BOX 3.1
Expansion of Fourth Amendment Protection and Technological Capabilities

In their early stages, important new communications technologies such as the telephone and electronic mail were not accorded the privacy protections that are now taken for granted. In each case, the application of Fourth Amendment protections was unsettled, so the legislative branch had to step in to provide some level of protection. When the telephone first came into use, law enforcement was able to conduct unfettered surveillance of private conversations because the U.S. Supreme Court ruled telephone calls to be beyond the protection of the Fourth Amendment. Though telephone callers never invited law enforcement officers to listen in on their calls, the Court held that Fourth Amendment protections only applied to intrusions on one’s property (either physical or real). As conversations had no property interest attached to them, they merited no privacy protection. Later, however, the Supreme Court reversed itself and declared that “the Fourth Amendment protects people, not places.”¹

Early electronic mail systems also lacked clear legal protection. To some, the fact that an e-mail message passed through the hands of third parties (Internet service providers or other operators of electronic mail systems) meant that the sender and the recipient had forfeited their privacy rights by handing over the message to others. At the urging of the nascent electronic mail industry and privacy advocates, however, Congress extended privacy protection to e-mail and set clear rules governing law enforcement access. These rules are now in some flux owing to the passage of the USA PATRIOT Act of 2001 and uncertainty about how it will be applied and enforced.

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¹See Katz v. United States, 389 U.S. 347 (1967), which states “Because the Fourth Amendment protects people rather than places, its reach cannot turn on the presence or absence of a physical intrusion into any given enclosure. The ‘trespass’ doctrine of Olmstead v. United States, 277 U.S. 438, and Goldman v. United States, 316 U.S. 129, is no longer controlling.” Available online at <http://laws.findlaw.com/us/389/347.html>.