Tag Archives: olmstead v. united states

A Thought on the Fourth of July

The first thing I read this morning: “Even Postal Service is Watching: Outside of All Mail Is Recorded.” Here are the first few paragraphs:

WASHINGTON — Leslie James Pickering noticed something odd in his mail last September: a handwritten card, apparently delivered by mistake, with instructions for postal workers to pay special attention to the letters and packages sent to his home.

“Show all mail to supv” — supervisor — “for copying prior to going out on the street,” read the card. It included Mr. Pickering’s name, address and the type of mail that needed to be monitored. The word “confidential” was highlighted in green.

“It was a bit of a shock to see it,” said Mr. Pickering, who with his wife owns a small bookstore in Buffalo. More than a decade ago, he was a spokesman for the Earth Liberation Front, a radical environmental group labeled eco-terrorists by the Federal Bureau of Investigation. Postal officials subsequently confirmed they were indeed tracking Mr. Pickering’s mail but told him nothing else.

As the world focuses on the high-tech spying of the National Security Agency, the misplaced card offers a rare glimpse inside the seemingly low-tech but prevalent snooping of the United States Postal Service.

Mr. Pickering was targeted by a longtime surveillance system called mail covers, a forerunner of a vastly more expansive effort, the Mail Isolation Control and Tracking program, in which Postal Service computers photograph the exterior of every piece of paper mail that is processed in the United States — about 160 billion pieces last year. It is not known how long the government saves the images.

Together, the two programs show that postal mail is subject to the same kind of scrutiny that the National Security Agency has given to telephone calls and e-mail.

Now, when the recent NSA disclosures were made, one loud strain of reaction I heard was that anyone who didn’t understand that the government was grabbing phone logs and doing whatever with them was foolishly naive. “You should have known that they’ve been doing this,” people said. And one could say the same about recording the outside of all the mail you and I receive. After all, the story goes on to say that one part of this surveillance program is more than a century old and that the legal position of the executive branch is that we don’t have any reasonable expectation that the outside of an envelope handled by the government on its way to or from your home will be private.

So one is left to wonder where in our lives we might have a reasonable expectation of privacy. It seems that the sphere of privacy has shrunk to the point that if one goes beyond thinking a thought–a completely internal musing, never uttered aloud–the government has established that it’s within its legitimate power to know about it. Of course, we don’t expect that limit to last forever. Not to worry, though. If you’re not thinking bad thoughts, you have no cause for concern.

And so my thoughts on the Fourth of July, and on many other days as well, turn to Justice Louis Brandeis and what he wrote in a 1927 dissent in a case involving a bootlegger who challenged the government’s warrantless wiretap. Brandeis looked beyond the bootlegger’s plight to the effects of unchecked government power on the lives of people, even–or especially–when the government insists its goal is the public good.

… The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men. To protect that right, 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. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.

… Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.

How far we have come.

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‘Men of Zeal … Without Understanding’

Some snippets from Olmstead v. United States, a 1928 Supreme Court case that considered whether unauthorized police wiretapping is a violation of the Fourth Amendment (“the right of the people to be secure …  against unreasonable searches and seizures, shall not be violated”) and the Fifth Amendment (“no person … shall be compelled in any criminal case to be a witness against himself”). It arose from a bootlegging bust in Washington state in which federal prohibition agents had, in violation of a state law, secretly tapped phone lines to get evidence.

The majority, in a pedestrian and short-sighted opinion (by Chief Justice William Howard Taft) that the current administration would love, ruled, in essence, that it was fine for the agents to tap the lines and listen in because they hadn’t physically intruded on the suspects’ property when they did it.

Associate Justice Louis Brandeis wrote the most important of several dissents. He demonstrated the absurdity of the majority’s finding on the nature of wiretapping and added lessons on privacy, the need for individual protections against government power, and government’s responsibility to act within the law. The passage most apt for today’s America: one in which he warns of the danger of government pursuing “benificent” ends — making sure we’re all secure from terrorists, say — regardless of the means: “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

A few passages from Brandeis’s Olmstead dissent:

“… The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men. To protect, that right, 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. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth. …

“… Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. …

“Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means-to declare that the government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution.”

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