Sunday, February 12, 2006


Almost forty years ago, in Katz v. U.S., 389 U.S. 347 (1967), the U.S. Supreme Court held that it was a violation of the Fourth Amendment's ban on "unreasonable" searches and seizures for law enforcement officers to wiretap a telephone call.

In Katz, the FBI put a wiretap device on the outside of a phone booth, knowing Charles Katz, a suspected bookie, would use the booth to make calls concerning illegal bets. Until 1967, it was not considered a "search" for officers to do this; the U.S. Supreme Court had held in 1928 that the FBI did not violate the Fourth Amendment by using a wiretap on phone lines outside a home to eavesdrop on a telephone call being made from inside the home. The result of the Court's 1928 decision was that officers did not need a warrant to wiretap telephone conversations.

The Katz Court rejected this notion, holding that it is a search to wiretap a telephone call when the callers have taken steps to ensure their conversation is "private." The Court found that Katz had done this when he entered the phone booth and closed the door behind him. So, the rule that comes from the Katz case is that it is a "search" for law enforcement officers to violate a "reasonable expectation of privacy" by using technology or by more traditional means, such as kicking down the door to someone's apartment and entering to "look around." A "reasonable expectation of privacy" exists when (i) I think something (a place, an activity) is private and (ii) society agrees that it is, in fact, private. The Katz Court noted, however, that whatever one "knowingly" exposes to public view, "even in his own home or office," is "not a subject of Fourth Amendment protection.

This brings us to something new: cartapping.

In 2003, the U.S. Court of Appeals for the Ninth Circuit issued a decision, In the Matter of the Application of the United States for an Order Authorizing the Roving Interception of Oral Communications, in case # 02-15635, which was an appeal from the U.S. District Court for the District of Nevada. The issue in the case was whether the FBI (again) could obtain a court order compelling a car manufacturer to use technology installed in one of its automobiles to let FBI agents eavesdrop on conversations in the car.

The opinion carefully does not identify the car manufacturer, though it cites BMW and Cadillac as cars that have such technology installed in them. The technology -- which the opinion calls "the System" -- is becoming increasingly common: on-board telecommunications systems that "assist drivers in activities from the mundane -- such as navigating an unfamiliar neighborhood or finding a nearby Chinese restaurant -- to the more vital -- such as responding to emergencies or obtaining roadside assistance." In the Matter of the Application, supra. As the opinion notes, these systems rely on a combination of Global Positioning System technology and cellular phone connections.

The System installed in the vehicle at issue in this case allowed the manufacturer to open a cellular connection and listen in on conversations held in the car. (According to the opinion, the purpose of this feature of the System was to let the manufacturer assist police in locating stolen vehicles; the rather peculiar assumption seems to have been that vehicles would be stolen by two or more thieves, who would discuss the theft and/or their whereabouts as they fled the scene of their crime.)

Anyway, the FBI figured out that the System could be used to eavesdrop on conversations being held in a vehicle owned by what we might call "a person of interest." FBI agents got the district court to order the manufacturer to cooperate by opening the cellular connection and letting FBI agents use it to overhear what was said in the vehicle. The manufacturer complied with the first order, challenged subsequent orders unsuccessfully in the district court and so complied with them. The manufacturer appealed the district court's rulings, and the Ninth Circuit sided with the company.

The Ninth Circuit based its holding on a technical issue that arises under the federal statutory scheme that implements the Katz decision. Known as Title III, this statutory scheme requires law enforcement officers to obtain a Title III warrant before they intercept telephone or other communications. The statutory scheme establishes a Fourth Amendment-plus standard for obtaining such orders. This statutory scheme allows courts to order private parties -- such as a telephone company -- to assist law enforcement in intercepting calls and other communications, but it specifically provides that such assistance cannot be required when it would substantially interfere with the private entity's ability to provide the services it has contracted for. The Ninth Circuit found that was true here; when the cellular connection was open, it essentially shut down the System's other functions.

That is not what I find interesting about the case. What I find interesting is whether, given the increasing proliferation of systems like this, we still have a reasonable expectation of privacy in our cars.

For many decades, in real-life and in cinema, the car was the place people went to when they wanted to talk without fear of being overheard. And until recently, anyway, people would have had a reasonable expectation of privacy, under Katz, in what they said in their cars. People believed the interior of their car was, like a telephone booth, a private place for conversations; others could see inside, but they could not hear what was said inside, at least not if the windows were closed and the people inside spoke softly. And since everyone believed this, it was an expectation society regarded as reasonable.

But what about now? Remember, the Katz Court said the Fourth Amendment does not protect what we "knowingly" expose to public view or public hearing. This is known as the assumption of risk principle: If I do not take steps to prevent my conversations from being overheard, then I have assumed the risk they will be overheard and I have no Fourth Amendment expectation of privacy in them.

If I buy a car, knowing it has a version of the System installed in it, and knowing that the System can be used to listen in on what is said in the car, haven't I assumed the risk that someone will listen in? If so, I have lost any expectation of privacy in the car under Katz.

I threw this issue out in my cybercrimes seminar last week. One student's husband has the Sytem in his car; she said that the operators often open up a connection essentially to "check in" with the occupants, asking them if they are "all right," for example. Based on this, she says she thinks the car is "about as private as a park bench."

Another student, whose car also has a version of the System but who does not have operators checking in to see how she is doing, says she believes the presence of the System does not alter our Fourth Amendment expectation of privacy in vehicles at all. She bases her view on the premise that she has to initiate contact with the operators of the System in her vehicle (and is charged every time she does so). She therefore concludes that it would be an illegitimate use of the System for those who monitor the technology in her vehicle to listen in on conversations held in the car.

I have no conclusion on this one, just thoughts.

You can find the opinions cited above in two places: (i) both are on Findlaw and (ii) the Ninth Circuit's opinion is on the Ninth Circuit's site.

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