The United States Supreme Court is commonly supremely obtuse. Obtuseness has plagued the Court’s retrograde narrowing of the Fourth Amendment’s right to be let alone from government snooping. The first blunder arrived with the 1928 decision in Olmstead v. United States holding that wiretapping fell outside the ambit of the Fourth Amendment because the text—adopted in 1791—did not reference telephones yet to be invented by Alexander Graham Bell!
The absurdity of Olmstead persisted for 39 years until Katz v. United States (1967) held that the Amendment protected reasonable expectations of privacy including telephone communications. The Court, however, invariably seeks simple answers to complex questions to make judging easier. Thus, in 1976, the Court summoned into being the third-party doctrine in United States v. Miller. It held that information shared with any third-party, like checks written on bank accounts, automatically forfeit Fourth Amendment protection and can be seized indiscriminately by government on fishing expeditions. The Court preposterously assumed that sharing information with one person or business signaled complacency or acquiescence in sharing it with the entire world including law enforcement. The Court affirmed the Miller blunder in 1979 in Smith v. Maryland.
Then came the digital age and the inability to survive without sharing information with Internet providers. They have superseded the USPS as the primary means by which American communicate with one another. But while the contents of letters are protected by the Fourth Amendment, internet communications are not! That was the theory justifying the National Security Agency’s warrantless dragnet electronic surveillance of every “not-yet-guilty” American exposed by Edward Snowden. Neither are the features of your face captured by drone surveillance or street cameras protected by the Fourth Amendment as long as the third-party doctrine endures.
The doctrine suffered a tiny crack in Carpenter v. United States (2018) holding that cell-site location information fell within the Fourth Amendment despite being shared with the cell phone service provider. But during the ensuing 5 years, the Court has not widened the crack.
The right to privacy, which finds expression in the Fourth Amendment, was the spark of the American Revolution which repudiated British writs of assistance. William Pitt the Elder’s 1763 address to Parliament in opposition to a tax on cider electrified the American colonies: “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—all his forces dare not cross the threshold of the ruined tenement!”
The Supreme Court has obliterated the Fourth Amendment as the price of Empire and a Leviathan state. Congress has refused to step into the breach with privacy statutes terrified by exaggerated claims of national security and law enforcement.
The Fourth Amendment right to privacy is dead.