In the 1920s, Roy Olmstead was the most successful and powerful bootlegger in Seattle. He ran an organization of over 50 employees that, during the prohibition, brought liquor from England to Canada in ocean freighters and then smuggled them into the US on a fleet of speedboats. As a former policeman, he operated without fear of the local constabulary, keeping the police and even the mayor of Seattle in his pay.
But in those days, violation of prohibition laws was a federal offence and the US government was determined to bring down the king of the Puget Sound bootleggers. Federal officers extensively and methodically wiretapped all the phones in Olmstead’s office and home and, over a period of five months, generated over 775 pages of typewritten notes of conversations had overheard during that period. They used this wiretap record to seize further evidence of his bootlegging and, eventually, to convince a jury to indict him and over 90 other people.
Olmstead challenged the use of this wiretap evidence, alleging that it violated his Fourth Amendment rights. The government countered by arguing that wiretapping was no different from listening at a door or window which was, in itself, not illegal. The matter went to the Supreme Court where, in a five to four judgement, the court held that since the act of wire-tapping did not involve entry into a house, it did not result in a violation of privacy and that consequently there had been no violation of the Fourth Amendment.
Despite this unhelpful decision, the case is still regarded as a landmark privacy judgement, largely because of the powerful dissenting opinion delivered by Justice Brandeis. As a young graduate from Harvard Law School, Louis Brandeis had co-authored a seminal article on the right to privacy. Now a judge of the Supreme Court, Brandeis’ dissent argued that a literal interpretation of the constitution would never work in a changing world. He pointed out that technology had created “subtler and more far-reaching means of invading privacy", making it possible for the government “by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet".
In a passage that is remarkably prescient of the technologies we are grappling with today, Brandeis observed that “…the progress of science in furnishing the government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions".
As prophetic as the opinion was in its foretelling of the way technology would affect personal privacy, to me, it is the concluding portion of the opinion that has the most relevance to our current times. In decrying the government’s attempt to argue that it should be able to use any means at its disposal to secure the prosecution of a criminal, Brandeis writes “…decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen…To declare that, in the administration of the criminal law, the end justifies the means—to declare that the government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face."
We are at a momentous time in the history of privacy jurisprudence in this country. The Justice Srikrishna Committee is likely, any time now, to submit its report on the shape of our proposed privacy law. Of the many recommendations it will doubtless make, I am keen to see how government action will be constrained by privacy considerations. The government wants exemptions on the grounds of national security and for the investigation of offences. I hope that in considering these requests, the committee will apply suitable restraints on how these exemptions can be invoked.
Regular readers of this column will know that I am an ardent advocate of the use of technology to deliver better social outcomes. I believe that if modern science offers us the means to ameliorate the circumstances of those around us, we are obliged to use it as best we can. That said, I am painfully aware of the harm that can result from its careless deployment. Just because the government has powerful resources to prevent the occurrence of a crime, they should never be blindly deployed without thought to their implications for civil liberties.
Any privacy law that we enact should apply to the government in much the same manner as it does to private corporations. As much as we fear the increasing influence of global corporations in our lives, we should equally be concerned about the ability of the government to use technology to intrude into our personal space. I hope that the Srikrishna Committee will engage with these issues, including provisions in the new law, that will hold the government appropriately accountable for actions that result in the violation of anyone’s personal privacy.
In the words of Justice Brandeis: “If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."
We must not let that happen.
Rahul Matthan is a partner at Trilegal and author of Privacy 3.0: Unlocking Our Data Drive Future. Ex Machina is a column on technology, law and everything in between. His Twitter handle is @matthan.
Comments are welcome at email@example.com