"The right of the people to be secure in 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."
Today, the amendment is commonly interpreted to mean that the police cannot arrest someone or search this person's person, property, or belongings without a warrant. However, there are some exceptions to this rule. Law enforcement may perform frisks, plain feel or plain view searches, and vehicular searches. Additionally, if one consents to a search or one has been placed under lawful arrest, law enforcement may perform searches that are not prohibited under the Fourth Amendment.
With these many exceptions, one must wonder what exactly is protected by the Fourth Amendment. When contemplating whether or not a search may be conducted, one must consider whether there is a reasonable expectation of privacy. What this means is that though the police may not be able to listen in on conversations you have in the privacy of your home, they can listen in if you are making a public speech, or you happen to be conversing in public.
But exactly is the line between private and public drawn? How private is a phone call, or even a radio transmission? After the outcome of Katz v. United States, the Wiretap Act of 1968 was instituted. This act protects oral, wire and electronic communications from interception without a special order known as a Wiretap Order. Wiretap orders were even harder to get than regular search warrants. Since then, electronic communications interception has legally been considered a "search", and therefore is under the power of the Fourth Amendment.
Though the police may not be able to legally intercept transmissions, the federal government can. In 2002, the Patriot Act allowed the FBI and the NSA to subpoena phone records from phone companies and listen in to and record phone conversations. The Patriot Act also made it illegal for phone companies to tell customers about the fact that they disclosed information to the FBI and/or NSA. Phone companies weren't even allowed to make it publicly known that they disclosed information at all.
So how do cellphone communications fall into all of this? It seems that in 2002, the police couldn't intercept your phone calls without a special warrant, but the federal government could do so without any kind of warrant.
Should the government require a search warrant before they intercept your cell phone calls? I think that your answer to that question may depend on whether you think cell phone calls have a reasonable expectation of privacy attached to them. Are cell phone calls private? Maybe they should be considered such if you and the person you are conversing with are both in the privacy of your own home(s). Should we consider a cell phone call private if you are yacking away in a public place? I'm sure we've all had the pleasure of overhearing a loud individual conversing on his or her phone in a confined space, such as an elevator or a bus. If some can hear each half of the conversation, who's to say that the government or the police shouldn't be able to treat that conversation as a public conversation, which is not protected under the Fourth Amendment?
Sources:
- http://communications-media.lawyers.com/privacy-law/Cell-Phone-Privacy.html
- https://ssd.eff.org/wire/govt/wiretapping-protections
- http://voices.yahoo.com/exceptions-warrant-requirement-fourth-513537.html?cat=17
- http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution
- http://en.wikipedia.org/wiki/Katz_v._United_States
- http://en.wikipedia.org/wiki/Motor_vehicle_exception
I think that cell phone calls should be seen as private to the same extent that any land line phone calls should be considered private. As Bobby pointed out, cell phone calls are often overheard in public areas and could be seen as less private in this way; however, many cell phone calls are also made in the privacy of ones home given that many people today seem to be opting out of a land line phone and just possessing a cell phone. I can't imagine there would be a reasonable way to determine if one was using their phone at home or in public- any method would essentially amount to the government gps tracking everyone's whereabouts at a given time. If a cell phone conversation is heard in person by a government official rather than through a wire tap than I believe that is fair game, but I do think cell phone calls made in the privacy of your own home should demand a certain amount of privacy, and to distinguish between these and public calls would be an invasion of privacy in and of itself.
ReplyDeleteI like how Bobby has engaged the idea of context when considering if a cell-phone call should be considered private or public. However, I am in favor of all phone calls being considered "private" in respect to the government's ability to listen in on the calls. I realize those in proximity might be able to hear, but pure 100% privacy is nearly impossible to obtain unless you drive to a cave before making the call, and then you will probably not have service. Those in favor of the Patriot Act believe we must sacrifice more of our privacy in the 21st century for safety, and I question that logic. Ben Franklin said, "those willing to give up liberty for security deserve neither and will lose both." Interesting quote to consider from Franklin in today's era of social media.
ReplyDeleteThe more we desire to move our government into handling social affairs, as opposed to original intent of regulating commerce and national security, it is inevitable the 4th amendment's significance will continue to be questioned like Bobby seems to indicate. Facebook and Google are good examples of our direction regarding personal privacy - the more services we demand for free, the more we will need to compensate with personal data/privacy, etc.....
I think that cell phone calls should be considered private. Like others have pointed out most cell phone calls are made in the privacy of your own home and would there for be considered private. The government, either federal or local, should have reasonable cause to subpoena your phone records or tap your current calls. I don't think that the person who's phone is being tapped has to be notified that it was because that would defeat the whole purpose. Our lives are becoming less and less private with the expansion of social media and I think that the aspects of our lives that we can keep private we should try to. We have to find a balance between national security and our privacy. If the government feels that national security is at risk then they should have enough "reasonable cause" to get a warrant for a wiretap. There will always be a fine line between national security and our privacy but we have to draw the line somewhere and I think cell phones should be kept private.
ReplyDeleteI also think phone calls should be private. Even if you are talking on the phone in public, there is a difference when random strangers are listening to your call than when the government is listening. You would definitely say different things if you knew the government was listening. That is why I think phone calls should be considered private no matter where you are talking on the phone. I also find it strange that phone companies are not allowed to tell you that they disclose information to the government. Why would they want to? I would think that it would hurt their business. Also, why does it matter if you can just look on the internet to find out that they do. I think the government should have a warrant to listen to your phone conversations. This makes me wonder what the government is doing with their ability to listen to phone conversations. I also wonder exactly how much national security we are getting because the government can listen to our calls. If making them get a warrant would significantly impact our national security then maybe I would reconsider.
ReplyDeleteI, too, agree that phone calls should be private, even if made in public places. The fact remains that no matter where the call is taken, a reasonable expectation of privacy is still held by both participants in the conversation. Another point which I think must be considered is that fact that, unless the phone call is made in a public place on speakerphone, it is impossible for others to discern the true nature and context of the conversation. Without hearing all discusants party to a conversation, it is fairly easy to greatly misconstrue the content being spoken about. In such settings, it is easy to imagine that a conversation regarding the plot of a film could be misinterpretted by a bystander as regarding events, plans, and threats in reality. Thus, even if such phone calls are made in public settings, the impossibility of a bystander to really glean the true content and nature of the conversation without being able to hear the responses and prompts of all party to the conversation should be considered in the determination of the public or private nature of phone calls. Finally, as far as wiretapping goes, I do think that a warrant should be required. Although deemed lawful by the Patriot Act, the fact remains that the intrusion on privacy implied by such acts is essentially unconstitutional. Therefore, I don't believe such actions should be allowed, no matter what legislation dictates that they are.
ReplyDeleteAnother thing to consider in this discussion is the constitutionality of the Patriot Act. The Act was passed because of the September 11th terrorist attacks. It was a time of great fear and uncertainty regarding terrorist activities, and so the Act was passed to grant law enforcement agencies the powers that the government felt they needed in order to keep us safe (surveillance of phones for suspected terrorist activities, etc).
ReplyDeleteHowever, it is now 11 years after the fact, and any immediate threat has long since passed. I just wonder if an Act that was passed in regards to an immediate national security risk should still be in effect. Yes, sometimes we need to sacrifice some rights in the name of national security in times of war or turmoil, but when the war or turmoil is over, we get those rights back. I think the Patriot Act should fall under that same umbrella.
I think that like stated above, it highly depends on the situation and environment. My thought is that if a call is made in the privacy of one's home then it is private and should be treated as such. If the caller is in public the call is now public. It is no different than someone sneakily eavesdropping in public. I think that this would be an ideal situation but understand that that is not the case of our world. People need to be aware of what they are saying over the phone whether it's constitutionally protected or not.
ReplyDeleteI am a big advocate of privacy.I think privacy needs to be protected. In fact, I think privacy has become way too loose in our digital age. I think it should be required for the government to have a warrant to listen in on our phone conversations; however, I do think there are situations in which they shouldn't need a warrant i.e. they have, on factual basis, reasonable suspicion that a certain person may be a threat to security. Responding to the example of a phone conversation in public, I think it depends on the context. If a person decides to speak in an elevator full of people, then that person has decided to extend his/her sphere of privacy to include everyone on that elevator, in that moment, for that conversation. That does not mean that because the person is okay with those people hearing his/her conversation that this person is giving permission for anyone to hear the conversation. For example, the person may be okay with those around him hearing his conversation, but that doesn't mean he/she is okay with having his/her conversation recorded and listened to by the government (or anyone else for that matter). I (and probably many other people) limit what I do and do not say based on my "expectation of privacy" when I am in public. For example, there are some things I might say while talking on the phone in the presence of random people on the elevator that I would not say in other situations. So I think I have an expectation of privacy even in public areas, which expectation is that my conversation is only be listened to by those around me and not being listened to/recorded with high tec equipment in the hands of the government. I contend that, depending on the context, invasions of privacy can occur even in public settings. This is particularly interesting as it relates to Facebook, since one might think their expectation of privacy is that their privacy settings will be respected; however, apparently privacy settings mean very little when it comes to the internet.
ReplyDeleteEven though I don't participate in criminal activity I don't want my privacy invaded. I don't have anything to hide when talking on the phone (at least nothing from the government), but that doesn't mean I shouldn't care about my privacy rights. I think we need to protect and advocate our privacy rights, especially in this digital age where privacy is fading away. I don't think the medium used (i.e. internet, cell-phone, land line, e-mail) should change our rights to privacy.
Although I think that some limitations have to be imposed to internet speech, such as Facebook, where messages are technically "published", I do agree that there should be a reasonable expectation of privacy attached to speaking on the phone. Phone conversations are inherently between two parties, and the invasion of that communication privacy should only be acceptable with granted permission in the form of a warrant. While yes, many phone conversations can be seen as public given the settings in which they occur, the content should still be restricted to the parties directly involved. I do provide a provision however, in that the same rules attached to other forms of search should be applied. If someone is blatantly discussing any sort of illicit or illegal activity within reasonable earshot of a law enforcement officer, then I do believe they do have the right for further investigate without the need for a warrant. This idea falls under the same basic concept as plain-view. Overall however, I firmly believe that privacy rights should be stringently upheld, especially when it comes to telephone communications.
DeleteI think that people need to be more aware of what they're saying in public, but with that said they are still entitled to their privacy. I believe that cell phone conversations should be private, unless the government has legitimate reason to see them as a threat to national security. If a person decides to hold a cell phone conversation in public I feel like they surrender a part of their privacy, but to the people within hearing distance, not to the government.
ReplyDeleteTapping a phone and overhearing a conversation are two very different things.
ReplyDelete"the plain site doctrine" is another exception to the forth amendment in which: even though warrants must particularly describe the place to be searched, and the persons or things to be seized, if an officer trips over a dead body on his way to search the bedroom then that they don't have to pretend like they didn't see it even if they don't have a warrant for the hall way.
I a believe that the public has the right to private phone calls but if an officer or a citizen over hear an incriminating conversation, be it in pubic or private then that should be considered lawful evidence.
Well, great, it deleted my comment. Time to start again. I could care less about the monitoring of my phone calls since I have nothing to hide and doubt my personal matters are of any importance to the government. I can understand how some people are in positions where wire tapping could be abused (public officials, heads of companies)and the holding of a more sacred place for even cell phone conversations. I do not, however, believe cell phone conversations to be public, and believe a warrant is necessary to actually use the records in court. Ways to get a warrant would be the appearance of many "keywords" that warrant investigation for reasons of national security. Enough restrictions should be put on wire tapping by the government to prevent its abuse and misuse. Under these restrictions I think wire tapping is just fine even with the 4th amendment.
ReplyDeleteIt would be great if the government never had to listen in on calls and we could all have complete privacy on the phone. However, this is not the case. My argument over this matter is very simplistic. If by regularly listening in on suspicious phone conversations the FBI is able to find and detain dangerous criminals, then I give up my right to complete, exclusive privacy on the phone. I really don't care if someone from the FBI knows how my day went once a month, or how I thought the last episode of Adventure Time was super deep, as long as in the process society becomes is safer.
ReplyDelete