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The third-party doctrine dates from a case, Smith v. The government can obtain that information with minimal judicial oversight. Meanwhile, of course, Alexa is listening. The good that is said to sit at the nexus of these developments in technology, commerce, and the law is privacy. These are things we seem to want. But do we have a right to them? The broadcasts were mostly music, with some commercials and announcements, and were not loud enough to prevent riders from talking to one another. On the other hand, riders could not not hear them. Complaints were received, and a survey was duly commissioned.
The survey found that ninety-two per cent of bus and trolley riders did not have a problem with the broadcasts. So they continued. Two customers, however, chose to take a stand. They were Franklin Pollak and Guy Martin, and they happened to be lawyers. These gentlemen sued the city. Being compelled to listen to a radio program not of their choosing on a public bus, they maintained, represented an unlawful deprivation of liberty under the Constitution. The case made it all the way to the United States Supreme Court.
The Court handed down its decision in A bus, it said, is not like a home. It is a public space, and in a public space the public interest prevails. As long as the city government has the comfort, safety, and convenience of its riders at heart, it can run its transportation system any way it wants. Pollak and Martin had no more right to demand quiet on the bus than they had to tell the driver where to stop.
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The vote was 7—1. One Justice, Felix Frankfurter, recused himself.
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This posture is pretty much Felix Frankfurter in a nutshell. Douglas was a judicial renegade, with little concern for precedent. To Douglas, more was at stake than annoying background music. Forcing people to listen to the radio, he said, is a step on the road to totalitarianism. If you can tell people what to listen to, you can tell people what to think. Warren and Brandeis took it from an treatise on tort law. Every new technological, legal, and cultural development seems to have prompted someone to worry about the imminent death of privacy.
In the nineteenth century, people were shocked by the introduction of postcards, which invited strangers to read your mail. Mail was supposed to be private. Privacy is associated with liberty, but it is also associated with privilege private roads and private sales , with confidentiality private conversations , with nonconformity and dissent, with shame and embarrassment, with the deviant and the taboo Igo does not go there , and with subterfuge and concealment.
Douglas got a second crack at applying his theory of privacy as a constitutional right in , in the case of Griswold v.
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At issue was a Connecticut law that made the use of contraception a crime. The answer, Douglas said, is something that predates the Constitution: the institution of marriage. It is beyond politics and even beyond law. Douglas, incidentally, was married four times. Eight years later, Griswold was a key precedent in another case about reproductive rights, Roe v.
Igo notes that often privacy is simply a weapon that comes to hand in social combat.
People invoke their right to privacy when it serves their interests. A requirement that every citizen carry an I.
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But many of the same people were indignant about the publication of the Starr Report, on the Oval Office sexcapades of Bill Clinton. Sex is supposed to be private. Once, it was thought that gay people were better off keeping their sexuality secret. Then it was decided that they were better off making their sexuality public, and, almost overnight, privacy became a sign of hypocrisy.
But reality shows and confessional memoirs did not mark the death of privacy. On the contrary, they confirmed how valuable a commodity privacy is. Privacy is especially valuable to criminals. The same Fourth Amendment rights that prohibit the government from entering your home and listening to your conversations without a warrant also protect people engaged in illegal activities.
Figuring out when law enforcement is crossing the line in getting the goods on criminal suspects has been an unending job for the courts. The job is unending because technology is always changing. And it is true that privacy, like many civil rights, can serve as a protection for property owners and the status quo generally. Roy Olmstead was a big-time Seattle bootlegger who was convicted of conspiracy to violate the Prohibition Act, in part on the basis of evidence gathered through government wiretaps.
In Olmstead v.
United States, decided in , the Supreme Court affirmed the conviction. His rights had been violated. Douglas echoed twenty-four years later in the Muzak case. And, in , in Katz v. United States, the Supreme Court overturned Olmstead. Almost every day, he walked down the street to a bank of three telephone booths, entered one of them, and made a long-distance call. Katz was a handicapper; he was calling his bookie, in Massachusetts. He had been making his living this way for thirty years.
To catch him, the F. After recording Katz for six days, agents arrested him and obtained a warrant to search his apartment, where they found ample evidence of gambling.
The Fourth Amendment had always been understood in terms of trespass. It prohibits the government from violating the sanctity of private property—a home or an office—without a warrant. But Katz was not in a home or an office. He was in a public space. It may have seemed wrong for the F. The Court found a fix. The right to privacy does not attach to property, the Court now said; it attaches to persons. Katz became a key precedent in Fourth Amendment cases.
Intuitively, the reasoning appears sound. But there are two problems at the heart of Katz. The first is the distinction between a microphone and an ear. If Katz had spoken loudly enough to be overheard by agents standing outside the phone booth, his words could have been used as evidence against him in a court of law. It was not hearing differently; it was only hearing better. As Farivar shows us, technology continually poses problems of this kind. Take the case of Jones v. United States, in which police attached a G.
Why Do We Care So Much About Privacy?
The tracking device only improved law-enforcement efficiency. Why did it trigger the Fourth Amendment? In another case, Kyllo v.
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