The fundamental question for examining any possible civil liberties violations for electronic surveillance, technology monitoring, and dog sniffs is whether a prohibited search occurred under the Fourth Amendment. A prohibited search occurs when a person has a subjective expectation of privacy that society will objectively recognize and that expectation of privacy is violated. The analysis is on the person because as the U.S. Supreme Court stated in United States v. Katz, ‘‘the Fourth Amendment protects people not places.’’ The first part of the analysis is whether the person has exhibited a subjective expectation of privacy by looking at the location and what acts were taken to protect privacy. The analysis concludes with whether society will recognize that expectation as objectively reasonable. Accordingly, the use of electronic surveillance, technology monitoring, and dog sniffs hinges on whether there was an expectation of privacy for the person, object, or place being searched and that search violated an expectation of privacy. This civil liberty interest against unreasonable searches is protected by the exclusionary rule, which prohibits the use of evidence obtained in violation of the Fourth Amendment. However, if the government obtains a valid probable cause warrant, then the searches would not fall under the Fourth Amendment prohibition.
Electronic surveillance by the government is regulated by the Electronic Communications Privacy Act (ECPA) and the Fourth Amendment. The ECPA is a broad statute that regulates government regarding the interception and attempted interception of wire, oral, or electronic communications, access to electronic communication service, and remote computing services, and pen register surveillance. The Fourth Amendment restrictions are whether the person has a subjective expectation of privacy that society is objectively willing to recognize. However, the Foreign Intelligence Surveillance Act (FISA) has exceptions to the surveillance requirements under the ECPA for national security matters.
The ECPA has three main sections that cover what the government can and cannot do with regard to obtaining electronic communications, information stored on computers, and pen register surveillance. The ECPA also covers actions by individuals and nongovernmental entities and has civil and criminal penalties for unlawful access. However, for civil liberties purposes, only government restrictions are covered below.
The first section covering the interception of wire, oral, and electronic communication sets forth the rules that the government must abide by making the application for an interception and the restrictions on the use of the information that is obtained. This section was originally introduced as Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (also known as Title III). This section covers the actual content of wire and electronic communication, and the ECPA sets forth the metes and bounds of when and how the interception can occur. The ECPA restricts the use of the information intercepted when the interception does not comply with requirements of the ECPA.
The second section covers the processes for the government to obtain access to electronic communication services and remote computing services and the information contained by the services. Because different types of information are deemed to have varying privacy interests, the ECPA has five mechanisms from which the government can obtain information from the services. These five mechanisms include subpoenas, subpoenas with notice, court order, court order with notice, and a search warrant, which are tailored in light of the privacy interests of the information being requested. Even if the information regulated under this section is obtained without complying with the requirements of the ECPA, the ECPA does not explicitly restrict the use of this information as evidence. However, the information could be restricted under the exclusionary rule if it is obtained in violation of the Fourth Amendment.
The third section covers processes for the government to conduct pen register surveillance and the information obtained therein (also known as the ‘‘pen/trap statute’’). This section covers the address and other noncontent information for wire and electronic communication. Information obtained outside of the requirements of the ECPA is not explicitly disallowed as evidence unless the method of obtaining the information violates the Fourth Amendment and is thus excluded under the exclusionary rule.
The first question for electronic surveillance that does not fall under the ECPA is whether the surveillance is a search. If the surveillance is not a search, then there cannot be a Fourth Amendment violation for the surveillance. The surveillance is a search under the Fourth Amendment when the person has a subjective expectation of privacy that society will objectively recognize and that privacy is violated by the search. Generally any information that a person puts out into public view falls outside of the purview of the expectation of privacy that society will objectively recognize.
For example, the use of a pen register to record phone numbers dialed from a telephone is not a search. Even if a person thinks that the phone numbers dialed are private, that expectation is not reasonable because the telephone company routinely monitors and records the numbers dialed for troubleshooting and billing purposes. Accordingly, since a reasonable person knows that the numbers dialed are turned over to the telephone company, then there is no reasonable expectation of privacy for the dialed numbers and therefore no search has occurred when the government obtains those numbers. This lack of privacy would most likely be extended to other address types of information such as email addresses and website addresses in which the traffic has been exposed to third parties but not necessarily the content of the traffic. However, as noted above pen register surveillance is now regulated by the ECPA but a person still has a lowered expectation of privacy when information is turned over to a third party.
The lack of privacy for the information turned over to third parties extends to most types of information that are obtained by electronic surveillance that third parties would have or which do not fall under the ECPA. There is a lowered expectation of privacy when the communication is knowingly exposed to a third party. For example, when an undercover agent or informant has a microphone from which a conversation is recorded, there is no reasonable expectation of privacy because the conversation has been exposed to the third party. In these situations, no search has occurred because the people have exposed their conversations to the person who has the microphone.
Other situations where the objective expectation of privacy is too minimal to be considered a search under the Fourth Amendment include ham radio communication and citizen’s band radio. However, a person having a conversation over a cordless phone would in general have a reasonable expectation of privacy that society would recognize because although it is conceivable that the conversation could be overheard, it is reasonable for a person to expect that the conversation is private. This expectation of privacy extends to a person having a conversation in a phone booth, a hotel room, and other locations when the person has taken the steps to exclude others from the conversation, and society recognizes those exclusionary steps as objectively reasonable. Accordingly, the key factor in the determination is not simply whether the communication can be intercepted but whether it is reasonable for the communication to be intercepted by another.
Thus, if the electronic surveillance falls under the ECPA, then the government has to abide by the restrictions in the ECPA. However, even if the government does not abide by the restrictions in the ECPA, it does not necessarily violate the person’s Fourth Amendment rights. Generally, electronic surveillance is not a search under the Fourth Amendment unless the person has a subjective expectation of privacy that society is objectively willing to recognize and that expectation of privacy is violated. However, when the government has a warrant issued with probable cause, then the government can in general conduct the search by the means specified in the warrant.
The issue of whether technology monitoring by the government is a search hinges on whether the monitoring invades on a person’s subjective expectation of privacy that society objectively recognizes. If there is no invasion of privacy, then no search under the Fourth Amendment has occurred. However, technology that provides information about a physically protected area that could not be searched without a warrant constitutes an unreasonable search when the technology is not in general public use. Where the government is using technology that is not in general public use such as thermal imaging devices, then the government must obtain a search warrant to utilize the technology.
In general, when a person knowingly exposes his or her activity to the public or third parties, then that activity can be monitored by the government through public or third party means. For example, the government can use global positioning system (GPS) or radio beacons attached to the exterior of a car to track the location of packages or containers that a person receives from a third party or common carrier. The tracking beacon is simply a way for the government to monitor the location of the package that the government could otherwise do by visual tracking methods. The tracking beacon is just an extension of the allowable methods by which a person can be tracked.
Technology monitoring also includes closed caption television monitoring (CCTV), audio monitoring, and infrared monitoring. CCTV monitoring is widespread in various countries throughout the world in airports, trains, subways, on public streets, police stations, and other public places. Generally, these types of surveillance that occur in public places are not searches because people are knowingly exposing their activities to the public view. However, technology monitoring using CCTV, audio monitoring, and infrared monitoring that occur outside of public view such as in a person’s private home without a valid search warrant would violate a person’s reasonable expectation of privacy. However, if the person invites a third party into the home, then the monitoring that the third party brings into the home is reasonable because the person invited the third party into the home and exposed the internal workings of the home to the third party. Accordingly, CCTV, audio, and infrared monitoring have to work within the same confines as other types of technology monitoring in that they violate a person’s Fourth Amendment rights when the person has a reasonable expectation of privacy that society objectively recognizes.
The government can also monitor an employee’s activity with the employer’s consent when the employee has no reasonable expectation of privacy regarding whether the employer can monitor work activities. However, to dispel any expectation of privacy, the employer should disclose to the employee that the employer can and will monitor the employee’s activities. This monitoring can also extend to government employees as long as the employees are aware that their expectation of privacy is lowered because the government is monitoring. The issue of whether the monitoring is a search hinges on whether the employee is aware of the monitoring and thus has a lowered expectation of privacy in regards to the activity or location being monitored.
Accordingly, the issue of whether technology monitoring is a search under the Fourth Amendment hinges on whether the person being monitored has a subjective expectation of privacy that society objectively recognizes. In general, people in a public place have a limited expectation of privacy unless they have taken the steps necessary to shield their activities from public view. In addition, the monitoring must not intrude into places that are protected places such as the interior of a person’s home without a search warrant that was issued with probable cause. Thus, the government can use different methods of technology monitoring without a warrant as long as the means do not intrude on a person’s reasonable expectation of privacy that society objectively recognizes and as long as the technology means does not intrude on a protected area with technology that is not commonly available by the public.
Dog or canine sniffs do not in general compromise any legitimate expectation of privacy as long as the dog and the officer are legally allowed to be where the sniff occurs. The key issue for any Fourth Amendment violations involving a dog sniff is whether the dog is in a place that it can legally be since a dog sniff itself does not intrude on areas that are hidden from public view. A person does not have a reasonable expectation of privacy in an odor radiating from an object because the odor has been put into the public view by its release from the object. Additionally, dog sniffs do not show the interior of protected areas but simply indicate the presence or absence of contraband items. Accordingly, as long as the dog is in a location that it can legally be then the sniff is not a search under the Fourth Amendment. However, if the dog and the handler are not in a location where they legally can be, then the dog sniff is a search under the Fourth Amendment because the presence of the dog and its handler is itself a search.
Even if the dog sniff is not a search, the seizure that leads to the dog sniff may become unreasonable under the Fourth Amendment if the person or items have been unlawfully detained by the police. The seizure of an automobile at a checkpoint does not turn the subsequent sniff by the dog into a search as long as the stop is lawful in nature and is not extended beyond what is reasonable. The reasonableness question for detaining people or items hinges on whether under the Fourth Amendment the government has reasonable suspicion for detaining the people or items for the dog sniff and has specific and articulable facts for the suspicion. In addition, the government must work diligently to obtain a trained dog for the sniff when people or items are seized under reasonable suspicion. However, when the people have placed themselves or items into the public view and the odor is radiating to the public place, then no reasonable suspicion is needed because the dog sniff of the radiating smell is not a search and the person or items have not been seized. The government can utilize a dog sniff for checked luggage on planes, trains, and busses, shipped packages, storage lockers, trailers, and cars, as long as the items have not been seized or the seizure of those items is reasonable.
In general, a dog sniff on items in public view is not a search. However, the sniff can become an unreasonable search under the Fourth Amendment if the person or items to be sniffed are detained beyond a reasonable time or without reasonable suspicion. Accordingly, a dog sniff is not a search under the Fourth Amendment because the privacy interest of odor radiating from a person or item is not a reasonable privacy interest protected by the Fourth Amendment.
LINDA F. HARRISON
References and Further Reading
USA Patriot Act of 2001, 115 Stat. 272.
Cases and Statutes Cited
See also Administrative Searches and Seizures; Airport Searches; Anonymity in Online Communication; Automobile Searches; Checkpoints (roadblocks); Invasion of Privacy and Free Speech; 9/11 and the War on Terrorism; Plain View; War on Drugs; Warrantless Searches; Wiretapping Laws