KATZ RULES EVERYTHING AROUND ME

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:03 Matt: If the government becomes a lawbreaker, it breeds contempt for the law. It invites every man to become a law unto itself. It invites anarchy.

0:00:18 Jenessa: I don't care. Like, the fact that somebody could go do a background check and find this does not mean it's okay.

0:00:30 Matt: All right. Hey, Jenessa. So I am going to lobby Thomas to call this one Katz Rules Everything Around Me, because it does. Katz does actually rule everything around you. That is the holding of Katz v. U .S. from 1967 that we'll be talking about today. And that's the easiest way to remember it. Yeah.

0:00:48 Jenessa: It's surprising how much this impacts all of discovery in criminal cases, at least, and Fourth Amendment law, and it just gets cited over and over again. It's, what is it now, 50 years old, 60 years old? And it's still coming up all the time.

0:01:03 Matt: This is, of course, part of our Still Good Law series, and this is actually still good law. Believe it or not, this is a really kind of radical interpretation, as we're going to see, of the Fourth Amendment. Katz is actually still good law all this time later, even when we don't have phone booths, even when the tech is way beyond any of the tech we're going to talk about today. I know that you've actually took a law class at some point on some of this exact topic, so we'll be talking about that. We're going to get into the background of this very important case in its own way. It's as important as Miranda and Brown and all the others that we talked about so far. We'll talk a little bit about what you've come up with with some of the more practical applications today and some of the science around it. And we'll talk about the legacy of this incredible case. But I'm really excited to tell you about the lawyer who argued it and about the guy himself. We've got a lot to talk about, so let's get back to it. We'll be right back with some cats.

0:01:35 Jenessa: Mm-mm.

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0:01:57 Matt: The cat lovers around me were very excited to learn that we'd be talking about cats today because we thought we could use a break. It'd be great if we could just talk about cats. I have two cats. Do you have any cats?

0:02:04 Jenessa: I have moved in with a cat who is sitting next to me reluctantly. No, no, I moved in with my partner who has a cat.

0:02:10 Matt: I'm sorry. You're not dating a cat, though, that would be... Okay. Okay.

0:02:18 Jenessa: The cat worked his way into my life and we are tolerating one another.

0:02:22 Matt: I've been there. Yeah, Yeah, no, I know what that's like, but they have a way of doing that. This, of course, is K.A.T.Z., Charles Katz, who is actually a very famous bookie in the 60s. I got to admit, I don't really know what bookies do. I had to look into it a little bit more to be sure.

0:02:38 Jenessa: Oh yeah, now that you mention it.

0:02:40 Matt: This is in the good old days in the 60s when you could commit interstate federal crimes and get a $300 fine for eight federal counts. That was the entire sentence that he was appealing to the Supreme Court in this case. It's $300 for multiple violations of 18 U.S.C. 1804, wagering by phone and interstate bets or wagers. So this guy apparently was famous. I heard an interview where, I think it was his lawyer, somebody was saying that you can't find a single picture of this guy today, which I think is very interesting. The guy who's responsible for privacy law as we know it, his picture is just not available.

0:03:06 Jenessa: You mean the defendant.

0:03:14 Matt: Yeah. Mr. Katz.

0:03:15 Jenessa: How has he so successfully kept himself off the internet, I wonder?

0:03:20 Matt: It's the 60s. I don't know.

0:03:21 Jenessa: Learned the hard way about privacy, I guess.

0:03:24 Matt: Yeah, this is back when bookies were basically mob connected. I couldn't find any proof that he was mob connected, so I'm not going to say he was, but he was very well known as a bookie and he had multiple houses and he happened to live on the Sunset Strip in California. So his deal was that he would go out and use these three phone booths. And just for anybody, I don't know, under 35 who's listening, it used to be that you had to step into a phone booth, which maybe if you're familiar with the concept of Superman, you've seen such a thing, but a glass encased enclosure in which you could make a phone call that had a phone in it that you put coins into. That's what we're talking about here is the the privacy interest in a phone booth, which wouldn't seem to have much to do with today's life, but it does, actually.

0:04:06 Matt: We're going to talk in a bit about how the law developed to this point, because the law was still catching up, as it often does, and as it certainly is now, was still catch up with the technology. For quite a while, during the history of phones, I didn't realize this until I started looking into this, wiretaps were fine.

0:04:22 Matt: There was nothing wrong with just getting a wiretap until 1933. But in this case, just to set this up so we know what we're talking about, this is a bookie who was using this bank of phones and the FBI basically taped a microphone to the top of it in accordance with fourth amendment law at the time right literally just listening and to be sure they protected the privacy of anybody else they had fbi agents around and somebody would give a signal when they saw charlie katz go in

0:04:39 Jenessa: So the phone booth, they were not tapping the phone. Oh, oh.

0:04:52 Jenessa: I'm guessing that's under Fourth Amendment kind of protections to think you shouldn't just snoop on everybody, or I'm assuming that wasn't just a courtesy the government was doing. They were purposely only listening to this one person.

0:05:06 Matt: Yeah it's interesting to say that because to the standards of the times they believed it was legal to just tape a microphone into a phone booth in such a way that and not inside the phone booth because that would be penetrating physically the enclosure which you couldn't do under the law but But they found a way to do it so that you could hear Mr. Katz making his phone calls, placing bets, I

0:05:18 Jenessa: So it's on the top on the outside. Huh.

0:05:26 Matt: Guess. Yeah, that's my understanding.

0:05:28 Jenessa: It's a good mic.

0:05:29 Matt: Yeah. We'll just back up a little bit, though, and talk about the Fourth Amendment, just to be sure that everybody understands what we're talking about. Last week, of course, we were talking about the Fifth Amendment and Sixth Amendment right to counsel and the Fifth amendment right to self-incrimination against self-incrimination, actually.

0:05:44 Jenessa: You can self-incriminate. You have a right to if you choose.

0:05:47 Matt: Absolutely. Always. You're right, if you like. But this is America. You can certainly turn yourself in.

0:05:52 Jenessa: Not a recommendation.

0:05:54 Matt: Let me just read the text of the Fourth amendment, because I think it's a good refresher. There's something I hadn't really thought about until this week, which is that it starts with the right of the people to be secure in their persons, which is actually what this case comes down to. Their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized. That was a very hard-fought constitutional amendment because obviously, you think about colonial history, especially Boston and New York, where redcoats were just dragging people out of their houses or just turning your houses over, looking through everything, getting what they called a general warrant, where they could just go in and look at whatever they wanted to for any reason from the king.

0:06:41 Jenessa: That explains a lot of this because as I was, you know, doing a little reading up for this, As I read that exact text and kind of had a, isn't that interesting feeling that, you know, the First Amendment is like, freedom of speech, freedom of the press. And it's like, that is so abstract. What is that really trying to communicate? This is extremely specific.

0:07:03 Jenessa: Today's conception of a warrant is built into here. A warrant says, here's where I'm going to go. Here are the things I am looking for. Or I cannot pick up things I wasn't looking for that aren't listed in the warrant. It is based on probable cause. Somebody, a person, has to swear, put their integrity on the line that this is the basis for the thing. Like, it's very specific in what you have to do.

0:07:30 Matt: And as I said, hard fought. They wanted to be sure that you couldn't just get, you know, I want to take a look around Jenessa's house. I think there's something going on there. That would just be a general warren, as I understand it. You wouldn't have to get much for a magistrate to sign off on that. Like all of the Bill of Rights, this is something that was added to the Constitution in the understanding that there was a lot of stuff that we had fought very hard to get away from. And this is one of those things. But of course, back then, we didn't have phones. So we didn'T really understand how to integrate phone lines into this whole conception. About the controlling precedent before we get to how this all came down. Olmsted is interesting because Katz is about a very famous bookie, but Olmstead is about our very famous bootlegger from 1928, Roy Olmstad. They used, as I understand it, the best wiretapping technology available in 1928. They just kind of bugged his phone line from a public place because their understanding of the Fourth Amendment at the time was as long as you didn't go into his house, as long he didn't go into property, you could just bug the phone line. And this is before there was anything stopping them.

0:08:30 Jenessa: My understanding was it was literally just like a telephone pole. I don't understand how this stuff works, but like, I donno, wrap a wire around the other wire and now you get to listen to it.

0:08:39 Matt: Yeah, right. Just listen in.

0:08:40 Jenessa: And yeah, it's out on the public street. So it's not a physical trespass, kind of technically, right? So it's fine.

0:08:48 Matt: Right. And there's no unreasonable search or seizure happening. You're just listening in on somebody's conversation and there's nothing wrong with just a little eavesdropping. Surely they didn't mean to keep us from eaves dropping. It's interesting because the majority of it was written by the only Supreme Court justice who was also president, William Howard Taft. Pretty straightforward analysis of the Fourth Amendment saying that it doesn't seem like there's anything wrong with this. But Brandeis wrote an awesome dissent, one of the coolest dissents I think ever, because BrandeIS was looking way ahead and he said, in application of a constitution, our contemplation cannot be only of what has been, but of what may be. The progress of science in furnishing the government with means of espionage is not likely to stop with wiretapping. Ways, this is 1928, remember, 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. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts, and emotions. The idea that, you know, maybe someday we're going to be carrying our entire lives in our pockets.

0:09:52 Jenessa: Imagine that.

0:09:54 Matt: All of our most intimate details and business could potentially be in our buckets without having to remove them from secret drawers. I love that image. 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 the law.

0:10:18 Matt: It invites every man to become a law unto itself. It invites anarchy. To declare that in the administration of the criminal law, the end justifies the means. To decree the government may commit crimes in order to secure the conviction of a private criminal would bring terrible retribution. Against that pernicious doctrine, this court should resolutely set its face. This was the dissent in 1928. Yeah.

0:10:37 Jenessa: That is so thoughtful because so often you hear the complaint in all of these cases is like, but you're making it hard to catch the criminals. And they're going to get away with things. And it's, I love that analysis of like, you're letting the government do things that nobody else would be allowed to do to act as if they are a criminal. Like, yeah, aren't you setting a bad example? I love Love that.

0:11:04 Matt: And it's so true. I have to tell you, having met a lot of people from countries where they absolutely not only can't trust the government, but they're afraid of the government. It's a a completely different kind of relationship with authority and with the government. Like, again, I don't particularly like authority or the government or cops, but at the end of the day, like I'm sitting here safely in my office and I'm going to walk home safely. Not that concerned about the government right now, although they are talking about revoking passports for people who disagree with them. You know, we're getting there. And surely we'll be prosecuted under the Charlie Karkak soon enough, but we're not there yet. But having met a lot of people from countries where they can't trust the government, it's a completely Different mentality. Like you do start to think about every way that you can sort of get through the cracks, make things work for yourself, just try to survive, right?

0:11:46 Matt: The way he's describing this about the government being a law unto itself and inviting anarchy, and we can't let the end justify the means. Again, this is great stuff for 1928. But of course, this was the dissent. And at the time, there was nothing wrong. It's hard to imagine, but there's nothing wrong at all with the government just tapping your phone so long as they didn't invade your privacy to do it. I mean, obviously, that is an invasion of privacy, but they just didn't see it that way because you weren't physically coming on to the curtilage of the property. So because it wasn't a trespass, it's not a Fourth Amendment violation. So Congress saw this, and it took Congress's credit. Five years later, in the Federal Communications Act of 1933, they overruled Olmstead by requiring warrants for any phone wiretaps. So easy rule. Couple other cases before we get to Katz. Goldman from 1942. This involved something called a detectophone.

0:11:45 Jenessa: Yeah, that is delightfully I'm gonna guess 1910s 1920s sounding.

0:12:37 Matt: Definitely 20s and 30s, yeah. It was basically just a giant ear that you put up against a wall, and I could listen to somebody's conversation on the other side of the wall. This this is like Keystone Caps kind of tech. The lawyers tried to suppress this and said that it was a violation of their rights because obviously you're using technology to listen in on something that the human ear wouldn't be able to hear.

0:12:57 Matt: The court said no, the appeals court said, no. And the Supreme court said now they all said this was not a violation of the federal communications act. Cause it's not a wiretap. You know, you could press your ear up to the wall and potentially hear it, but we don't have the analysis that we're going to have in cats where we're thinking about what people expect when they're having conversations. That's what it's going to come down to, not to spoil anything.

0:13:13 Jenessa: We're still just focused on either either physically trespassing into your space or things like communications act wiretapping bands like that kind of thing

0:13:29 Matt: Right. But we still have this mentality that the Fourth Amendment is about property, which it really turns out it isn't. So 1961, we get to Silverman. We're getting closer to Katz now. That was a case where the Supreme Court determined that the feds went too far because they actually bugged a house, actually put listening devices in this house to eavesdrop about more gambling. For some reason, gambling was a big subject of these investigations because it was a different time. They put the wire tabs in the heating system. So that was a violation of the Fourth Amendment because you had to get into the house. It's within the property, right? You're in the home at that point. So this is a constitutionally protected area. This becomes the standard. Is it a constitutionly protected area?

0:13:59 Jenessa: Oh right that was otherwise not possible okay so did they put it in the heating system for like they were standing outside and got it in there like they didn't come through the front door

0:14:20 Matt: This is actually really worth reading because we're talking about the technology of all this. This is something called a spike mic. I'm going to read from the decision here where it says, the instrument in question was a microphone with a spike about a foot long attached to it, together with an amplifier, a power pack, and earphones. The officers inserted inserted the spike under a baseboard in a second floor room of the vacant house, which they're given permission to use next door, and into a crevice extending several inches into the party wall until the spike hit something solid that acted as a very good sounding board.

0:14:43 Jenessa: Oh so these were like um like a duplex like an adjacent like sharing a wall

0:14:51 Matt: Yep. And so they pushed it in just far enough that it made contact with the heating duct. It touched the heating deck and amplified it so they could hear what was going on, thus converting their entire heating system into a conductor of sound. Pretty smart, actually. That was determined because you're getting into the constitutionally protected space. Face. You're actually pushing the mic physically into the house. Even if you're using an adjoining thing, you're not putting a giant ear up against the wall. You'RE actually pushing into the property.

0:15:12 Jenessa: I can see how we get to the this is feeling increasingly arbitrary sort of line of like because you touched the heating duct really like I I thought you were talking about a single family home and I was just picturing some fbi agent in the front yard like trying to chuck it like a football into the the chimney like how were they doing this, but now it makes sense that it was an adjoining house.

0:15:36 Matt: Right. Yeah, tech is getting better and better.

0:15:42 Jenessa: My poor downstairs neighbors probably know way more about my life than any of us would have liked to be true. So yeah, you would assume you can hear some things across that wall, but not literally every word that comes out of your mouth. So okay, I can see how this is all adding up. Yeah, right.

0:15:59 Matt: Not without technology. And I really appreciate just a quick line from Silverman. Actually, this is Goldman and a Silverman, so it's hard to keep straight. But we need not here contemplate the Fourth Amendment implication of these and other frightening paraphernalia, which the vaunted marvels of an electronic age may visit upon human society not very optimistic about the future here nor do the circumstances make necessary re -examination of the court's previous decisions for a fair reading of the record shows that eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied by the petitioners so that's what matters here is you're physically intruding in their space they're contemplating a year a time when someday maybe they'll be able to use a microphone that is across the street like a shotgun mic to be able to pick up what people are saying through a window but they're still not getting to the heart of the the analysis in cats, because that analysis nobody had thought of until we get to Harvey Schneider. So we're going to talk about an attorney, Harvey Schneider, I think he's pretty cool. But before we take a break, what is the science of privacy, about the expectations of privacy?

0:16:57 Jenessa: Yeah. So I got a little bit for you today of something that was kind of tossing around in my brain. I have heard people say, you know, over the course of my life, well, you Know, what are you so worried about? If you're not doing anything wrong? Like, what do you care that they're hearing anything, right? And I, I can see where that natural intuition is kind of coming from, because we do have data to back up when people are being watched, they do behave better. For example, people are way less likely to cheat when there's other people in the room, that kind of thing.

0:17:30 Jenessa: There's a problem here. I think what we're all presuming when we're applying this to the criminal system, it's because you think you're going to get caught. You're going TO get in trouble. I don't do things because I don'T want TO get IN trouble. And that is like stage one of moral development. That is like toddler level ethics of, and I mean literally you can look at like the research on this and that's how toddlers process is like, well, last time I did that, I got yelled at. So I guess we don't do that. They haven't yet conceptualized like, oh, there are things I don't do because I don'T want to hurt people, whatever. Yeah, that isn't actually why most people police their behavior. You police your own behavior, right? Some of the studies have gotten really clever to try to parse that out. One of my favorites, we've shown, okay, we had everybody in the room and they were less likely to cheat if if there were other people in the room and the positioning. And then the researcher was like, what if they're alone and we just put a mirror in theroom and it still worked? It was literally like, I am going to have to look myself in the eye after

0:18:38 Jenessa: I do this. And that was enough. Just the social awareness of like, I should stop and think before I act, that works. So this is really the disconnect. We police our behavior when we're being watched because we stop and think, because we feel socially aware, maybe a little socially awkward. It's not as motivated by, uh-oh, I'm going to get in trouble, as you might think. Think like you know think about the lock on my door 90% of what that does is remind other people that they're not allowed to come in here it's not you know if you wanted to you could unscrew the hinges on that thing and get in here. It's not that hard but most people won't do that because there's a lock on it. This is not a public building. How do you know? Because you tried the knob and it's freaking locked.

0:19:30 Jenessa: A lot of it revolves around that and I think there's also a key piece missing thing which is it's when you know you're being watched we put that mirror in the room and you look up at yourself and you think I I don't want to be this person and you don't do the bad thing if the government is secretly monitoring you we're not going to get that psychological effect of like oh I'm being watched I should do better like if they're watching you and snooping around and waiting for you to do something bad so they can then pounce on you that's not working at all like Like, yes, it's going to work on the people who still have toddler level ethics of I got in trouble, but they have other issues going on. They're going to need some help to stop doing it without needing punishment as the only solution. It just doesn't work that way. The intuition would be, I'm not doing anything wrong. What do I care if people are looking at me? But people is normally like your friends, your family, people who love you or yourself, yourself not shadowy government that may or may not be watching me right now and I don't even you know as we get like you're saying towards those more dictatorship situations like I don'T even know if what I'm doing is considered wrong I DON'T consider it wrong well obviously that's not gonna work so putting that all together as we think about this I know it's really easy to think you you look at these examples, oh, they got somebody saying they did it on tape or they found the evidence and like, oh and we have to throw that out because you didn't have a warrant and it's like, yes! It's the law for a freaking reason. It's really unhealthy for us to just be like, am I being watched all the time for I'm not even sure what and I'm scared of getting caught doing nothing, like not healthy, it's not going to produce the desired positive social effect of like, let me just think carefully about my behavior. That comes from loved ones looking at you, not the

0:21:36 Jenessa: Abstract government.

0:21:37 Matt: You think about like the Gestapo or the Stasi, right in like these extremely repressive societies where and I remember reading I read a whole book about the stop when we were talking about this a few weeks ago and you know they were saying that at the time the third reich was the most monitored civilization in human history they had like complete full reign there was no restriction they could just listen to anybody anytime and everybody knew it you just think about what that does and I think what you're saying it makes a lot of sense that eventually you just kind of wouldn't think about it

0:21:53 Jenessa: Wow, that's so interesting. Yeah. It's like it's gone. Everything I'm doing is public, so nothing is public. Like if you think even like going to the bathroom is public. Like now you've just lost all sense of what it means to be private. That's not helping.

0:22:07 Matt: Anymore yeah yeah

0:22:19 Jenessa: When you look at the, I'm going to get in trouble for things that I don't even think are wrong for like saying something bad about the Fuhrer. Now we're more into that like almost abusive relationship situation. I'm walking on eggshells. I don'T know what's going to piss you off next. I DON'T KNOW WHY I'M GOING TO GET IN TROUBLE. So I'm just like, I think I'm being watched all day and I'm JUST TRYING NOT TO DO ANYTHING TO PISS ANYONE OFF. Also very unhealthy not gonna work yeah

0:22:18 Matt: Right yeah those of of us who are extremely online had this thought over the last week or so because people started very carefully watching what other people were saying about the death of a certain public figure for some reason it became something where you could get yourself in a lot of trouble you could get fired where people would send mobs after you if you didn't properly venerate the public figure who had been killed I wasn't really joking about the charlie kirk act I was still thinking about the possibility that because you know you had clay higgins talking about how we're going to ban people from the internet who's had anything bad to say about charlie kirk after he died I feel like we're getting to that kind of conception. We're getting closer.

0:23:17 Jenessa: Somebody high up in the administration was saying well there's freedom of speech and then there's hate speech and we're gonna come after you if it's hate speech against a person I'm like you're literally suggesting like her definition of hate speech is I didn't like that one individual personally like no hate speech just directed at groups my friend

0:23:39 Matt: Now they care about hate speech. Yeah, of course. And the Department of State announced that it was going to revoke visas or deny visas to people who were caught on social media talking about this stuff. This is not great. But we're here to talk about the good times, about the Warren court, about the only time in US history when we had a full liberal majority for many years. So let's get back to that. We'll come back in a second and we'll talk about the actual arguments and decision in Cats v. U .S.

0:23:43 Jenessa: What yes

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0:25:49 Matt: Back to the good stuff. We got distracted there by our horrible present. Let's talk about 1967 once again. So idealistic young Harvey Schneider is fresh out of law school a few years out. This is his first Supreme Court argument. And the Supreme Court was looking for a case like this because they knew that they had an issue, that they, it's kind of like what we're talking about with Miranda, where they knew that there was a problem out there that they hadn't really addressed yet, that they they had to try to catch up with things. In Miranda, they knew that the police were beating people up and torturing confessions out of them and that they hadn't really gotten the law right about making sure people knew what their rights were. And here we've got new technologies and they understand that technology is going to continue to change. And they understand they're still stuck in this sort of fourth amendment framework that is based on, you know, literally, did you push a microphone across the property line into my property, right? The CERT petition in this case, when they took it up to the Supreme Court, did not include the thing that everybody knows this case for. This is actually a real S -tier God move that Schneider pulled at the argument, where he's like, actually, after thinking about it for a while, he came up with the idea because he was trying to find a way to pull the focus away from Constitution -protected areas, because obviously the phone booth did not belong to Charlie Katz.

0:27:06 Matt: This was a public phone The question that he came up with in this was, what is a reasonable person's expectation? Because he was thinking about the tort standard of the reasonable man, and he thought, well, what, can we just kind of graph that on? Can we just stick this, staple this on from torts and just say, what does a reasonable person expect. So he raises this in the oil arguments and the Supreme Court loves it because it solves the problem. It shifts the focus away from places to people, which is really what the Fourth Amendment is supposed to be about. This is before we're getting into sort of the Douglas, and we'll have to talk about Griswold at some point, that comes up in the next couple of years after this one, but we're not getting into the penumbra yet. We're not get into that sort of,

0:27:06 Jenessa: Of course not yeah what privacy is and yeah yeah.

0:27:50 Matt: Right, like how broad these rights are. And if there is, and at the time, Potter Stewart and in the majority finds that there is no general Fourth Amendment right to privacy. But he does note that the Third Amendment and the Fifth Amendment, so the courting of troops and the right to not have to speak out against yourself, these are privacy interests at the end of the day. We want to protect ourselves and our homes. They just decided that the constitutionally protected area thing just doesn't really fit with phones and with modern technology. The Fourth Amendment protects people, not places. What someone knowingly exposes to the public is is not a subject of Fourth Amendment protection, but what he seeks to preserve as private is, is what they find. So the government in an argument is trying to say, well, he's visible through the glass.

0:28:31 Matt: So you can see that Charlie Katz is standing in a phone booth. But Stewart writes, what he sought to exclude when he entered the booth was not the intruding eye, but the uninvited ear. That's really important. Like you can be in a public place and still expect to have some privacy. So they're saying like, basically they're already on their way out with Olmstead. They understand that it's not really going to be the law. It becomes clear that this this does not turn on presence or absence of physical intrusion. It's not the trespass doctrine in the same way. The government also made the point in this case that the agents chose to do this in a way that would be the least intrusive possible. And Stewart writes that the restraint was imposed by the agents themselves, not by a judicial officer. They should have had to get a warrant. So he's saying like, we got lucky this time that the agents decided they wouldn't go inside the phone booth, but there was absolutely nothing stopping them. And maybe we should be the ones stopping. The judges should actually be saying what the rules are. The governor even tried to say that surveillance of a phone booth just across the board. It shouldn't need a warrant. Potter Stewart, again, does not agree with this and says that the far less reliable procedure of the after -the -event justification is not the way to go.

0:29:33 Matt: We have to just get a warrant, probable cause, just make it work. As you were saying, I think in the Miranda episode, do the work.

0:29:31 Jenessa: Just do it.

0:29:40 Matt: Just go get the thing. Stop trying to get around it. We Have a Couple of Concurrences Here. Byron White has kind of a scary concurrence. I don't like it very much. He points out that we shouldn't require a warrant if the attorney general says it's reasonable, basically, if it's like a national security issue and the government says, well, we can do this without a warrant, which is kind of where we're going. Yeah, not great. Douglas and Brennan called him out in their own concurrence and they said he went too far on this, that you shouldn't just be able to let the government claim national security and not have to get a warrant. And there's this great line about how spies and saboteurs have as much rights as petty criminals, that we can't just make exceptions for spies and saboteur. That sounds so innocent and nice today, right? Because clearly we're as quick as possible they're trying to make exceptions or anything that looks like national security.

0:30:21 Matt: Douglas Douglas and Brennan in their concurrence say there's no exceptions just because a crime is particularly heinous. But the Harlan concurrence is what this case is actually known for. And I actually thought before I went back and reread this, that this was the holding. It's that famous, this concurrence. But Harlan said, you know, I appreciate what you're doing here. I concur with the judgment, but we need to create a test so we can figure out in the future how this works. And he said, if you have a subjective expectation of privacy, that's step one, which society would would consider to be reasonable. That's step two. So he basically adopts what Harvey Schneider was trying to tell him. And he says, we can't draw lines about conversations when you're out in a public park or whatever. You can expect people might walk by and hear you. But if you're standing in a closed phone booth, if you'RE in your living room, if YOU'RE in a hotel room, right? These are places where you expect that people are not going to be listening to you. So harm and concurrence is the thing that people think of with cats. And that was eventually became the law, but that's not the law. I just want to note very quickly, Black was a constitutional absolutist. And And he basically thought there is nothing in the Fourth Amendment that would suggest the government can't just eavesdrop on you,

0:31:22 Matt: That we're protecting conversations. That's the way he put it. He said, we can't rewrite the amendment for the times, that we have to look at the language. He's very literal textualist on this. And you can't search or siege a conversation. Future conversations are intangible. Like there's just nothing about a conversation in itself that seems like it would sit in the Fourth, in the fourth amendment. And I guess in the strict sort of sense of the word, if you don't have phones, if If you don't have something that the government can tap into from afar, if you're just talking very loud with an open window during the summertime,

0:31:53 Jenessa: Guess my conversations are rarely private in in that case.

0:31:56 Matt: It's true. We have very different levels of voice here. I can see where he's coming from, but that dissent hasn't held up very well because this was a 7 -1. I should point out that Thurgood Marshall had actually been Solicitor General at the time when the cert was up, so he was out of the case, but he didn't need to be in a 7 to 1. Pretty definitive, very important Supreme Court case. And the real hat trick here though was getting the supreme court to adopt this language about a reasonable expectation of privacy if you have a reason when you're in a place even if it's a fairly public place to think I can close the door I can get away from everything and nobody's going to hear me that is a reasonable expectations of privacy so this this case is the basis for privacy law under the fourth amendment as we know it for when we determined the government should should have gotten a warrant to search your stuff. As you might imagine, and as I'm sure you'll be telling me, there are lots of ways that this can play out that have nothing to do with phone booths or any of the technology available at the time.

0:32:56 Matt: Let's take one quick break and come back, perhaps, and talk about some of the legacy of cats and what you can tell me about where it's going.

0:33:06 Ad: [Ad break 3 — ad music]

0:33:06 Matt: So, I've told you about cats. Tell me about what happens afterward.

0:33:10 Jenessa: So I've got two for you. For anybody listening who's in law school, I'll give you a little tip here. Take all the classes because, man, I saw electronic discovery on the list and I was like, that sounds boring as hell.

0:33:24 Matt: When are you ever going to use that?

0:33:26 Jenessa: Yeah but you know what? It fit into my schedule because it was a night class and I was working and I was like, well, you know, I'm sure it's a good skill I should have. It's boring, but it's a skill. Oh my God, it was the most interesting class. It might be my favorite class in the entire time I was there.

0:33:42 Jenessa: The first half of it was like civil discovery process and the second half was like criminal, I guess, you know, we don't technically call it discovery, but it's the government searching you, right? To have that taught by somebody who worked for the police department on warrant issues, like kind of helpful. It was just fascinating. And a lot of these cases are familiar. We covered a lot the more modern stuff that cites cats very frequently, but I didn't actually know about the phone booth as the critical issue. There's two that really jump out as setting us up for how this has evolved in the modern era. And I want to kind of take us towards Sotomayor being incredibly prescient. This first one, Kylo v. United States, basically they just have reason to suspect, nobody can seem to tell me why, that this guy is growing pot in his house. What they do is they use a thermal imaging camera, because they know if you're doing indoor growing, you're going to have these lights, and those are really hot, and it'll heat up the room. And they get this big warm blob, and they use that and a couple other things to get a warrant.

0:34:57 Jenessa: It and they go in and sure enough there's a big old pot farm in there what they ended up doing to get this changed it's based a lot on cats did they physically intrude on your property no not at all they did this from across the street did they touch it like in some sort of physics sense no we've always said like using your eyeballs is not touching things it's fine the ninth circuit asked for an evidentiary hearing to be like, how intrusive is this? What can it show? And they said, oh, you know, it doesn't show people or activity. It doesn't penetrate walls or windows. It can't reveal a human conversation. And the problem here is the Ninth Circuit is going to say that's what matters. And we're going to have Scalia say, I don't know where you're getting this from, this idea that like, oh, if it was like minimally intrusiv, like that there's some spectrum of intrusivity that would make it okay.

0:35:56 Jenessa: There's either a reasonable search or an unreasonable search or no search at all. Those are your three pretty much, I don't know, I was going to say binary options, trinary options. They don't have a spectrum of like, well, it was an unreasonable search, but it wasn't like super intrusive. That's not the standard. What they say is critical here that they're using technology that the general public does not have access to. So you have a reasonable expectation of privacy in all kinds of things, including the temperature of your house. You don't expect that people wandering down the street can tell this kind of thing. Now, I know that sounds silly. Like, why would I think that's private? So we have to remember in the legal sense of the word privacy, privacy it's not like oh this is very private and personal no it's private in the sense that you don't expect other people would know this so this one is really setting up a standard that says hey if this is not widely available to the public the government can't just use this tech to look into your house and I don't care that it couldn't see people I don't care that it doesn't like zoom in on your butthole.

0:37:20 Matt: Hmm, hmmm.

0:37:20 Jenessa: It doesn't matter. It saw a thing that was inside the house and there's like a dissent that tried to draw a distinction between like looking at the wall and looking inside the wall. And he's like, the wall is hot because of stuff inside the wall making it hot. It's peak Scalia in terms of like him at his best being like, come on guys. So that one is good, good but it still leaves us in this weird position of like so if everybody had that technology then they could the one we're gonna get that is really like cited all the time and we're going to get a really interesting breakdown of the justices here it's going to be 9 -0 concurring in the judgment this was an unreasonable search you can't do this we're to have five for the majority test, which is Scalia, Roberts, Kennedy, Thomas, and Sotomayor. Sotomaior is also going to separately write a concurrence. I think she signed on to that side of it to make sure there was a majority, that we didn't just have this weird plurality of like four, four, and one. So by signing on to that, we had five people signing one opinion. This is a controlling precedent, a rule. She wrote her concurrence. And then we have a concurrence that takes a completely different approach. Alito wrote it, joined by Ginsburg, Breyer, and Kagan. And Alito wrote an opinion that I think a lot of people would actually appreciate. So for real, check out this case, U.S. v. Jones. I don't want to suggest Alito wasn't a monster, like that he wasn't always like this, because it seems like he probably was. But I don'T know. It's like you're seeing the court at what it could again what it could have been when like you have this weird collaboration of like what is the right answer here it's not conservative or liberal it's it's trying to come to the best way to approach our society yeah

0:39:24 Matt: Alito and Scalia both have their moments on criminal stuff and on civil rights.

0:39:28 Jenessa: Oh

0:39:29 Matt: Scalia was great on Confrontation Clause and Fourth Amendment stuff, as we talked about with Kyla. But this Jones, I do remember something about it being a GPS tracker without a warrant. Okay.

0:39:37 Jenessa: Yeah so what they're gonna do they want to put a gps tracker on this person's car they get a warrant actually but here's the problem they get away with it and they get a warrant and the judge says okay sometime in the next 10 days. And within the District of Columbia, this is a judge from the District of Columbia issuing it. So Washington, D .C. On the 11th day, they install it in a public parking garage in Maryland. And you know what? Nobody disputes that it's close enough, right? The government doesn't try to argue that the warrant was valid. None of the concurrences try to give that any attention. Like it said, these were the parameters for the search. The fourth amendment could not make it clearer. Warrants have to list the parameters of how the search is going to work and you didn't stick to it.

0:40:30 Jenessa: So they had a warrant to put a GPS on this guy. And then I don't know what bonehead screwed up and just, just waited an extra day and did it in the wrong city. The government's going to try to say, okay, it was parked in a public parking garage. We stuck a GPS tracker on it, which like it's 2012. Those are around. And they were driving on public thoroughfares. They were driving down the streets. And we already have a ton of case law that says you don't have an expectation of privacy just in where you have gone to and from driving down the street because cops will tail you, right? And so we had to have cases that said, well, I don't know that we had two. We do have cases let's say cops are allowed to tail you from point A to point B without a warrant. So isn't it the same thing?

0:41:19 Matt: It would be pretty hard to tell you 24 -7, rotating teams of cops watching you at all times. This is certainly easier than that.

0:41:30 Jenessa: And Alito is going to make that point of like, this is not that. Scalia is going decide it on the basis of the old school trespass and say, hey, Katz said in addition to the trespass thing, there's also reasonable expectation of privacy. It didn't say the new rule is a reasonable expectation of privacy and we are throwing out that trespass thing. I don't care that it was in a public parking garage under old school civil tort trespass. Of course, he's got to like originalist it up. Yeah, you were trespassing if you touched my car. Now I'm going to have a hard time suing you unless you cause damage, but technically it is automatically a trespass when you touch it.

0:42:14 Jenessa: If that you and me, that would be a trespasse. So if the government does it, it's a trespASS and that's the end of it. It doesn't matter that it was in public and it doesn't you were driving down a public thoroughfare, they had to touch your car, done.

0:42:27 Matt: And this is probably magnetic or something.

0:42:29 Jenessa: Yeah, I'm not quite sure. They attached it to the underside, so they must have had to do something slightly involved so you could be driving down the road and not have it like fly off, you know? They didn't have to open the door. So that was their argument. They were like, come on, we were in a public parking garage. I rolled under the car, stuck something under it, rolled out and ran away. Like who cares? All nine judges agree that we do care and this is not okay. What I think is so prescient here is Sotomayor's concurrence. She's saying, yes, I agree with this position that the trespass rule still exists and I like it. Alito's writing seems to imply that the trespass thing is done with and all we care about is reasonable expectation of privacy. I don't want to sign on to that. She clearly got to decide what was going to be the majority opinion. I would like to add something. So she writes us a decision here that is all about, hey, we have a surveillance surveillance problem here. This is not the same. So exactly like you're pointing out, could we hypothetically hire enough cops to tail everybody in town 24 -7? Um, no. Could I get a cop to tail one person 24 - 7? Uh, I would need a team of people because they're going to get hungry and tired, but like, I guess I could at great expense and with mistakes. Right now, 2025, your car probably itself has GPS in it. You have a phone in your pocket that has GPS. Like, it's so easy to track everyone in town, right? So she's in 2012 going to be looking towards that. So what she brings into this is we have to have a conversation about the fact that surveillance is getting bigger and bigger and bigger. CATS was decided at the time when there were phone booths, and that is meaningful. You have phones in your pocket in 2012. And she's noting for us, for example, even short -term monitoring, some unique attributes of GPS surveillance relevant to the CATS analysis will require particular attention. GPS monitoring generates a precise, comprehensive record of a person's public movements that reflect a wealth of detail about her familial, political, professional, religious, and sexual associations. Pulls in a quote from another case, disclosed in GPS data will be trips, the indisputably private nature of which takes little imagination to conjure.

0:45:10 Jenessa: Trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by -the -hour motel, the union meeting, the mosque, synagogue, or church, the gay bar, and on and on. I love the combination of that list of things one might be embarrassed to disclose.

0:45:28 Matt: I wouldn't have the sexual politics of cats. I hadn't thought of that. Just how intimate you can be of just following somebody around. And thinking about cars, you expect that that people might be able to see where your car is going, just not every minute of the day. It's a really interesting question.

0:45:46 Jenessa: Exactly. So what Sotomayor is getting at here is like awareness that the government may be watching catching chills, associational and expressive freedoms. This concern that, like, you're not going to go to the mosque if you think you can be GPS tracked without a warrant. You are not going to go the psychiatrist if you are worried that you're going to be judged for that. And, like. Who cares? It's not relevant to the criminal case. The government is keeping track of this data. And if you. Are either embarrassed about it or there's certain jobs where, unfortunately, they still think seeing a mental health professional means you are unfit to go to the job. There's all kinds of reasons people might not want to disclose all kinds of things they're doing that are perfectly legal. She's really expressing here this concern that as this surveillance state increases, as we are getting more and more able to collect data on more and and more citizens, we're going to run into a problem. One thing she mentions is it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. We kind of take that for granted, and I think we still do.

0:47:07 Jenessa: What she says here is the approach is ill-suited to the digital age in which people reveal a great deal of information about themselves to third parties in the course of carrying on mundane tasks. People disclose the phone numbers they dial or text to their cell providers, the URLs they visit and their email address with which they correspond to their internet service providers, The books, groceries, and medications they purchase to online retailers. This is 2012, but it is so prescient for the level of surveillance we experience today of like, companies know everything about you. They know every website site you clicked and everyone you're friends with and everyone you've called and really expressing this feeling of we're all very uncomfortable with this. Nobody likes that everybody knows this about us. And if some public company, you know, Facebook knows all of this about me, nothing stops Facebook from voluntarily disclosing that to the government, right? What she's really expressing here is we might need to reconsider that.

0:48:13 Jenessa: The fact that you were willing to tell Barnes & Noble what books you buy and what your phone number and your address is does not mean you were willing to that to an FBI agent. And like, why are we treating it like that? I just love this whole thing. She writes, it's like three pages, but it is really encapsulating a problem with not modernizing our understanding here that it's becoming harder and harder to have any privacy. You know, I remember in class when we were talking about cell phone privacy and how that should work. I remember saying to my professor, like, there are things in my phone that I wouldn't say to my own mother. Like, you could, I'd be more comfortable with you subpoenaing her to tell my secrets than opening my phone. And it's not because it's embarrassing necessarily. I'm sure there's embarrassing things in my phone. But like there's, embarrassing, there's also just extremely personal. There's things you need to keep private for. I mean, like as lawyers, obviously, we have things in our work phones that are privileged and we need to know that is not going to get disclosed by Apple in a subpoena. It's a problem that we just think well because somebody else could overhear it somebody else could gps track you what about there's air tags now you could throw an air tag into my car so does that mean the government can just do it now like no she's trying to set us up to say no government should be held to an even higher standard as opposed to well as soon as the general public gets this technology, then I guess it's okay. It's powerful writing.

0:48:25 Matt: Right, sure, yeah. I've been wondering about this in the context of the generation growing up that doesn't remember anything else, right? Because even the other day, like I have an Oura Ring because I've been trying to track my sleep and my fitness, and I just, I found there was an option in the Oura ring app where you can share all of your MyChart data, which is all of my medical records, with this Finnish company. And I did it I didn't really think about it and then as you're talking to me about this I'm realizing that like the government could get all of my medical records just by tracking my ring or getting into this app right I don't know I don't know how this works all the stuff that we don't even think about that we're giving up you know would you like to log in with facebook log in with google right you're just leaving these tracks these cookies everywhere right yeah all the stuff she's talking about in there and all of this with the reasonable expectation I mean we are degrading the reasonable expectations of personal privacy by doing that right so that that's really interesting

0:50:40 Jenessa: So we have like that Katz test is saying you have to have a subjective personal expectation that was private. You also have to have this objective sense that society would expect it to be private. And what is happening, I find it in just our day to day lives is anytime you express like, oh, I'm uncomfortable with this invasion of my privacy, there's always somebody who wants to go, well, they already know everything about you anyway. All your information is already everywhere all over the web. And I'm like, um, yeah, I don't, first of all, I do not like that. And second of all, do not care. Like the fact that somebody could go do a background check and find this does not mean it's okay that you could just find this as easily. You know what I mean? So I think you're entirely right. If we start to create the objective part of that test becomes nobody really expects

0:51:06 Matt: Societal right right hmm right

0:51:38 Jenessa: Almost any privacy in any of their electronic movements, then I guess the government can just track anything you're doing online. No we have to create a cultural standard that sets up that test for I don't think this is okay and the problem is right now with the law they're gonna say if you disclose to another private person then you're not it's not private anymore then the government can have it and like no oh

0:52:03 Matt: Think about like the Google Home and the Alexa that's just constantly listening to you right and like we know that this has come out before that like sometimes employees will just listen in from these companies and there's you know there was one very famous murder case where they were able to get the audio from just before the murder because they're recording every 30 seconds or whatever you're like you know that kind of stuff that it's just in your house but yeah we should wrap this up but I was thinking because this kind of wraps back to Katz. Because one of the things that I discovered when I was doing this research that Katz actually was able to severely curtail was police surveilling people in men's rooms for homosexual behavior.

0:52:42 Jenessa: Gross.

0:52:44 Matt: Yeah, they would use like peepholes and recording devices to try to catch guys in bathrooms doing the most private stuff you can do. And there is a reasonable expectation of privacy to a degree, I guess, in maybe a single stall bathroom. This point that this one decision in Katz about phone booths ended the surveillance of gay men in restrooms, which shouldn't have ever been happening. It's so gross.

0:53:10 Jenessa: Like A, why?

0:53:12 Matt: Right.

0:53:13 Jenessa: B, shouldn't this obviously so much more so than the phone booth be violating your privacy? But I think actually it's a really smart decision from the perspective of a civil rights lawyer of like, unfortunately at that time, a case about protecting the rights of gay men was probably not going to work out very well, I would imagine, with the Supreme Court.

0:53:38 Matt: Much more controversial question.

0:53:40 Jenessa: The ick. I think it's all about the ick, like all nine justices in the Jones case had the ick about the idea, oh, you could just stick a GPS on my car? No, we may all think for different reasons, but no to this. I think it would have been very easy for a lot of people to be like, well, I'm not doing that.

0:54:00 Jenessa: So that I don't have to worry about this. But everybody's using the phone booth. And all of a sudden, the ick about, oh, it could have happened to me. It's very strategic.

0:54:10 Matt: Objectively, you have far more expectation of privacy in a bathroom than you do in a phone booth.

0:54:14 Jenessa: Clearly. Obviously.

0:54:17 Matt: But it all applies to the same thing. Actually, wait, before we go, Jones was the case with the tiny constable. Wasn't that the one where Alito was talking about how it would take a tiny constable? He's being originalist about it. He's like, well, how would we look at this in 1791 or whatever, right?

0:54:28 Jenessa: In my very fast flipping through, I am not spotting it, but it is a multi-page decision.

0:54:34 Matt: And it's footnote three.

0:54:35 Jenessa: Ah, a footnote.

0:54:35 Matt: I had to find it. It's, of course, the footnote. I remember the footnotes. And you know what? The court suggests that something like this might have occurred in 1799. But this would have required either a gigantic coach, a very tiny constable, or both. Not to mention a constable with incredible fortitude and patience. So that's a very good footnote, Samuel Lito. I'll give you that, you know, for all my other issues with you. That's pretty solid. All right. This is good stuff. We have learned a lot today about cats. Everybody loves cats. And so we will leave it there. And of course, it turns out the internet has a lot to do with cats. We really can't have the internet without cats at all. So cats

0:54:51 Jenessa: Out. Yeah. We all took videos of our cats and next thing you know, we're taking videos of all of our private lives. I blame it on the cats.

0:55:21 Matt: Have, I would say, a heightened expectation of privacy at all times. Well, good talking to you. This has been great. We'll come back and we'll talk about some more very good Supreme Court Warren era law without too much intrusion on our current times another time later.

0:55:33 Jenessa: Sounds good. See you then.

0:55:35 Matt: Did I say that White's name was Hugo before? I think I might have said Hugo White and Hugo Black. Those were not getting a little loopy here. Yeah.

0:56:16 Jenessa: I think you did. I heard White. Who's Hugo White?

0:56:20 Matt: Somebody else who's not on the Supreme Court. And now I'm going to say Walter White because I'm very tired. It's not Walter White. That's Breaking Bad. Whizzer White. Remember he was a football player. He's in the KKK.

0:56:32 Jenessa: He was a football player and in the KKK.

0:56:34 Matt: Now I'm confusing Black and White. Very common problem. Got to tell you, I had two beers at band practice and because I completely forgot to eat today, that went a long way. They were both in the Supreme Court, Byron White and Hugo Black.

0:56:46 Jenessa: Wait he was a kkk member and on the supreme court

0:56:53 Matt: Probably not the only one. Hugo Black did pretty much redeem himself. He went on to be very good on civil rights.

0:56:59 Jenessa: All right well people are allowed to change your mind I guess