United States v. White (401 U.S. 745)/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

* The issue in this case is clouded and concealed by the very discussion of it in legalistic terms. What the ancients knew as 'eavesdropping,' we now call 'electronic surveillance'; but to equate the two is to treat man's first gunpowder on the same level as the nuclear bomb. Electronic surveillance is the greatest leveler of human privacy ever known. How most forms of it can be held 'reasonable' within the meaning of the Fourth Amendment is a mystery. To be sure, the Constitution and Bill of Rights are not to be read as covering only the technology known in the 18th century. Otherwise its concept of 'commerce' would be hopeless when it comes to the management of modern affairs. At the same time the concepts of privacy which the Founders enshrined in the Fourth Amendment vanish completely when we slavishly allow an all-powerful government, proclaiming law and order, efficiency, and other benign purposes, to penetrate all the walls and doors which men need to shield them from the pressures of a turbulent life around them and give them the health and strength to carry on.

That is why a 'strict construction' of the Fourth Amendment is necessary if every man's liberty and privacy are to be constitutionally honored.

When Franklin D. Roosevelt on May 21, 1940, authorized wiretapping in cases of 'fifth column' activities and sabotage and limited it 'insofar as possible to aliens,' he said that 'under ordinary and normal circumstances wire-tapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights.' See Appendix I to this dissent. Yet as Judge Ferguson said in United States v. Smith, D.C., 321 F.Supp. 424, 429:

'(T)he government seems to approach these dissident     domestic organizations in the same fashion as it deals with      unfriendly foreign powers. The government cannot act in this     manner when only domestic political organizations are      involved, even if those organizations espouse views which are      inconsistent with our present form of government. To do so is     to ride roughshod over numerous political freedoms which have      long received constitutional protection. The government can,     of course, investigate and prosecute criminal violations      whenever these organizations, or rather their individual      members, step over the line of political theory and general      advocacy and commit illegal acts.'

Today no one perhaps notices because only a small, obscure criminal is the victim. But every person is the victim, for the technology we exalt today is everyman's master. Any doubters should read Arthur R. Miller's The Assault on Privacy (1971). After describing the monitoring of conversations and their storage in data banks, Professor Miller goes on to describe 'human monitoring' which he calls the 'ultimate step in mechanical snooping'-a device for spotting unorthodox or aberrational behavior across a wide spectrum. 'Given the advancing state of both the remote sensing art and the capacity of computers to handle an uninterrupted and synoptic data flow, there seem to be no physical barriers left to shield us from intrusion.' Id., at 46.

When one reads what is going on in this area today, our judicial treatment of the subject seems as remote from reality as the well-known Baron Parke was remote from the social problems of his day. See Chapman, 'Big Brother' in the Justice Department, The Progressive, April 1971, p. 27.

We held in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, that wiretapping is a search and seizure within the meaning of the Fourth Amendment and therefore must meet its requirements, viz., there must be a prior showing of probable cause, the warrant authorizing the wiretap must particularly describe 'the place to be searched, and the persons or things to be seized,' and that it may not have the breadth, generality, and long life of the general warrant against which the Fourth Amendment was aimed.

In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, we held that an electronic device, used without trespass onto any given enclosure (there a telephone booth), was a search for which a Fourth Amendment warrant was needed. Mr. Justice Stewart, speaking for the Court, said: 'Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.' Id., at 359, 88 S.Ct., at 515.

As a result of Berger and of Katz, both wiretapping and electronic surveillance through a 'bug' or other device are now covered by the Fourth Amendment.

There were prior decisions representing an opposed view. In On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270, an undercover agent with a radio transmitter concealed on his person interviewed the defendant whose words were heard over a radio receiver by another agent down the street. The idea, discredited by Katz, that there was no violation of the Fourth Amendment because there was no trespass, was the core of the On Lee decision. Id., at 751-754, 72 S.Ct., at 970-972.

Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, was also pre-Berger and pre-Katz. The government agent there involved carried a pocket wire recorder which the Court said 'was not planted by means of an unlawful physical invasion of petitioner's premises under circumstances which would violate the Fourth Amendment.' Id., at 439, 83 S.Ct., at 1388.