So far we have discussed privacy protections against invasions by private actors. We turn now to invasions by the government. When the government is the snoop, then the protections of the Fourth Amendment kick in.
The text of the Fourth Amendment has remained unchanged since it was ratified in 1791; but the protections it has given have quite dramatically changed. To read your mail, or search your house, the police need a warrant. What about to tap your phone? The first time the Supreme Court considered the question (in 1928), the Court said no: Because constitutional protections had originally been understood to protect only against "physical invasions" by the police, the constitution did not protect against wire-tapping: the police could wire-tap without physically invading the property of the suspect, wire-tapping was not protected by the constitution. (The case deciding this was Olmstead v. United States).
This didn't sit right with most people. Justice Brandeis, dissenting from the decision, gave a sense of just why: The constitution was written for an age when there were no telephones, or telegraphs. The framers couldn't have imagined these technologies. But we can see from what they did just what kind of values they were trying to protect. And so what the Court should do, Brandeis argued, was *update* the constitution so that it protected the same sort of values now that it protected then. The protections the framers gave us in 1791 must be *translated* to equivalent protections today.
The updating that Brandeis argued for is something different from the concern people have that the judges will make the constitution whatever they want it to be. This is updating to account for changes in technology - something that, in the context of the 4th Amendment, justices from Brandeis to Scalia have done.
authors:
| Larry Lessig | David Post | Eugene Volokh |
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