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Talking Points

Question: Can the Supreme Court's findings in Katz v. United States be applied to cell phone use in public places?

Katz

United States

1. Does the Fourth Amendment protect cell phone calls made in public from government surveillance?

Affirmative. Yes.

There need not be a physical intrusion into a tangible area in order to constitute a search. The Court already has recognized that certain "constitutionally protected areas" fall under the Fourth Amendment's protections. The trespass doctrine results in an overly literal reading of the Fourth Amendment. The objective of a wiretap is the same as a physical search -- to provide evidence that a crime has been committed. Therefore, the full protections of the Fourth Amendment should apply to wiretaps as well as searches.

Negative. No.

A search, by definition, cannot occur unless there is some physical intrusion into a tangible space. A house or an office can be searched because there are physical structures involved. Merely overhearing a conversation, however, does not involve any type of search. Wiretaps simply provide the technology to overhear conversations.

Although such eavesdropping may constitute an unacceptable form of social behavior if it were to be engaged in by private persons, this action may not be per se unacceptable for the government, especially when the government undertakes it as part of its Constitutional responsibility to protect the public safety. For this reason, this socially "unacceptable" behavior does not necessarily run afoul of the provisions of the Fourth Amendment.

2. Is there a “reasonable expectation of privacy” when cell phone calls are made in public?

Affirmative. Yes.

The Fourth Amendment does not draw a distinction between public and private areas. While common sense dictates that the police should not be required to ignore evidence of a crime that has been made public through an individual's own actions, even in a public area, people may wish to retain their privacy. These are areas in which people are said to have "a reasonable expectation of privacy."

For instance, people carry bags in public, but this does not give the police the right to search them at will. Why? It is understood that the contents of the bags are private. Barring a warrant or consent, this expectation of privacy entitles them to constitutional protection.

The same logic could be applied to a cell phone conversation. The contents of a conversation between two individuals is no less private. Simply because such a conversation happens in a public place - in a phone booth or on a cell phone - does not authorize the police, without either a warrant or consent, to listen to it and take action. In other words, regardless of whether or not the conversation was in a public area, the parties to the conversation retain "a reasonable expectation of privacy."

Negative. No.

Although one has an expectation of privacy in certain private spaces (which the Court has termed "constitutionally protected areas"), it is beyond reason to assume that what one voluntarily exposes to the public remains private. A public phone booth or a cell phone call made in a public place is just that - public. If Katz or any other persons wish to avail themselves of the full protections of the Fourth Amendment, they can do so by making a call from a private phone line in a private place. The moment one enters a public space, however, the expectation of privacy is gone. For instance, what if the police simply stood outside of the phone booth or stood within hearing distance of a cell phone conversation so that they were able to overhear a conversation? Surely this would be permissible.