I don’t think anyone would argue that protecting our privacy these days is getting harder and harder, largely because we can’t control the way other people track our movement. Take traffic cameras, for example, I never agreed to have police or anyone put cameras at intersections or toll booths. Does their presence mean that I have acquiesced to less privacy? Back in the dark ages, before we all carried mobile phones, telephone companies did away with phone booths and simply put the pay phones on walls or stands. They never asked for my opinion. Did that mean that I had agreed to give up some of my privacy or did I simply recognize that some things are not in my control and, as a result, if I intended for a conversation to be private, I had to be more aware of my surroundings. I think the latter is true. Technology and circumstances change all of the time, largely with little input from us. We simply adapt to the new reality.
What is troubling is that our courts routinely respond to the realities of new technology or circumstances as though we have made a conscious choice to lessen our expectations of privacy and that is simply not true. When you speak to someone on your mobile phone, do you expect that call to be less private that when you speak on a landline? Of course not. I suspect that the fact that your voice is translated to a digital signal and transmitted through the air never entered your mind. Your expectation of privacy was dictated by the fact that you were having a private conversation with another person outside earshot of others. It strikes me that this is not a difficult concept to grasp, yet courts have routinely engaged in this type of nonsensical analysis to justify governmental intrusion into our private affairs and justify them by, in essence, blaming us by suggesting that we have lowered our expectation of privacy.
The latest example comes from California where investigators, conducting a bid rigging investigation, without obtaining a warrant, planted recording devices in the areas of the courthouse where bidders were known to congregate. The defendants in that case moved to suppress the recordings as violative of the Fourth Amendment. The legal standard for this analysis is well established. The United States Constitution protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “The Fourth Amendment protects people rather than places, but ‘the extent to which the Fourth Amendment protects people may depend upon where those people are.’” United States v. Nerber, 222 F.3d 597, 599 (9th Cir. 2000) (quoting Minnesota v. Carter, 525 U.S. 83, 88 (1998)). To invoke the protections of the Fourth Amendment, a person must show he had a “legitimate expectation of privacy.” Katz v. United States, 389 U.S. 347 (1967). In Katz, the Supreme Court held that as long as the target has a legitimate expectation of privacy, a warrant is required for the government to conduct electronic surveillance. To establish a “legitimate” expectation of privacy, he must demonstrate a subjective expectation that his activities would be private, and he must show that his expectation was “‘one that society is prepared to recognize as reasonable.’” Nerber, 222 F.3d 597, 599 (quoting Bond v. United States, 529 U.S. 334, 338 (2000)).
The court in denying the defendants’ motion, found that they did not have a reasonable expectation of privacy because, despite the fact that there was no one else around to overhear their conversations, they did not speak in “hushed or whispering tones” and apparently sometimes were “laughing out loud.” Who knew that laughing out loud equated to a diminished expectation of privacy. The court also noted that they did not cover their mouths and at times had to speak over traffic or other background noise in a way that a passerby could have overheard the conversation. But the court ignores the obvious fact that there were no passersby – that’s what made the expectation of privacy reasonable.
Every day, in every criminal courthouse in America, thousands of lawyers have private conversations with their clients; they do not whisper; they do not cover their mouths. They protect the privacy of the conversation simply by ensuring that there is no one around to overhear their conversation – that’s what makes them private.
My thoughts on this matter do not end with a call to action because I don’t think there is much we can do, but I will say this; a few years ago, while speaking at a bar function, a distinguished, federal appellate judge gave a speech critical of what he termed, our society’s diminishing desire for privacy and while I could not completely disagree with him, I could not help but muse at the irony that the biggest erosion of our privacy is coming from judges like him, who continue to engage in contorted analysis in order to admit evidence in criminal cases, rather than have the courage to acknowledge that the conversations in questions do in fact have a reasonable expectation of privacy. To a large extent, it is not society who has diminished expectations of privacy, it is the way our courts have dictated under what is circumstances is such an expectation reasonable that has resulted in the erosion of our privacy rights.
On August 1, 2016, in a related case, United States District Judge, Charles Breyer, excluded from evidence over 200 hours of recordings made at the San Mateo County Courthouse. In a detailed, well-reasoned opinion, Judge Breyer found that that the government had failed to justify a warrantless electronic surveillance program that recorded private conversations spoken in by judges, attorneys, and court staff entering and exiting a courthouse. He went on to find that “[e]ven putting aside the sensitive nature of the location here, Defendants have established that they believed their conversations were private and that they took reasonable steps to thwart eavesdroppers.”
More to the point of my original post, Judge Breyer concluded his opinion with this comment, “With continuing advances in technology, private conversations may become anachronistic rituals reducing intimate encounters to silent exchanges of notes. But that day has not arrived. Until it does, our Fourth Amendment protections should be defined by traditional circumstances. The Court concludes that Defendants had (1) a subjective expectation of privacy in the conversations recorded by the stationary microphones at the San Mateo County Courthouse, and (2) that expectation was objectively reasonable.”
Kudos to Judge Breyer!