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Fourth Amendment: Wiretaps and Cell Phone Surveillance

This activity explores the Supreme Court decision in Katz v. United States. Katz deals with wiretapping as it is used to provide evidence of a crime and can stimulate discussion today about domestic surveillance and even the use of cell phones in public places.

The Supreme Court, for the most part, has not addressed the issue of whether or not the Katz standard is applicable to wiretaps undertaken for national security purposes, as opposed to criminal prosecution. Starting with these resources, students can discuss how they would argue Katz if a wiretapped call were made from a cell phone instead of a phone booth.

About These Resources

How to Use These Resources

This activity is a modified Oxford style debate.

  1. To get started, have participants read the Katz v. United States facts and case summary.
  2. Assign student attorneys to the issues listed in the talking points. They are suggested points– not a script–for the debate. Student attorneys are encouraged to add their own arguments.
  3. All other students are jurors who deliberate (and may refer to these talking points) during the open floor debate. They debate among themselves in the large group or smaller groups and come to a verdict after the attorneys present closing arguments.

Background: Current State of the Katz Decision

Although Justice Harlan proposed his two-pronged test in order to synthesize the majority holding so that it could be used in deciding future cases, it too has been the subject of much interpretation and debate. For instance, in the case of Ciallo v. California (1986), the Supreme Court decided that society was not prepared to recognize a privacy right—to grow a backyard crop of marijuana—that would have prohibited police from using a low-flying surveillance airplane to observe someone's garden without first getting a warrant.

Likewise, in the case of Smith v. Maryland (1979), the Court said that society was not prepared to extend privacy rights to bank customers regarding their bank statements. The court said the police did not have to get a search warrant before obtaining a customer's bank statements directly from the bank. The court decided that although the statements are about customers, banks—not customers—technically own the statements. However, after this decision, Congress enacted legislation requiring that police produce a search warrant to obtain a bank customer's account records.

Finally, the Katz decision deals only with wiretapping insofar as it is used to provide evidence of a crime. The Supreme Court has, for the most part, not addressed the issue of whether or not the Katz standard is applicable to wiretaps that are undertaken for national security, as opposed to criminal prosecution, purposes.