Changing Views on Privacy and Technology

From an article at Ars Technica:

In 1927, in a famous bootlegging case that relied heavily on warrantless wiretaps, one appeals court Justice Frank Rudkin dissented from the majority opinion in favor of wiretaps:

“if ills such as these must be borne, our forefathers signally failed in their desire to ordain and establish a government to secure the blessings of liberty to themselves and their posterity.”

In 1928, former president William Taft – now Chief Justice of the U.S. Supreme Court:

“The reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires beyond his house and messages while passing over them are not within the protection of the Fourth Amendment. Here those who intercepted the projected voices were not in the house of either party to the conversation.”

In response to Taft, Justice Louis Brandeis dissented from the court’s majority decision:

When these principles were adopted, “force and violence were then the only means known to man by which a Government could directly effect self-incrimination,” his dissent explained. “It could compel the individual to testify—a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life— a seizure effected, if need be, by breaking and entry.”

Now “subtler and more far-reaching means of invading privacy have become available to the Government,” Brandeis observed. “Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.”

By 1967, U.S. law had reached a different point in its history with technology and now the minority in the late 20s represented the majority opinion. Justice Potter Stewart explained in another case involving warrantless wiretaps on public telephone booths used by a suspect:

One who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.

Source (Read the whole thing if you’ve got time, this is just a crude summary of valuable history)

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