SUPREM~1, Komputer, More Hacking
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The Supreme Court and Electronic Surveillance:A Study of Originalism, the Fourth Amendment,and the Powers of Law Enforcement.Mark Morley, S.J.Loyola University Chicago mmorley@orion.it.luc.eduLewis-Bremner Residence6525 N. Sheridan Rd.Chicago, Il 60626 21 December 1993In framing a government which is to beadministered by men over men, the great difficultylies in this: you must first enable the governmentto control the governed; and in the next place obligeit to control itself.Federalist #51 (Madison)IntroductionThe Constitution of the United States calls for a separationof powers between the executive, legislative, and judicialbranches of the federal government. The boundaries of thesepowers have been in contention since their inception over twohundred years ago. One of the current battle grounds is theFourth Amendment.1 In recent decades the advent of electroniccommunications has necessitated a balancing act betweenindividual privacy and government surveillance. Over sixty yearsago the Supreme Court heard its first case dealing with thetelephone and decided it had no constitutional jurisdiction toplace restrictions upon law enforcement wiretapping.2 In the1960s the Supreme Court began to overturn its previous position____________________1The right of the people to be secure in their persons,houses, papers, and effects, against unreasonable searches andseizures, shall not be violated, and no warrants shall issue, butupon probable cause, supported by Oath of affirmation, andparticularly describing the place to be searched, and the personsor things to be seized.2Olmstead v. United States, 277 U.S. 438 (1927).1in favor of protecting individual privacy.3 This decision wasrepresentative of a transition from a moderate to a more overtlypolitical Supreme Court. As the Supreme Court effectivelyextended its powers, Congress responded with the firstlegislation drafted to restrict electronic surveillance by theExecutive.4 Inevitably, communication technologies like thetelephone began to combine with innovative computer technologies,and the protection of privacy afforded by these laws quicklybecame antiquated. In the 1980s Congress attempted to catch upwith technological change by implementing a new privacy act.5These developments clearly indicate that Congress and theSupreme Court have tended to perceive the advancement ofcommunication technologies as a threat to individual privacy.Therefore, they have tried to protect citizens from surveillanceby intrusive law enforcement agencies. In other words, theconcern of Congress and the Supreme Court has been to maintain abalance between civil liberties and the powers of the Executive.While Congress was enshrining civil rights, the Executiveconcerned itself with enforcing the law and protecting nationalsecurity. Consequently, its surveillance capabilities havecontinued to expand in step with the advancement of communicationtechnologies. Moreover, it has tried to maintain control over thedevelopment of cryptology in order to safeguard classifiedinformation. In recent years, however, the advent ofmicrocomputers along with sophisticated encryption software hasplaced the ability to secure privacy in the hands of individualcitizens. In other words, the technological tables have turnedsuch that individual privacy can be protected without recourse tothe civil rights legislated by Congress and upheld by the SupremeCourt. As a result, the Executive no longer sees cryptologysimply as a means to safeguard national security. On thecontrary, since cryptology in the private sector inhibitsgovernment surveillance, it is perceived as a threat to nationalsecurity. In order to maintain the surveillance capabilities thathave become indispensable to law enforcement, the NationalSecurity Agency is currently seeking ways to regulate cryptologyin the private sector.Thus, Congress finds itself pressured by the Executive togrant the power of law enforcement explicit priority over civilliberties. However, any new legislation must stand up in theSupreme Court to an interpretation of the Fourth Amendment thathas come to endorse a right to privacy. Such an abrupt turning ofthe legislative tide reveals the interests of all three branchesof the federal government. In particular, it exposes the____________________3Katz v. United States, 389 U.S. 347 (1967).4Title III of the Omnibus Crime Control and Safe Street Actof 1968.5Electronic Communications Privacy Act of 1986.2political character of the Supreme Court.According to legal theorists known as originalists, theFramers of the Constitution never intended the Supreme Court toplay a role in American politics. In other words, judges mustinterpret the Constitution without bias to the extent that theyrefrain from adjudication when the law does not directly addressthe matter at hand. If non-elected officials move past thisboundary, they step into the rightful jurisdiction of thelegislature and inappropriately upset the balance of powers. Inthe extreme view, the justices of the Supreme Court corruptedtheir powers when they jumped on the civil rights politicalwagon.According to legal theorists known as activists, the SupremeCourt cannot act in a neutral manner. Even to refrain fromadjudication is to take a political stand. Once the Supreme Courtbegan to advocate civil rights it exposed its political functionsuch that it can never return to its mythical legal purity.Rather than pretending to be unbiased, judges must address theinjustices embedded in social structures. Yet activiststhemselves are divided between a liberal interpretation of thelaw which is inherently conservative and a radical interpretationwhich calls into question the legitimacy of legal institutions.Individual privacy versus government surveillance is onlyone among many Constitutional controversies which highlight thecurrent legitimation crisis of the Supreme Court. Perhaps what isunique to this particular issue is the role technological changehas played in swiftly expanding and then quickly challenging theprotection of the Fourth Amendment. In this essay we will tracethe technological development of electronic communications alongwith the corresponding legal developments in order to unmask thedecisive political role of the Supreme Court. In particular, wewill be focusing on the developments which have led to thecurrent controversy regarding electronic mail and dataencryption.The Supreme Court and Electronic SurveillancePhysical intrusion by law enforcement agents was the onlymeans of "search and seizure" available to the government at thetime the Constitution was drafted. The Fourth Amendment requiresthat agents obtain a warrant before a search may be legallyconducted. In order to protect citizens from "unreasonable"intrusion, a warrant must be based upon probable cause, issued bya magistrate, and executed within a time limit. Moreover, it mustspecify the place to be searched and the objects to be seized.6The question of government wiretapping under the FourthAmendment was first addressed by the Supreme Court in Olmstead v.____________________6See L.A. Wintersheimer, Privacy Versus Law Enforcement -___Can the Two Be Reconciled? (Cincinnati Law Review 1988, 57:315-320).3United States.7 Evidence against the defendants in Olmstead wasobtained by intercepting telephones messages of the defendants.8The interception was achieved by inserting small wires into theordinary telephone wires without any physical trespass into thedefendants' property.9 The defendants claimed that the use ofevidence obtained in this manner violated the Fourth Amendment asan unreasonable search and seizure.10 The O...
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