibility of evidence, as the Court proceeded to evaluate under the due process clause the methods by which the evidence had been obtained. Thus, in Rochin v. California,179 evidence of narcotics possession had been obtained by forcible administration of an emetic to defendant at a hospital after officers had been unsuccessful in preventing him from swallowing certain capsules. The evidence, said Justice Frankfurter for the Court, should have been excluded because the police methods were too objectionable. “This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents . . . is bound to offend even hardened sensibilities. They are methods too close to the rack and screw.”180 The Rochin standard was limited in Irvine v. California,181 in which defendant was convicted of bookmaking activities on the basis of evidence secured by police who repeatedly broke into his house and concealed electronic gear to broadcast every conversation in the house. Justice Jackson’s plurality opinion asserted that Rochin had been occasioned by the element of brutality, and that while the police conduct in Irvine was blatantly illegal the admissibility of the evidence was governed by Wolf, which should be consistently applied for purposes of guidance to state courts. The Justice also entertained considerable doubts about the efficacy of the exclusionary rule.182 Rochin emerged as the standard, however, in a later case in which the Court sustained the admissibility of the results of a blood test administered while defendant was unconscious in a hospital following a traffic accident, the Court observing the routine nature of the test and the minimal intrusion into bodily privacy.183

[p.1262]
Then, in Mapp v. Ohio,184 the Court held that the exclusionary rule should and did apply to the States. It was “logically and constitutionally necessary,” wrote Justice Clark for the majority, “that the exclusion doctrine—an essential part of the right to privacy—be also insisted upon as an essential ingredient of the right” to be secure from unreasonable searches and seizures. “To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment.”185 Further, the Court then held that since illegally– seized evidence was to be excluded from both federal and state courts, the standards by which the question of legality was to be determined should be the same, regardless of whether the court in which the evidence was offered was state or federal.186

[Sharing Lights]

The Foundations of the Exclusionary Rule.—Important to determination of such questions as the application of the exclusionary rule to the States and the ability of Congress to abolish or to limit it is the fixing of the constitutional source and the basis of the rule. For some time, it was not clear whether the exclusionary rule was derived from the Fourth Amendment, from some union of the Fourth and Fifth Amendments, or from the Court’s supervisory power over the lower federal courts. It will be recalled that in Boyd187 the Court fused the search and seizure clause with the provision of the Fifth Amendment protecting against compelled self–incrimination. Weeks v. United States,188 though the Fifth Amendment was mentioned, seemed to be clearly based on the Fourth Amendment. Nevertheless, in opinions following Weeks the Court clearly identified the basis for the exclusionary rule as the self–incrimination clause of the Fifth Amendment.189 Then in[p.1263]Mapp v. Ohio,190 the Court tied the rule strictly to the Fourth Amendment, finding exclusion of evidence seized in violation of the Amendment to be the “most important constitutional privilege” of the right to be free from unreasonable searches and seizures, finding that the rule was “an essential part of the right of privacy” protected by the Amendment.

“This Court has ever since [Weeks was decided in 1914] required of federal law officers a strict adherence to that command which this Court has held to be a clear, specific, and constitutionally required— even if judicially implied—deterrent safeguard without insistence upon which the Fourth Amendment would have been reduced to a ‘form of words.”’191 It was a necessary step in the application of the rule to the States to find that the rule was of constitutional origin rather than a result of an exercise of the Court’s supervisory power over the lower federal courts, inasmuch as the latter could not constitutionally be extended to the state courts.192 In fact, Justice Frankfurter seemed to find the exclusionary rule to be based on the Court’s supervisory powers in Wolf v. Colorado193 in declining to extend the rule to the States. That the[p.1264]rule is of constitutional origin Mapp establishes, but this does not necessarily establish that it is immune to statutory revision.

Suggestions appear in a number of cases, including Weeks, to the effect that admission of illegally–seized evidence is itself unconstitutional.194 These were often combined with a rationale emphasizing “judicial integrity” as a reason to reject the proffer of such evidence.195 Yet the Court permitted such evidence to be introduced into trial courts, when the defendant lacked “standing” to object to the search and seizure which produced the evidence196 or when the search took place before the announcement of the decision extending the exclusionary rule to the States.197 At these times, the Court turned to the “basic postulate of the exclusionary rule itself. The rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.”198 “Mapp had as its prime purpose the enforcement of the Fourth Amendment through the inclusion of the exclusionary rule within its rights. This, it was found, was the only effective deterrent to lawless police action. Indeed, all of the cases since Wolf requiring the exclusion of illegal evidence have been based on the necessity for an effective deterrent to illegal police action.”199

Narrowing Application of the Exclusionary Rule.—For as long as we have had the exclusionary rule, critics have attacked it, challenged its premises, disputed its morality.200 By the early[p.1265]1980s a majority of Justices had stated a desire either to abolish the rule or to sharply curtail its operation,201 and numerous opinions had rejected all doctrinal bases save that of deterrence.202 At the same time, these opinions voiced strong doubts about the efficacy of the rule as a deterrent, and advanced public interest values in effective law enforcement and public safety as reasons to discard the rule altogether or curtail its application.203 Thus, the Court emphasized the high costs of enforcing the rule to exclude reliable and trustworthy evidence, even when violations have been technical or in good faith, and suggested that such use of the rule may well “generat[e] disrespect for the law and administration of justice,”204 as well as free guilty defendants.205 No longer does the Court declare that “[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.”206

Although the exclusionary rule has not been completely repudiated, its utilization has been substantially curbed. Initial decisions chipped away at the rule’s application. Defendants who themselves[p.1266]were not subjected to illegal searches and seizures may not object to the introduction against themselves of evidence illegally obtained from co–conspirators or codefendants,207 and even a defendant whose rights have been infringed may find the evidence coming in, not as proof of guilt, but to impeach his testimony.208 Defendants who have been convicted after trials in which they were given a full and fair opportunity to raise claims of Fourth Amendment violations may not subsequently raise those claims on federal habeas corpus because of the costs overweighing the minimal deterrent effect.209 Evidence obtained through a wrongful search and seizure may sometimes be used in the criminal trial, if the prosecution can show a sufficient attenuation of the link between police misconduct and obtaining of the evidence.210 If an arrest or a search which was valid at the time it was effectuated becomes bad through the subsequent invalidation of the statute under which the arrest or search was made, evidence obtained thereby is nonetheless admissible.211 A grand jury witness was not permitted to[p.1267]refuse to answer questions on the ground that they were based on evidence obtained from an unlawful search and seizure,212 and federal tax authorities were permitted to use in a civil proceeding evidence found to have been unconstitutionally seized from defendant by state authorities.213


Supplement: [P. 1267, add to text following n.213:]

The rule is inapplicable in parole revocation hearings.25

The most severe curtailment of the rule came in 1984 with adoption of a “good faith” exception. In United States v. Leon,214 the Court created an exception for evidence obtained as a result of officers’ objective, good–faith reliance on a warrant, later found to be defective, issued by a detached and neutral magistrate. Justice White’s opinion for the Court215 could find little benefit in applying the exclusionary rule where there has been good–faith reliance on an invalid warrant. Thus, there was nothing to offset the “substantial social costs exacted by the [rule].”216 “The exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates,” and in any event the Court considered it unlikely that the rule could have much deterrent effect on the actions of truly neutral magistrates.217 Moreover, the Court thought that the rule should not be applied “to deter objectively reasonable law enforcement activity,” and that “[p]enalizing the officer for the magistrate’s error . . . cannot logically contribute to the deterrence of Fourth Amendment violations.”218 The Court also suggested some circumstances in which courts would be unable to find that officers’ reliance on a warrant was objectively reasonable: if the officers have been “dishonest or reckless in preparing their affidavit,” if it should have been obvious that the magistrate had “wholly abandoned” his neutral role, or if the warrant was obviously deficient on its face (e.g., lacking in particularity). The Court[p.1268]applied the Leon standard in Massachusetts v. Sheppard,219 holding that an officer possessed an objectively reasonable belief that he had a valid warrant after he had pointed out to the magistrate that he had not used the standard form, and the magistrate had indicated that the necessary changes had been incorporated in the issued warrant.

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