Midterm Freedom, Privacy and technology
Freedom, Privacy and Tech./Berlin%20two%20concepts%20of%20liberty.pdf
1
TWO CONCEPTS OF LIBERTY, Isaiah Berlin Berlin, I. (1958) “Two Concepts of Liberty.” In Isaiah Berlin (1969) Four Essays on Liberty. Oxford: Oxford University Press.
If men never disagreed about the ends of life, if our ancestors had remained undisturbed in the Garden of Eden, the studies to which the Chichele Chair of Social and Political Theory is dedicated could scarcely have been conceived.1 For these studies spring from, and thrive on, discord. Someone may question this on the ground that even in a society of saintly anarchists, where no conflicts about ultimate purposes can take place, political problems, for example constitutional or legislative issues, might still arise. But this objection rests on a mistake. Where ends are agreed, the only questions left are those of means, and these are not political but technical, that is to say, capable of being settled by experts or machines, like arguments between engineers or doctors. That is why those who put their faith in some immense, world-transforming phenomenon, like the final triumph of reason or the proletarian revolution, must believe that all political and moral problems can thereby be turned into technological ones. That is the meaning of Engels' famous phrase (paraphrasing Saint-Simon) about 'replacing the government of persons by the administration of things',2 and the Marxist prophecies about the withering away of the State and the beginning of the true history of humanity. This outlook is called Utopian by those for whom speculation about this condition of perfect social harmony is the play of idle fancy. Nevertheless, a visitor from Mars to any British - or American -university today might perhaps be forgiven if he sustained the impression that its members lived in something very like this innocent and idyllic state, for all the serious attention that is paid to fundamental problems of politics by professional philosophers.
Yet this is both surprising and dangerous. Surprising because there has, perhaps, been no time in modern history when so large a number of human beings, in both the East and the West, have had their notions, and indeed their lives, so deeply altered, and in some cases violently upset, by fanatically held social and political doctrines. Dangerous, because when ideas are neglected by those who ought to attend to them - that is to say, those who have been trained to think critically about ideas - they sometimes acquire an unchecked momentum and an irresistible power over multitudes of men that may grow too violent to be affected by rational criticism. Over a hundred years ago, the German poet Heine warned the French not to underestimate the power of ideas: philosophical concepts nurtured in the stillness of a professor's study could destroy a civilization. He spoke of Kant's Critique of Pure Reason as the sword with which German deism had been decapitated, and described the works of Rousseau as the blood-stained weapon which, in the hands of Robespierre, had destroyed the old regime; and prophesied that the romantic faith of Fichte and Schelling would one day be turned, with terrible effect, by their fanatical German followers, against the liberal culture of the West. The facts have not wholly belied this prediction; but if professors can truly wield this fatal power, may it not be that only other professors, or, at least, other thinkers (and not governments or Congressional committees), can alone disarm them?
Our philosophers seem oddly unaware of these devastating effects of their activities. It may be that, intoxicated by their magnificent achievements in more abstract realms, the best among them look with disdain upon a field in which radical discoveries are less likely to be made, and talent for minute analysis is less likely to be rewarded. Yet, despite every effort to separate them, conducted 1 This essay is based on an Inaugural Lecture delivered in 1958. 2 Engels in Anti-Diihring (1877-8): Karl Marx, Friedrich Engels, Werke (Berlin 1965-83), vol.19, p. 195. Cf. ‘Lettres de Henri de Saint-Simone à un américain’, eighth letter, in L’industrie (1817), vol. 1: pp. 182-91 in Oeuvres.
2
by a blind scholastic pedantry, politics has remained indissolubly intertwined with every other form of philosophical enquiry. To neglect the field of political thought, because its unstable subject- matter, with its blurred edges, is not to be caught by the fixed concepts, abstract models and fine instruments suitable to logic or to linguistic analysis - to demand a unity of method in philosophy, and reject whatever the method cannot successfully manage - is merely to allow oneself to remain at the mercy of primitive and uncriticised political beliefs. It is only a very vulgar historical materialism that denies the power of ideas, and says that ideals are mere material interests in disguise. It may be that, without the pressure of social forces, political ideas are stillborn: what is certain is that these forces, unless they clothe themselves in ideas, remain blind and undirected.
Political theory is a branch of moral philosophy, which starts from the discovery, or application, of moral notions in the sphere of political relations. I do not mean, as I think some Idealist philosophers may have believed, that all historical movements or conflicts between human beings are reducible to movements or conflicts of ideas or spiritual forces, nor even that they are effects (or aspects) of them. But I do mean that to understand such movements or conflicts is, above all, to understand the ideas or attitudes to life involved in them, which alone make such movements a part of human history, and not mere natural events. Political words and notions and acts are not intelligible save in the context of the issues that divide the men who use them. Consequently our own attitudes and activities are likely to remain obscure to us, unless we understand the dominant issues of our own world. The greatest of these is the open war that is being fought between two systems of ideas which return different and conflicting answers to what has long been the central question of politics - the question of obedience and coercion. 'Why should I (or anyone) obey anyone else?' 'Why should I not live as I like?' 'Must I obey?' 'If I disobey, may I be coerced?' 'By whom, and to what degree, and in the name of what, and for the sake of what?'
Upon the answers to the question of the permissible limits of coercion opposed views are held in the world today, each claiming the allegiance of very large numbers of men. It seems to me, therefore, that any aspect of this issue is worthy of examination.
1
To coerce a man is to deprive him of freedom - freedom from what? Almost every moralist in human history has praised freedom. Like happiness and goodness, like nature and reality, it is a term whose meaning is so porous that there is little interpretation that it seems able to resist. I do not propose to discuss either the history of this protean word or the more than two hundred senses of it recorded by historians of ideas. I propose to examine no more than two of these senses - but they are central ones, with a great deal of human history behind them, and, I dare say, still to come. The first of these political senses of freedom or liberty (I shall use both words to mean the same), which (following much precedent) I shall call the 'negative' sense, is involved in the answer to the question 'What is the area within which the subject - a person or group of persons - is or should be left to do or be what he is able to do or be, without interference by other persons?' The second, which I shall call the 'positive' sense, is involved in the answer to the question 'What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?' The two questions are clearly different, even though the answers to them may overlap.
The notion of negative freedom.
3
I am normally said to be free to the degree to which no man or body of men interferes with my activity. Political liberty in this sense is simply the area within which a man can act unobstructed by others. If I am prevented by others from doing what I could otherwise do, I am to that degree unfree; and if this area is contracted by other men beyond a certain minimum, I can be described as being coerced, or, it may be, enslaved. Coercion is not, however, a term that covers every form of inability. If I say that I am unable to jump more than ten feet in the air, or cannot read because I am blind, or cannot understand the darker pages of Hegel, it would be eccentric to say that I am to that degree enslaved or coerced. Coercion implies the deliberate interference of other human beings within the area in which I could otherwise act. You lack political liberty or freedom only if you are prevented from attaining a goal by human beings.3 Mere incapacity to attain a goal is not lack of political freedom.4 This is brought out by the use of such modern expressions as 'economic freedom' and its counterpart, 'economic slavery'. It is argued, very plausibly, that if a man is too poor to afford something on which there is no legal ban - a loaf of bread, a journey round the world, recourse to the law courts - he is as little free to have it as he would be if it were forbidden him by law. If my poverty were a kind of disease which prevented me from buying bread, or paying for the journey round the world or getting my case heard, as lameness prevents me from running, this inability would not naturally be described as a lack of freedom, least of all political freedom. It is only because I believe that my inability to get a given thing is due to the fact that other human beings have made arrangements whereby I am, whereas others are not, prevented from having enough money with which to pay for it, that I think myself a victim of coercion or slavery. In other words, this use of the term depends on a particular social and economic theory about the causes of my poverty or weakness. If my lack of material means is due to my lack of mental or physical capacity, then I begin to speak of being deprived of freedom (and not simply about poverty) only if I accept the theory.5 If, in addition, I believe that I am being kept in want by a specific arrangement which I consider unjust or unfair, I speak of economic slavery or oppression. The nature of things does not madden us, only ill will does, said Rousseau.6 The criterion of oppression is the part that I believe to be played by other human beings, directly or indirectly, with or without the intention of doing so, in frustrating my wishes. By being free in this sense I mean not being interfered with by others. The wider the area of non-interference the wider my freedom.
This is what the classical English political philosophers meant when they used this word.7 They disagreed about how wide the area could or should be. They supposed that it could not, as things were, be unlimited, because if it were, it would entail a state in which all men could boundlessly interfere with all other men; and this kind of 'natural' freedom would lead to social chaos in which men's minimum needs would not be satisfied; or else the liberties of the weak would be suppressed by the strong. Because they perceived that human purposes and activities do not automatically harmonize with one another, and because (whatever their official doctrines) they put 3 I do not, of course, mean to imply the truth of the converse. 4 Helvétius made this point very clearly: 'The free man is the man who is not in irons, not imprisoned in a gaol, nor terrorized like a slave by the fear of punishment.’ It is not lack of freedom not to fly like an eagle or swim like a whale De l’esprit, first discourse, chapter 4. 5 The Marxist conception of social laws is, of course, the best-known version of this theory, but it forms a large element in some Christian and utilitarian, and all socialist, doctrines. 6 Emile, book 2: p. 320 in Oeuvres completes, ed. Bernard Gagnebin and others (Paris, 1959- ), vol. 4. 7 'A free man', said Hobbes, 'is he that ... is not hindered to do what he has a will to.' Leviathan, chapter 21: p. 146 in Richard Tuck's edition (Cambridge, 1991) Law always a fetter, even if it protects you from being bound in chains that are heavier than those of the law, say some more repressive law or custom, or arbitrary despotism or chaos. Bentham says much the same.
4
high value on other goals, such as justice, or happiness, or culture, or security, or varying degrees of equality, they were prepared to curtail freedom in the interests of other values and, indeed, of freedom itself. For, without this, it was impossible to create the kind of association that they thought desirable. Consequently, it is assumed by these thinkers that the area of men's free action must be limited by law. But equally it is assumed, especially by such libertarians as Locke and Mill in England, and Constant and Tocqueville in France, that there ought to exist a certain minimum area of personal freedom which must on no account be violated; for if it is overstepped, the individual will find himself in an area too narrow for even that minimum development of his natural faculties which alone makes it possible to pursue, and even to conceive, the various ends which men hold good or right or sacred. It follows that a frontier must be drawn between the area of private life and that of public authority. Where it is to be drawn is a matter of argument, indeed of haggling. Men are largely interdependent, and no man's activity is so completely private as never to obstruct the lives of others in any way. 'Freedom for the pike is death for the minnows';8 the liberty of some must depend on the restraint of others. Freedom for an Oxford don, others have been known to add, is a very different thing from freedom for an Egyptian peasant.
This proposition derives its force from something that is both true and important, but the phrase itself remains a piece of political claptrap. It is true that to offer political rights, or safeguards against intervention by the State, to men who are half-naked, illiterate, underfed and diseased is to mock their condition; they need medical help or education before they can understand, or make use of, an increase in their freedom. What is freedom to those who cannot make use of it? Without adequate conditions for the use of freedom, what is the value of freedom? First things come first: there are situations in which - to use a saying satirically attributed to the nihilists by Dostoevsky - boots are superior to Pushkin; individual freedom is not everyone's primary need. For freedom is not the mere absence of frustration of whatever kind; this would inflate the meaning of the word until it meant too much or too little. The Egyptian peasant needs clothes or medicine before, and more than, personal liberty, but the minimum freedom that he needs today, and the greater degree of freedom that he may need tomorrow, is not some species of freedom peculiar to him, but identical with that of professors, artists and millionaires.
What troubles the consciences of Western liberals is, I think, the belief, not that the freedom that men seek differs according to their social or economic conditions, but that the minority who possess it have gained it by exploiting, or, at least, averting their gaze from, the vast majority who do not. They believe, with good reason, that if individual liberty is an ultimate end for human beings, none should be deprived of it by others; least of all that some should enjoy it at the expense of others. Equality of liberty; not to treat others as I should not wish them to treat me; repayment of my debt to those who alone have made possible my liberty or prosperity or enlightenment; justice, in its simplest and most universal sense - these are the foundations of liberal morality. Liberty is not the only goal of men. I can, like the Russian critic Belinsky, say that if others are to be deprived of it - if my brothers are to remain in poverty, squalor and chains - then I do not want it for myself, I reject it with both hands and infinitely prefer to share their fate. But nothing is gained by a confusion of terms. To avoid glaring inequality or widespread misery I am ready to sacrifice some, or all, of my freedom: I may do so willingly and freely; but it is freedom that I am giving up for the sake of justice or equality or the love of my fellow men. I should be guilt-stricken, and rightly so, if I were not, in some circumstances, ready to make this sacrifice. But a sacrifice is not an increase in what is being sacrificed, namely freedom, however great the moral need or the compensation for it.
8 R.H. Tawney, Equality (1931), 3d ed. (London), 1938), chapter 5, section 2, ‘Equality and Liberty’, p.208 (not in previous editions).
5
Everything is what it is: liberty is liberty, not equality or fairness or justice or culture, or human happiness or a quiet conscience. If the liberty of myself or my class or nation depends on the misery of a number of other human beings, the system which promotes this is unjust and immoral. But if I curtail or lose my freedom in order to lessen the shame of such inequality, and do not thereby materially increase the individual liberty of others, an absolute loss of liberty occurs. This may be compensated for by a gain in justice or in happiness or in peace, but the loss of freedom - 'social' or 'economic' - is increased. Yet it remains true that the freedom of some must at times be curtailed to secure the freedom of others. Upon what principle should this be done? If freedom is a sacred, untouchable value, there can be no such principle. One or other of these conflicting rules or principles must, at any rate in practice, yield: not always for reasons which can be clearly stated, let alone generalized into rules or universal maxims. Still, a practical compromise has to be found.
Philosophers with an optimistic view of human nature and a belief in the possibility of harmonising human interests, such as Locke or Adam Smith or, in some moods, Mill, believed that social harmony and progress were compatible with reserving a large area for private life over which neither the State nor any other authority must be allowed to trespass. Hobbes, and those who agreed with him, especially conservative or reactionary thinkers, argued that if men were to be prevented from destroying one another and making social life a jungle or a wilderness, greater safeguards must be instituted to keep them in their places; he wished correspondingly to increase the area of centralised control and decrease that of the individual. But both sides agreed that some portion of human existence must remain independent of the sphere of social control. To invade that preserve, however small, would be despotism. The most eloquent of all defenders of freedom and privacy, Benjamin Constant, who had not forgotten the Jacobin dictatorship, declared that at the very least the liberty of religion, opinion, expression, property must be guaranteed against arbitrary invasion. Jefferson, Burke, Paine, Mill compiled different catalogues of individual liberties, but the argument for keeping authority at bay is always substantially the same. We must preserve a minimum area of personal freedom if we are not to 'degrade or deny our nature'.9 We cannot remain absolutely free, and must give up some of our liberty to preserve the rest. But total self-surrender is self-defeating. What then must the minimum be? That which a man cannot give up without offending against the essence of his human nature. What is this essence? What are the standards which it entails? This has been, and perhaps always will be, a matter of infinite debate. But whatever the principle in terms of which the area of non-interference is to be drawn, whether it is that of natural law or natural rights, or of utility, or the pronouncements of a categorical imperative, or the sanctity of the social contract, or any other concept with which men have sought to clarify and justify their 'convictions, liberty in this sense means liberty from, absence of interference beyond the shifting, but always recognisable, frontier. 'The only freedom which deserves the name, is that of pursuing our own good in our own way', said the most celebrated of its champions.10 If this is so, is compulsion ever justified? Mill had no doubt that it was. Since justice demands that all individuals be entitled to a minimum of freedom, all other individuals were of necessity to be restrained, if need be by force, from depriving anyone of it. Indeed, the whole function of law was the prevention I of just such collisions: the State was reduced to what Lassalle contemptuously described as the functions of a night-watchman or traffic policeman.
What made the protection of individual liberty so sacred to Mill? In his famous essay he declares that, unless the individual is left to live as he wishes in 'the part [of his conduct] which
9 Constant, Principes de Politique, ch. 1: p. 275. (Paris, 1980) 10 J. S. Mill, On Liberty, chapter i: p. 226 in Collected Works of John Stuart Mill, ed. J. M. Robson (Toronto/London, 1981- ), vol. 18.
6
merely concerns himself',11 civilisation cannot advance; the truth will not, for lack of a free market in ideas, come to light; there will be no scope for spontaneity, originality, genius, for mental energy, for moral courage. Society will be crushed by the weight of 'collective mediocrity'.12 Whatever is rich and diversified will be crushed by the weight of custom, by men's constant tendency to conformity, which breeds only 'withered' capacities, 'pinched and hidebound', 'cramped and dwarfed' human beings. 'Pagan self-assertion' is as worthy as 'Christian self-denial'.13 'All errors which [a man] is likely to commit against advice and warning, are far outweighed by the evil of allowing others to constrain him to what they deem his good.'14 The defence of liberty consists in the 'negative' goal of warding off interference. To threaten a man with persecution unless he submits to a life in which he exercises no choices of his goals; to block before him every door but one, no matter how noble the prospect upon which it opens, or how benevolent the motives of those who arrange this, is to sin against the truth that he is a man, a being with a life of his own to live. This is liberty as it has been conceived by liberals in the modern world from the days of Erasmus (some would say of Occam) to our own. Every plea for civil liberties and individual rights, every protest against exploitation and humiliation, against the encroachment of public authority, or the mass hypnosis of custom or organised propaganda, springs from this individualistic, and much disputed, conception of man.
Three facts about this position may be noted. In the first place Mill confuses two distinct notions. One is that all coercion is, in so far as it frustrates human desires, bad as such, although it may have to be applied to prevent other, greater evils; while non-interference, which is the opposite of coercion, is good as such, although it is not the only good. This is the 'negative' conception of liberty in its classical form. The other is that men should seek to discover the truth, or to develop a certain type of character of which Mill approved - critical, original, imaginative, independent, non- conforming to the point of eccentricity, and so on - and that truth can be found, and such character can be bred, only in conditions of freedom. Both these are liberal views, but they are not identical, and the connection between them is, at best, empirical. No one would argue that truth or freedom of self-expression could flourish where dogma crushes all thought. But the evidence of history tends to show (as, indeed, was argued by James Stephen in his formidable attack on Mill in his Liberty, Equality, Fraternity) that integrity, love of truth and fiery individualism grow at least as often in severely disciplined communities, among, for example, the puritan Calvinists of Scotland or New England, or under military discipline, as in more tolerant or indifferent societies; and if this is so, Mill's argument for liberty as a necessary condition for the growth of human genius falls to the ground. If his two goals proved incompatible, Mill would be faced with a cruel dilemma, quite apart from the further difficulties created by the inconsistency of his doctrines with strict utilitarianism, even in his own humane version of it.15
In the second place, the doctrine is comparatively modern. There seems to be scarcely any discussion of individual liberty as a conscious political ideal (as opposed to its actual existence) in the ancient world. Condorcet had already remarked that the notion of individual rights was absent
11 ibid., p. 224. 12 ibid., chapter 3, p. 268. 13 ibid., p. 265-6. 14 ibid., p. 2ch. 4, p. 277. 15 This is but another illustration of the natural tendency of all but a very few thinkers to believe that all the things they hold good must be intimately connected, or at least compatible, with one another. The history of thought, like the history of nations, is strewn with examples of inconsistent, or at least disparate, elements artificially yoked together in a despotic system, or held together by the danger of some common enemy. In due course the danger passes, and conflicts between the allies arise, which often disrupt the system, sometimes to the great benefit of mankind.
7
from the legal conceptions of the Romans and Greeks; this seems to hold equally of the Jewish, Chinese and all other ancient civilizations that have since come to light.16 The domination of this ideal has been the exception rather than the rule, even in the recent history of the West. Nor has liberty in this sense often formed a rallying cry for the great masses of mankind. The desire not to be impinged upon, to be left to oneself, has been a mark of high civilization on the part of both individuals and communities. The sense of privacy itself, of the area of personal relationships as something sacred in its own right, derives from a conception of freedom which, for all its religious roots, is scarcely older, in its developed state, than the Renaissance or the Reformation.17 Yet its decline would mark the death of a civilisation, of an entire moral outlook.
The third characteristic of this notion of liberty is of greater importance. It is that liberty in this sense is not incompatible with some kinds of autocracy, or at any rate with the absence of self- government. Liberty in this sense is principally concerned with the area of control, not with its source. Just as a democracy may, in fact, deprive the individual citizen of a great many liberties which he might have in some other form of society, so it is perfectly conceivable that a liberal- minded despot would allow his subjects a large measure of personal freedom. The despot who leaves his subjects a wide area of liberty may be unjust, or encourage the wildest inequalities, care little for order, or virtue, or knowledge; but provided he does not curb their liberty, or at least curbs it less than many other regimes, he meets with Mill's specification.18
Freedom in this sense is not, at any rate logically, connected with democracy or self- government. Self-government may, on the whole, provide a better guarantee of the preservation of civil liberties than other regimes, and has been defended as such by libertarians. But there is no necessary connection between individual liberty and democratic rule. The answer to the question 'Who governs me?' is logically distinct from the question 'How far does government interfere with me?' It is in this difference that the great contrast between the two concepts of negative and positive liberty, in the end, consists.19 For the 'positive' sense of liberty comes to light if we try to answer the
16 See the valuable discussion of this in Michel Villey, Leqons d'histoire de la philosophie du droit (Paris, 1957), which traces the embryo of the notion of subjective rights to Occam. 17 Christian (and Jewish or Muslim) belief in the absolute authority of divine or natural laws, or in the equality of all men in the sight of God, is very different from belief in freedom to live as one prefers. 18 Indeed, it is arguable that in the Prussia of Frederick the Great or in the Austria of Joseph II men of imagination, originality and creative genius, and, indeed, minorities of all kinds, were less persecuted and felt the pressure, both of institutions and custom, less heavy upon them than in many an earlier or later democracy. 19 Negative liberty' is something the extent of which, in a given case, it is difficult to estimate. It might, prima facie, seem to depend simply on the power to choose between at any rate two alternatives. Nevertheless, not all choices are equally free, or free at all. If in a totalitarian State I betray my friend under threat of torture, perhaps even if I act from fear of losing my job, I can reasonably say that I did not act freely. Nevertheless, I did, of course, make a choice, and could, at any rate in theory, have chosen to be killed or tortured or imprisoned. The mere existence of alternatives is not, therefore, enough to make my action free (although it may be voluntary) in the normal sense of the word. The extent o£ my freedom seems to depend on (a) how many possibilities are open to me (although the method of counting these can never be more than impressionistic; possibilities of action are not discrete entities like apples, which can be exhaustively enumerated); (b) how easy or difficult each of these possibilities is to actualize; (c) how important in my plan of life, given my character and circumstances, these possibilities are when compared with each other; (d) how far they are closed and opened by deliberate human acts; (e) what value not merely the agent, but the general sentiment of the society in which he lives, puts on the various possibilities. All these magnitudes must be 'integrated', and a conclusion, necessarily never precise, or indisputable, drawn from this process. It may well be that there are many incommensurable kinds and degrees of freedom, and that they cannot be drawn up on any single scale of magnitude. Moreover, in the case of societies, we are faced by such (logically absurd) questions as 'Would arrangement X increase the liberty of Mr A more than it would that of Messrs B, C and D between them, added together?' The same difficulties arise in applying utilitarian criteria. Nevertheless, provided we do not demand precise measurement, we can give valid reasons for saying that the average subject of the King of Sweden is, on the whole, a good deal freer today [1958] than the average citizen
8
question, not 'What am I free to do or be?', but 'By whom am I ruled?' or 'Who is to say what I am, and what I am not, to be or do?' The connection between democracy and individual liberty is a good deal more tenuous than it seemed to many advocates of both. The desire to be governed by myself, or at any rate to participate in the process by which my life is to be controlled, may be as deep a wish as that for a free area for action, and perhaps historically older. But it is not a desire for the same thing. So different is it, indeed, as to have led in the end to the great clash of ideologies that dominates our world. For it is this, the 'positive' conception of liberty, not freedom from, but freedom to - to lead one prescribed form of life - which the adherents of the 'negative' notion represent as being, at times, no better than a specious disguise for brutal tyranny.
II The notion of positive freedom.
The 'positive' sense of the word 'liberty' derives from the wish on the part of the individual to
be his own master. I wish my life and decisions to depend on myself, not on external forces of whatever kind. I wish to be the instrument of my own, not of other men's, acts of will. I wish to be a subject, not an object; to be moved by reasons, by conscious purposes, which are my own, not by causes which affect me, as it were, from outside. I wish to be somebody, not nobody; a doer - deciding, not being decided for, self-directed and not acted upon by external nature or by other men as if I were a thing, or an animal, or a slave incapable of playing a human role, that is, of conceiving goals and policies of my own and realising them. This is at least part of what I mean when I say that I am rational, and that it is my reason that distinguishes me as a human being from the rest of the world. I wish, above all, to be conscious of myself as a thinking, willing, active being, bearing responsibility for my choices and able to explain them by reference to my own ideas and purposes. I feel free to the degree that I believe this to be true, and enslaved to the degree that I am made to realise that it is not.
The freedom which consists in being one's own master, and the freedom which consists in not being prevented from choosing as I do by other men, may, on the face of it, seem concepts at no great 'negative’ notions of freedom historically developed in divergent directions, not always by logically reputable steps, until, in the end, they came into direct conflict with each other.
One way of making this clear is in terms of the independent momentum which the, initially perhaps quite harmless, metaphor of self-mastery acquired. 'I am my own master'; 'I am slave to no man'; but may I not (as Platonists or Hegelians tend to say) be a slave to nature? Or to my own 'unbridled' passions? Are these not so many species of the identical genus 'slave' - some political or legal, others moral or spiritual? Have not men had the experience of liberating themselves from spiritual slavery, or slavery to nature, and do they not in the course of it become aware, on the one hand, of a self which dominates, and, on the other, of something in them which is brought to heel? This dominant self is then variously identified with reason, with my 'higher nature', with the self which calculates and aims at what will satisfy it in the long run, with my 'real', or 'ideal', or 'autonomous' self, or with my self 'at its best';
of Spain or Albania. Total patterns of life must be compared directly as wholes, although the method by which we make the comparison, and the truth of the conclusions, are difficult or impossible to demonstrate. But the vagueness of the concepts, and the multiplicity of the criteria involved, are attributes of the subject-matter itself, not of our imperfect methods of measurement, or of incapacity for precise thought.
9
which is then contrasted with irrational impulse, uncontrolled desires, my 'lower' nature, the pursuit of immediate pleasures, my 'empirical' or 'heteronomous' self, swept by every gust of desire and passion, needing to be rigidly disciplined if it is ever to rise to the full height of its 'real' nature. Presently the two selves may be represented as divided by an even larger gap; the real self may be conceived as something wider than the individual (as the term is normally understood), as a social 'whole' of which the individual is an element or aspect: a tribe, a race, a Church, a State, the great society of the living and the dead and the yet unborn. This entity is then identified as being the 'true' self which, by imposing its collective, or 'organic', single will upon its recalcitrant 'members', achieves its own, and therefore their, 'higher' freedom. The perils of using organic metaphors to justify the coercion of some men by others in order to raise them to a 'higher' level of freedom have often been pointed out. But what gives such plausibility as it has to this kind of language is that we recognise that it is possible, and at times justifiable, to coerce men in the name of some goal (let us say, justice or public health) which they would, if they were more enlightened, themselves pursue, but do not, because they are blind or ignorant or corrupt. This renders it easy for me to conceive of myself as coercing others for their own sake, in their, not my, they would not resist me if they were rational and as wise as I and understood their interests as I do. But I may go on to claim a good deal more than this. I may declare that they are actually aiming at what in their benighted state they consciously resist, because there exists within them an occult entity - their latent rational will, or their 'true' purpose - and that this entity, although it is belied by all that they overtly feel and do and say, is their 'real' self, of which the poor empirical self in space and time may know nothing or little; and that this inner spirit is the only self that deserves to have its wishes taken into account.20 Once I take this view, I am in a position to ignore the actual wishes of men or societies, to bully, oppress, torture them in the name, and on behalf, of their 'real' selves, in the secure knowledge that whatever is the true goal of man (happiness, performance of duty, wisdom, a just society, self-fulfilment) must be identical with his freedom - the free choice of his 'true', albeit often submerged and inarticulate, self.
This paradox has been often exposed. It is one thing to say that I know what is good for X, while he himself does not; and even to ignore his wishes for its - and his - sake; and a very different one to say that he has eo ipso chosen it, not indeed consciously, not as he seems in everyday life, but in his role as a rational self which his empirical self may not know - the 'real' self which discerns the good, and cannot help choosing it once it is revealed. This monstrous impersonation, which consists in equating what X would choose if he were something he is not, or at least not yet, with what X actually seeks and chooses, is at the heart of all political theories of self-realisation. It is one thing to say that I may be coerced for my own good, which I am too blind to see: this may, on occasion, be for my benefit; indeed it may enlarge the scope of my liberty. It is another to say that if it is my good, then I am not being coerced, for I have willed it, whether I know this or not, and am free (or 'truly' free) even while my poor earthly body and foolish mind bitterly reject it, and struggle with the greatest desperation against those who seek, however benevolently, to impose it.
This magical transformation, or sleight of hand (for which William James so justly mocked the Hegelians), can no doubt be perpetrated just as easily with the 'negative' concept of freedom,
20 'The ideal of true freedom is the maximum of power for all members of human society alike to make the best of themselves', said T. H. Green in 1881. Lecture on Liberal Legislation and Freedom of Contract: p. 200 in T. H. Green, Lectures on the Principles of Political Obligation and Other Writings, ed. Paul Harris and John Morrow (Cambridge, 1986). Apart from the confusion of freedom with equality, this entails that if a man chose some immediate pleasure - which (in whose view?) would not enable him to make the best of himself (what self?) - what he was exercising was not 'true' freedom: and if deprived of it, he would not lose anything that mattered. Green was a genuine liberal: but many a tyrant could use this formula to justify his worst acts of oppression.
10
where the self that should not be interfered with is no longer the individual with his actual wishes and needs as they are normally conceived, but the 'real' man within, identified with the pursuit of some ideal purpose not dreamed of by his empirical self. And, as in the case of the 'positively' free self, this entity may be inflated into some super-personal entity - a State, a class, a nation, or the march of history itself, regarded as a more 'real' subject of attributes than the empirical self. But the 'positive' conception of freedom as self-mastery, with its suggestion of a man divided against himself, has in fact, and as a matter of history, of doctrine and of practice, lent itself more easily to this splitting of personality into two: the transcendent, dominant controller, and the empirical bundle of desires and passions to be disciplined and brought to heel. It is this historical fact that has been influential. This demonstrates (if demonstration of so obvious a truth is needed) that conceptions of freedom directly derive from views of what constitutes a self, a person, a man. Enough manipulation of the definition of man, and freedom can be made to mean whatever the manipulator wishes. Recent history has made it only too clear that the issue is not merely academic.
The consequences of distinguishing between two selves will become even clearer if one considers the two major forms which the desire to be self-directed - directed by one's 'true' self - has historically taken: the first, that of self-abnegation in order to attain independence; the second, that of self-realisation, or total self-identification with a specific principle or ideal in order to attain the selfsame end.
III The retreat to the inner citadel.
I am the possessor of reason and will; I conceive ends and I desire to pursue them; but I am
prevented from attaining them I no longer feel master of the situation. I may be prevented by the laws of nature, or by accidents, or the activities of men, or the effect, often undesigned, of human institutions. These forces may be too much for me. What am I to do to avoid being crushed by them? I must liberate myself from desires that I know I cannot realise. I wish to be master of my kingdom, but my frontiers are long and insecure, therefore I contract them in order to reduce or eliminate the vulnerable area. I begin by desiring happiness, or power, or knowledge, or the attainment of some specific object. But I cannot command them. I choose to avoid defeat and waste, and therefore decide to strive for nothing that I cannot be sure to obtain. I determine myself not to desire what is unattainable. The tyrant threatens me with the destruction of my property, with imprisonment, with the exile or death of those I love. But if I no longer feel attached to property, no longer care whether or not I am in prison, if I have killed within myself my natural affections, then he cannot bend me to his will, for all that is left of myself is no longer subject to empirical fears or desires. It is as if I had performed a strategic retreat into an inner citadel - my reason, my soul, my 'noumenal' self - which, do what they may, neither external blind force, nor human malice, can touch. I have withdrawn into myself; there, and there alone, I am secure. It is as if I were to say: 'I have a wound in my leg. There are two methods of freeing myself from pain. One is to heal the wound. But if the cure is too difficult or uncertain, there is another method. I can get rid of the wound by cutting off my leg. If I train myself to want nothing to which the possession of my leg is indispensable, I shall not feel the lack of it.' This is the traditional self-emancipation of ascetics and quietists, of stoics or Buddhist sages, men of various religions or of none, who have fled the world, and escaped the yoke of society or public opinion, by some process of deliberate self-transformation that enables them to care no longer for any of its values, to remain, isolated and independent, on its edges, no longer vulnerable
11
to its weapons.21 All political isolationism, all economic autarky, every form of autonomy, has in it some element of this attitude. I eliminate the obstacles in my path by abandoning the path; I retreat into my own sect, my own planned economy, my own deliberately insulated territory, where no voices from outside need be listened to, and no external forces can have effect. This is a form of the search for security; but it has also been called the search for personal or national freedom or independence.
From this doctrine, as it applies to individuals, it is no very great distance to the conceptions of those who, like Kant, identify freedom not indeed with the elimination of desires, but with resistance to them, and control over them. I identify myself with the controller and escape the slavery of the controlled. I am free because, and in so far as, I am autonomous. I obey laws, but I have imposed them on, or found them in, my own uncoerced self. Freedom is obedience, but, in Rousseau's words, 'obedience to a law which we prescribe to ourselves',22 and no man can enslave himself. Heteronomy is dependence on outside factors, liability to be a plaything of the external world that I cannot myself fully control, and which pro tanto controls and 'enslaves' me. I am free only to the degree to which my person is 'fettered' by nothing that obeys forces over which I have no control; I cannot control the laws of nature; my free activity must therefore, ex hypothesis be lifted above the empirical world of causality. This is not the place in which to discuss the validity of this ancient and famous doctrine; I only wish to remark that the related notions of freedom as resistance to (or escape from) unrealisable desire, and as independence of the sphere of causality, have played a central role in politics no less than in ethics.
For if the essence of men is that they are autonomous beings -authors of values, of ends in themselves, the ultimate authority of which consists precisely in the fact that they are willed freely - then nothing is worse than to treat them as if they were not autonomous, but natural objects, played on by causal influences, creatures at the mercy of external stimuli, whose choices can be manipulated by their rulers, whether by threats of force or offers of rewards. To treat men in this way is to treat them as if they were not self-determined. 'Nobody may compel me to be happy in his own way', said Kant. Paternalism is 'the greatest despotism imaginable'.23 This is so because it is to treat men as if they were not free, but human material for me, the benevolent reformer, to mould in accordance with my own, not their, freely adopted purpose. This is, of course, precisely the policy that the early utilitarians recommended. Helvetius (and Bentham) believed not in resisting, but in using, men's tendency to be slaves to their passions; they wished to dangle rewards and punishments before men - the acutest possible form of heteronomy - if by this means the 'slaves' might be made happier.24 But to manipulate men, to propel them towards goals which you - the social reformer - see, but they may not, is to deny their human essence, to treat them as objects without wills of their own, and therefore to degrade them. That is why to lie to men, or to deceive them, that is, to use them as means for my, not their own, independently conceived ends, even if it is for their own benefit, is, in effect, to treat them as subhuman, to behave as if their ends are less ultimate and sacred than my own. In the name of what can I ever be justified in forcing men to do what they have 21 'A wise man, though he be a slave, is at liberty, and from this it follows that though a fool rule, he is in slavery', said St Ambrose. It might equally well have been said by Epictetus or Kant. Corpus Scriptorum Latinorum, vol. 82. part 1, ed. Otto Faller (Vienna, 1968), letter 7, §24 (p.55). 22 Social Contract, book i, chapter 8: p. 365 in Oeuvres completes (op. cit., p. 195 above, note 2), vol. 3; cf. Constant, op. cit. (p. 198 above, note i), p. 272. 23 op. cit. (p. 16 above, note i), vol. 8, p. 290, line 27, and p. 291, line 3. 24 'Proletarian coercion, in all its forms, from executions to forced labour, is, paradoxical as it may sound, the method of moulding communist humanity out of the human material of the capitalist period.' These lines by the Bolshevik leader Nikolay Bukharin, especially the term 'human material', vividly convey this attitude. Nikolay Bukharin, Ekonomika perekhodnogo perioda [Economics in the Transitional Period] (Moscow, 1920), chapter 10, p. 146.
12
not willed or consented to? Only in the name of some value higher than themselves. But if, as Kant held, all values are made so by the free acts of men, and called values only so far as they are this, there is no value higher than the individual. Therefore to do this is to coerce men in the name of something less ultimate than themselves - to bend them to my will, or to someone else's particular craving for (his or their) happiness or expediency or security or convenience. I am aiming at something desired (from whatever motive, no matter how noble) by me or my group, to which I am using other men as means. But this is a contradiction of what I know men to be, namely ends in themselves. All forms of tampering with human beings, getting at them, shaping them against their will to your own pattern, all thought-control and conditioning,25 is, therefore, a denial of that in men which makes them men and their values ultimate.
Kant's free individual is a transcendent being, beyond the realm of natural causality. But in its empirical form - in which the notion of man is that of ordinary life - this doctrine was the heart of liberal humanism, both moral and political, that was deeply influenced both by Kant and by Rousseau in the eighteenth century. In its a priori version it is a form of secularised Protestant individualism, in which the place of God is taken by the conception of the rational life, and the place of the individual soul which strains towards union with him is replaced by the conception of the individual, endowed with reason, straining to be governed by reason and reason alone, and to depend upon nothing that might deflect or delude him by engaging his irrational nature. Autonomy, not heteronomy: to act and not to be acted upon. The notion of slavery to the passions is - for those who think in these terms -more than a metaphor. To rid myself of fear, or love, or the desire to conform is to liberate myself from the despotism of something which I cannot control. Sophocles, whom Plato reports as saying that old age alone has liberated him from the passion of love - the yoke of a cruel master - is reporting an experience as real as that of liberation from a human tyrant or slave owner. The psychological experience of observing myself yielding to some 'lower' impulse, acting from a motive that I dislike, or of doing something which at the very moment of doing I may detest, and reflecting later that I was 'not myself, or 'not in control of myself, when I did it, belongs to this way of thinking and speaking. I identify myself with my critical and rational moments. The consequences of my acts cannot matter, for they are not in my control; only my motives are. This is the creed of the solitary thinker who has defied the world and emancipated himself from the chains of men and things. In this form the doctrine may seem primarily an ethical creed, and scarcely political at all; nevertheless its political implications are clear, and it enters into the tradition of liberal individualism at least as deeply as the 'negative' concept of freedom.
It is perhaps worth remarking that in its individualistic form the concept of the rational sage who has escaped into the inner fortress of his true self seems to arise when the external world has proved exceptionally arid, cruel or unjust. 'He is truly free', said Rousseau, 'who desires what he can perform, and does what he desires.’26 In a world where a man seeking happiness or justice or freedom (in whatever sense) can do little, because he finds too many avenues of action blocked to him, the temptation to withdraw into himself may become irresistible. It may have been so in Greece, where the Stoic ideal cannot be wholly unconnected with the fall of the independent democracies before centralized Macedonian autocracy. It was so in Rome, for analogous reasons,
25 Kant's psychology, and that of the Stoics and Christians too, assumed that some element in man - the 'inner fastness of his mind' - could be made secure against conditioning. The development of the techniques of hypnosis, 'brainwashing', subliminal suggestion and the like has made this a priori assumption, at least as an empirical hypothesis, less plausible. 26 Op.cit. (p.195 above, note 2), p. 309.
13
after the end of the Republic.27 It arose in Germany in the seventeenth century, during the period of the deepest national degradation of the German States that followed the Thirty Years War, when the character of public life, particularly in the small principalities, forced those who prized the dignity of human life, not for the first or last time, into a kind of inner emigration. The doctrine that maintains that what I cannot have I must teach myself not to desire, that a desire eliminated, or successfully resisted, is as good as a desire satisfied, is a sublime, but, it seems to me, unmistakable, form of the doctrine of sour grapes: what I cannot be sure of, I cannot truly want.
This makes it clear why the definition of negative liberty as the ability to do what one wishes - which is, in effect, the definition adopted by Mill - will not do. If I find that I am able to do little or nothing of what I wish, I need only contract or extinguish my wishes, and I am made free. If the tyrant (or 'hidden persuader') manages to condition his subjects (or customers) into losing their original wishes and embracing ('internalising') the form of life he has invented for them, he will, on this definition, have succeeded in liberating them. He will, no doubt, have made them feel free - as Epictetus feels freer than his master (and the proverbial good man is said to feel happy on the rack). But what he has created is the very antithesis of political freedom.
Ascetic self-denial may be a source of integrity or serenity and spiritual strength, but it is difficult to see how it can be called an enlargement of liberty. If I save myself from an adversary by retreating indoors and locking every entrance and exit, I may remain freer than if I had been captured by him, but am I freer than if I had defeated or captured him? If I go too far, contract myself into too small a space, I shall suffocate and die. The logical culmination of the process of destroying everything through which I can possibly be wounded is suicide. While I exist in the natural world, I can never be wholly secure. Total liberation in this sense (as Schopenhauer correctly perceived) is conferred only by death.28
I find myself in a world in which I meet with obstacles to my will. Those who are wedded to the 'negative' concept of freedom may perhaps be forgiven if they think that self-abnegation is not the only method of overcoming obstacles; that it is also possible to do so by removing them: in the case of non-human objects, by physical action; in the case of human resistance, by force or persuasion, as when I induce somebody to make room for me in his carriage, or conquer a country which threatens the interests of my own. Such acts may be unjust, they may involve violence, cruelty, the enslavement of others, but it can scarcely be denied that thereby the agent is able in the most literal sense to increase his own freedom. It is an irony of history that this truth is repudiated by some of those who practise it most forcibly, men who, even while they conquer power and freedom of action, reject the 'negative' concept of it in favour of its 'positive' counterpart. Their view rules over half our world; let us see upon what metaphysical foundation it rests.
27 It is not perhaps far-fetched to assume that the quietism of the Eastern sages was, similarly, a response to the despotism of the great autocracies, and nourished at periods when individuals were apt to be humiliated, or at any rate ignored or ruthlessly managed, by those possessed of the instruments of physical coercion. 28 It is worth remarking that those who demanded - and fought for - liberty for the individual or for the nation in France during this period of German quietism did not fall into this attitude. Might this not be precisely because, despite the despotism of the French monarchy and the arrogance and arbitrary behaviour of privileged groups in the French State, France was a proud and powerful nation, where the reality of political power was not beyond the grasp of men of talent, so that withdrawal from battle into some untroubled heaven above it, whence it could be surveyed dispassionately by the self-sufficient philosopher, was not the only way out? The same holds for England in the nineteenth century and well after it, and for the United States today.
14
IV
Self-realisation.
The only true method of attaining freedom, we are told, is by the use of critical reason, the
understanding of what is necessary and what is contingent. If I am a schoolboy, all but the simplest truths of mathematics obtrude themselves as obstacles to the free functioning of my mind, as theorems whose necessity I do not understand; they are pronounced to be true by some external authority, and present themselves to me as foreign bodies which I am expected mechanically to absorb into my system. But when I understand the functions of the symbols, the axioms, the formation and transformation rules - the logic whereby the conclusions are obtained - and grasp that these things cannot be otherwise, because they appear to follow from the laws that govern the processes of my own reason,29 then mathematical truths no longer obtrude themselves as external entities forced upon me which I must receive whether I want to or not, but as something which I now freely will in the course of the natural functioning of my own rational activity. For the mathematician, the proof of these theorems is part of the free exercise of his natural reasoning capacity. For the musician, after he has assimilated the pattern of the composer's score, and has made the composer's ends his own, the playing of the music is not obedience to external laws, a compulsion and a barrier to liberty, but a free, unimpeded exercise. The player is not bound to the score as an ox to the plough, or a factory worker to the machine. He has absorbed the score into his own system, has, by understanding it, identified it with himself, has changed it from an impediment to free activity into an element in that activity itself. What applies to music or mathematics must, we are told, in principle apply to all other obstacles which present themselves as so many lumps of external stuff blocking free self-development. That is the programme of enlightened rationalism from Spinoza to the latest (at times unconscious) disciples of Hegel. Sapere aude. What you know, that of which you understand the necessity - the rational necessity - you cannot, while remaining rational, want to be otherwise. For to want something to be other than what it must be is, given the premisses - the necessities that govern the world -to be pro tanto either ignorant or irrational. Passions, prejudices, fears, neuroses spring from ignorance, and take the form of myths and illusions. To be ruled by myths, whether they spring from the vivid imaginations of unscrupulous charlatans who deceive us in order to exploit us, or from psychological or sociological causes, is a form of heteronomy, of being dominated by outside factors in a direction not necessarily willed by the agent. The scientific determinists of the eighteenth century supposed that the study of the sciences of nature, and the creation of sciences of society on the same model, would make the operation of such causes transparently clear, and thus enable individuals to recognise their own part, in the working of a rational world, frustrating only when misunderstood. Knowledge liberates, as Epicurus taught long ago, by automatically eliminating irrational fears and desires.
Herder, Hegel and Marx substituted their own vitalistic models of social life for the older, mechanical, ones, but believed, no less than their opponents, that to understand the world is to be freed. They merely differed from them in stressing the part played by change and growth in what made human beings human. Social life could not be understood by an analogy drawn from mathematics or physics. One must also understand history, that is, the peculiar laws of continuous growth, whether by 'dialectical5 conflict or otherwise, that govern individuals and groups in their
29 Or, as some modern theorists maintain, because I have, or could have, invented them for myself, since the rules are man-made.
15
interplay with each other and with nature. Not to grasp this is, according to these thinkers, to fall into a particular kind of error, namely the belief that human nature is static, that its essential properties are the same everywhere and at all times, that it is governed by unvarying natural laws, whether they are conceived in theological or materialistic terms, which entails the fallacious corollary that a wise lawgiver can, in principle, create a perfectly harmonious society at any time by appropriate education and legislation, because rational men, in all ages and countries, must always demand the same unaltering satisfactions of the same unaltering basic needs. Hegel believed that his contemporaries (and indeed all his predecessors) misunderstood the nature of institutions because they did not understand the laws - the rationally intelligible laws, since they spring from the operation of reason - that create and alter institutions and transform human character and human action. Marx and his disciples maintained that the path of human beings was obstructed not only by natural forces, or the imperfections of their own characters, but, even more, by the workings of their own social institutions, which they had originally created (not always consciously) for certain purposes, but whose functioning they systematically came to misconceive,30 and which thereupon became obstacles to their creators' progress. Marx offered social and economic hypotheses to account for the inevitability of such misunderstanding, in particular of the illusion that such man- made arrangements were independent forces, as inescapable as the laws of I nature. As instances of such pseudo-objective forces, he pointed to the laws of supply and demand, or the institution of property, or I the eternal division of society into rich and poor, or owners and I workers, as so many unaltering human categories. Not until we | had reached a stage at which the spells of these illusions could be | broken, that is, until enough men reached a social stage that alone enabled them to understand that these laws and institutions were themselves the work of human minds and hands, historically I needed in their day, and later mistaken for inexorable, objective powers, could the old world be destroyed, and more adequate and t liberating social machinery substituted.
We are enslaved by despots - institutions or beliefs or neuroses -| which can be removed only by being analysed and understood. We I are imprisoned by evil spirits which we have ourselves - albeit not I consciously - created, and can exorcise them only by becoming I conscious and acting appropriately: indeed, for Marx understanding is appropriate action. I am free if, and only if, I plan my life in accordance with my own will; plans entail rules; a rule does not oppress me or enslave me if I impose it on myself consciously, or accept it freely, having understood it, whether it was invented by me or by others, provided that it is rational, that is to say, conforms to the necessities of things. To understand why things must be as they must be is to will them to be so. Knowledge liberates not by offering us more open possibilities amongst which we can make our choice, but by preserving us from the frustration of attempting the impossible. To want necessary laws to be other than they are is to be prey to an irrational desire - a desire that what must be X should also be not-X. To go further, and believe these laws to be other than what they necessarily are, is to be insane. That is the metaphysical heart of rationalism. The notion of liberty contained in it is not the 'negative' conception of a field (ideally) without obstacles, a vacuum in which nothing obstructs me, but the notion of self-direction or self-control. I can do what I will with my own. I am a rational being; whatever I can demonstrate to myself as being necessary, as incapable of being otherwise in a rational society - that is, in a society directed by rational minds, towards goals such as a rational being would have - I cannot, being rational, wish to sweep out of my way. I assimilate it into my substance as I do the laws of logic, of mathematics, of which I can never be thwarted, since I cannot want it to be other than it is.
30 In practice even more than in theory.
16
This is the positive doctrine of liberation by reason. Socialized forms of it, widely disparate and opposed to each other as they are, are at the heart of many of the nationalist, communist, authoritarian, and totalitarian creeds of our day. It may, in the course of its evolution, have wandered far from its rationalist moorings. Nevertheless, it is this freedom that, in democracies and in dictatorships, is argued about, and fought for, in many parts of the earth today. Without attempting to trace the historical evolution of this idea, I should like to comment on some of its vicissitudes.
V
The Temple of Sarastro.
Those who believed in freedom as rational self-direction were bound, sooner or later, to
consider how this was to be applied not merely to a man's inner life, but to his relations with other members of his society. Even the most individualistic among them - and Rousseau, Kant and Fichte certainly began as individualists -came at some point to ask themselves whether a rational life not only for the individual, but also for society, was possible, and if so, how it was to be achieved. I wish to be free to live as my rational will (my 'real self) commands, but so must others be. How am I to avoid collisions with their wills? Where is the frontier that lies between my (rationally determined) rights and the identical rights of others? For if I am rational, I cannot deny that what is right for me must, for the same reasons, be right for others who are rational like me. A rational (or free) State would be a State governed by such laws as all rational men would freely accept; that is to say, such laws as they would themselves have enacted had they been asked what, as rational beings, they demanded; hence the frontiers would be such as all rational men would consider to be the right frontiers for rational beings.
But who, in fact, was to determine what these frontiers were? Thinkers of this type argued that if moral and political problems were genuine - as surely they were - they must in principle be soluble; that is to say, there must exist one and only one true solution to any problem. All truths could in principle be discovered by any rational thinker, and demonstrated so clearly that all other rational men could not but accept them; indeed, this was already to a large extent the case in the new natural sciences. On this assumption the problem of political liberty was soluble by establishing a just order that would give to each man all the freedom to which a rational being was entitled. My claim to unfettered freedom can prima facie at times not be reconciled with your equally unqualified claim; but the rational solution of one problem cannot collide with the equally true solution of another, for two truths cannot logically be incompatible; therefore a just order must in principle be discoverable - an order of which the rules make possible correct solutions to all possible problems that could arise in it. This ideal, harmonious state of affairs was sometimes imagined as a Garden of Eden before the Fall of Man, an Eden from which we were expelled, but for which we were still filled with longing; or as a golden age still before us, in which men, having become rational, will no longer be 'other-directed', nor 'alienate' or frustrate one another. In existing societies justice and equality are ideals which still call for some measure of coercion, because the premature lifting of social controls might lead to the oppression of the weaker and the stupider by the stronger or abler or more energetic and unscrupulous. But it is only irrationality on the part of men (according to this doctrine) that leads them to wish to oppress or exploit or humiliate one another. Rational men will respect the principle of reason in each other, and lack all desire to fight or dominate one another.
17
The desire to dominate is itself a symptom of irrationality, and can be explained and cured by rational methods. Spinoza offers one kind of explanation and remedy, Hegel another, Marx a third. Some of these theories may perhaps, to some degree, supplement each other, others are not combinable. But they all assume that in a society of perfectly rational beings the lust for domination over men will be absent or ineffective. The existence of, or cravings for, oppression will be the first symptom that the true solution to the problems of social life
has not been reached.
This can be put in another way. Freedom is self-mastery, the elimination of obstacles to my will, whatever these obstacles may be - the resistance of nature, of my ungoverned passions, of irrational institutions, of the opposing wills or behaviour of others. Nature I can, at least in principle, always mould by technical means, and shape to my will. But how am I to treat recalcitrant human beings? I must, if I can, impose my will on them too, 'mould' them to my pattern, cast parts for them in my play. But will this not mean that I alone am free, while they are slaves? They will be so if my plan has nothing to do with their wishes or values, only with my own. But if my plan is fully rational, it will allow for the full development of their 'true' natures, the realisation of their capacities for rational decisions, for 'making the best of themselves' - as a part of the realisation of my own 'true' self. All true solutions to all genuine problems must be compatible: more than this, they must fit into a single whole; for this is what is meant by calling them all rational and the universe harmonious. Each man has his specific character, abilities, aspirations, ends. If I grasp both what these ends and natures are, and how they all relate to one another, I can, at least in principle, if I have the knowledge and the strength, satisfy them all, so long as the nature and the purposes in question are rational. Rationality is knowing things and people for what they are: I must not use stones to make violins, nor try to make born violin-players play flutes. If the universe is governed by reason, then there will be no need for coercion; a correctly planned life for all will coincide with full freedom - the freedom of rational self-direction - for all. This will be so if, and only if, the plan is the true plan - the one unique pattern which alone fulfils the claims of reason. Its laws will be the rules which reason prescribes: they will only seem irksome to those whose reason is dormant, who do not understand the true 'needs' of their own 'real' selves. So long as each player recognises and plays the part set him by reason - the faculty that understands his true nature and discerns his true ends -there can be no conflict. Each man will be a liberated, self-directed actor in the cosmic drama. Thus Spinoza tells us that children, although they are coerced, are not slaves, because they obey orders given in their own interests, and that the subject of a true commonwealth is no slave, because the common interests must include his own.31 Similarly, Locke says 'Where there is no law there is no freedom', because rational law is a direction to a man's 'proper interests' or 'general good'; and adds that since law of this kind is what 'hedges us in only from bogs and precipices' it 'ill deserves the name of confinement',32 and speaks of desires to escape from it as being irrational, forms of 'licence', as 'brutish',33 and so on. Montesquieu, forgetting his liberal moments, speaks of political liberty as being not permission to do what we want, or even what the law allows, but only 'the power of doing what we ought to will',34 which Kant virtually repeats. Burke proclaims the individual's
31 Tractatus Theologico-Politicus, chapter 16: p. 137 in Benedict de Spinoza, The Political Works, ed. A. G. Wernham (Oxford, 1958). 32 Two Treatises of Government, second treatise, § 57. 33 ibid., §§ 6, 163. 34 De I'esprit des lois, book n, chapter 3: p. 20$ in Oeuvres completes de Montesquieu, ed. A. Masson (Paris, 1950-5), vol. i A.
18
'right' to be restrained in his own interest, because 'the presumed consent of every rational creature is in unison with the predisposed order of things'.35
The common assumption of these thinkers (and of many a schoolman before them and Jacobin and Communist after them) is that the rational ends of our 'true' natures must coincide, or be made to coincide, however violently our poor, ignorant, desire-ridden, passionate, empirical selves may cry out against this process. Freedom is not freedom to do what is irrational, or stupid, or wrong. To force empirical selves into the right pattern is no tyranny, but liberation.36 Rousseau tells me that if I freely surrender all the parts of my life to society, I create an entity which, because it has been built by an equality of sacrifice of all its members, cannot wish to hurt any one of them; in such a society, we are informed, it can be in nobody's interest to damage anyone else. 'In giving myself to all, I give myself to none',37 and get back as much as I lose, with enough new force to preserve my new gains. Kant tells us that when 'the individual has entirely abandoned his wild, lawless freedom, to find it again, unimpaired, in a state of dependence according to law', that alone is true freedom, 'for this dependence is the work of my own will acting as a lawgiver'.38 Liberty, so far from being incompatible with authority, becomes virtually identical with it. This is the thought and language of all the declarations of the rights of man in the eighteenth century, and of all those who look upon society as a design constructed according to the rational laws of the wise lawgiver, or of nature, or of history, or of the Supreme Being. Bentham, almost alone, doggedly went on repeating that the business of laws was not to liberate but to restrain: every law is an infraction of liberty39 - even if such infraction leads to an increase of the sum of liberty.
If the underlying assumptions had been correct - if the method of solving social problems resembled the way in which solutions to the problems of the natural sciences are found, and if reason were what rationalists said that it was - all this would perhaps follow. In the ideal case, liberty coincides with law: autonomy with authority. A law which forbids me to do what I could not, as a sane being, conceivably wish to do is not a restraint of my freedom. In the ideal society, composed of wholly responsible beings, rules, because I should scarcely be conscious of them, would gradually wither away. Only one social movement was bold enough to render this assumption quite explicit and accept its consequences -that of the Anarchists. But all forms of liberalism founded on a rationalist metaphysics are less or more watered-down versions of this creed.
In due course, the thinkers who bent their energies to the solution of the problem on these lines came to be faced with the question of how in practice men were to be made rational in this way. Clearly they must be educated. For the uneducated are irrational, heteronomous, and need to be coerced, if only to make life tolerable for the rational if they are to live in the same society and not be compelled to withdraw to a desert or some Olympian height. But the uneducated cannot be expected to understand or co-operate with the purposes of their educators. Education, says Fichte, must inevitably work in such a way that 'you will later recognise the reasons for what I am doing 35 Appeal from the Old to the New Whigs (1791): pp. 93-4 in The Works of the Right Honourable Edmund Burke (World's Classics edition), vol. 5 (London, 1907). 36 On this Bentham seems to me to have said the last word: 'The liberty of doing evil, is it not liberty? If it is not liberty, what is it then? . .. Do we not say that liberty should be taken away from fools, and wicked persons, because they abuse it?' The Works of Jeremy Bentham, ed. John Bowring (Edinburgh, 1843), vol. i, p. 301. Compare with this the view of the Jacobins in the same period, discussed by Crane Brinton in 'Political Ideas in the Jacobin Clubs', Political Science Quarterly 43 (1928), 249-64, esp. p. 257: 'no man is free in doing evil. To prevent him is to free him.' This view is echoed in almost identical terms by British Idealists at the end of the following century. 37 Social Contract, book i, chapter 6: p. 361 in Oeuvres completes (op. cit., p. 195 above, note 2), vol. 3. 38 op. cit. (p. 16 above, note i), vol. 6, p 316, line 2. 39 op. cit. (p. 219 above, note 3), ibid.: 'every law is contrary to liberty'.
19
now'.40 Children cannot be expected to understand why they are compelled to go to school, nor the ignorant - that is, for the moment, the majority of mankind - why they are made to obey the laws that will presently make them rational. 'Compulsion is also a kind of education.’41 You learn the great virtue of obedience to superior persons. If you cannot understand your own interests as a rational being, I cannot be expected to consult you, or abide by your wishes, in the course of making you rational. I must, in the end, force you to be protected against smallpox, even though you may not wish it. Even Mill is prepared to say that I may forcibly prevent a man from crossing a bridge if there is not time to warn him that it is about to collapse, for I know, or am justified in assuming, that he cannot wish to fall into the water. Fichte knows what the uneducated German of his time wishes to be or do better than he can possibly know this for himself. The sage knows you better than you know yourself, for you are the victim of your passions, a slave living a heteronomous life, purblind, unable to understand your true goals. You want to be a human being. It is the aim of the State to satisfy your wish. 'Compulsion is justified by education for future insight.’42 The reason within me, if it is to triumph, must eliminate and suppress my 'lower' instincts, my passions and desires, which render me a slave; similarly (the fatal transition from individual to social concepts is almost imperceptible) the higher elements in society - the better educated, the more rational, those who 'possess the highest insight of their time and people’43 - may exercise compulsion to rationalise the irrational section of society. For - so Hegel, Bradley, Bosanquet have often assured us - by obeying the rational man we obey ourselves: not indeed as we are, sunk in our | ignorance and our passions, weak creatures afflicted by diseases that need a healer, wards who require a guardian, but as we could be if we were rational; as we could be even now, if only we would listen to the rational element which is, ex hypothesi, within every human being who deserves the name.
The philosophers of 'Objective Reason', from the tough, rigidly centralised, 'organic' State of Fichte, to the mild and humane liberalism of T. H. Green, certainly supposed themselves to be fulfilling, and not resisting, the rational demands which, however inchoate, were to be found in the breast of every sentient being.
But I may reject such democratic optimism, and turning away from the ideological determinism of the Hegelians towards some more voluntanst philosophy, conceive the idea of imposing on my society - for its own betterment - a plan of my own, which in my rational wisdom I have elaborated; and which, unless I act on my own, perhaps against the permanent wishes of the vast majority of my fellow citizens, may never come to fruition at all. Or, abandoning the concept of reason altogether, I may conceive myself as an inspired artist, who moulds men into patterns in the light of his unique vision, as painters combine colours or composers sounds; humanity is the raw material upon which I impose my creative will; even though men suffer and die in the process, they are lifted by it to a height to which they could never have risen without my coercive - but creative - violation of their lives. This is the argument used by every dictator, inquisitor and bully who seeks some moral, or even aesthetic, justification for his conduct. I must do for men (or with them) what they cannot do for themselves, and I cannot ask their permission or consent, because they are in no condition to know what is best for them; indeed, what they will permit and accept may mean a life of contemptible mediocrity, or perhaps even their ruin and suicide. Let me quote from the true progenitor of the heroic doctrine, Fichte, once again:
40 Johann Gottlieb Fichte’s Sämmtliche Werke, ed. I.H. Fichte (Berlin, 1846-6), vol. 7, p.176. 41 ibid., p. 574. 42 ibid., p. 578. 43 ibid p. 576.
20
'No one has ... rights against reason.' 'Man is afraid of subordinating his subjectivity to the laws of reason. He prefers tradition or arbitrariness.’44 Nevertheless, subordinated he must be. 45 Fichte puts forward the claims of what he called reason; Napoleon, or Carlyle, or romantic authoritarians may worship other values, and see in their establishment by force the only path to 'true' freedom.
The same attitude was pointedly expressed by August Comte, who asked why, if we do not allow free thinking in chemistry or biology, we should allow it in morals or politics.46 Why indeed? If it makes sense to speak of political truths - assertions of social ends are which all men, because they are men, must, once they discovered, agree to be such; and if, as Comte believed, scientific method will in due course reveal them; then what case is there for freedom of opinion or action - at least as an end in itself, and not merely as a stimulating intellectual climate - either for individuals or for groups? Why should any conduct be tolerated that is not authorized by appropriate experts? Comte put bluntly what had been implicit in the rationalist theory of politics from its ancient Greek beginnings. There can, in principle, be only one correct way of life; the wise lead it spontaneously, that is why they are called wise. The unwise must be dragged towards it by all the social means in the power of the wise; for why should demonstrable error be suffered to survive and breed? The immature and untutored must be made to say to themselves: 'Only the truth liberates, and the only way in which I can learn the truth is by doing blindly today, what you, who know it, order me, or coerce me, to do, in the certain knowledge that only thus will I arrive at your clear vision, and be free like you.'
We have wandered indeed from our liberal beginnings. This argument, employed by Fichte in his latest phase, and after him by other defenders of authority, from Victorian schoolmasters and colonial administrators to the latest nationalist or Communist dictator, is precisely what the Stoic and Kantian morality protests against most bitterly in the name of the reason of the free individual following his own inner light. In this way the rationalist argument, with its assumption of the single true solution, has led by steps which, if not logically valid, are historically and psychologically intelligible from an ethical doctrine of individual responsibility and individual self-perfection to an authoritarian State obedient to the directives of an elite of Platonic guardians.
What can have led to so strange a reversal - the transformation of Kant's severe individualism into something close to a pure totalitarian doctrine on the part of thinkers some of whom claimed to be his disciples? This question is not of merely historical interest, for not a few contemporary liberals have gone through the same peculiar evolution. It is true that Kant insisted, following Rousseau, that a capacity for rational self-direction belonged to all men; that there could be no experts in moral matters, since morality was a matter not of specialised knowledge (as the Utilitarians and philosophes had maintained), but of the correct use of a universal human faculty; and consequently that what made men free was not acting in certain self-improving ways, which they could be coerced to do, but knowing why they ought to do so, which nobody could do for, or on behalf of, anyone else. But even Kant, when he came to deal with political issues, conceded that no
44 ibid., pp. 578, 580. 45 To compel men to adopt the right form of government, to impose Right on them by force, is not only the right, but the sacred duty of every man who has both the insight and the power to do so.' ibid., vol. 4, p. 436. 46 See Plan des travaux scientifiques necessaires pour reorgamser la societe (1822); p. 53 in Auguste Comte, Appendice general du systeme de politiqne positive (Paris, 1854), published as part of vol. 4 of Systeme de politique positive (Pans, 1851-4). [Mill quotes this passage in Auguste Comte and Positivism: pp. 301-2 m his Collected Works (op. cit., p. 199 above, note i), vol. 10. H.H.]
21
law, provided that it was such that I should, if I were asked, approve it as a rational being, could possibly deprive me of any portion of my rational freedom. With this the door was opened wide to the rule of experts. I cannot consult all men about all enactments all the time. The government cannot be a continuous plebiscite. Moreover, some men are not as well attuned to the voice of their own reason as others: some seem singularly deaf. If I am a legislator or a ruler, I must assume that if the law I impose is rational (and I can consult only my own reason) it will automatically be approved by all the members of my society so far as they are rational beings. For if they disapprove, they must, pro tanto, be irrational; then they will need to be repressed by reason: whether their own or mine cannot matter, for the pronouncements of reason must be the same in all minds. I issue my orders and, if you resist, take it upon myself to repress the irrational element in you which opposes reason. My task would be easier if you repressed it in yourself; I try to educate you to do so. But I am responsible for public welfare, I cannot wait until all men are wholly rational. Kant may protest that the essence of the subject's freedom is that he, and he alone, has given himself the order to obey. But this is a counsel of perfection. If you fail to discipline yourself, I must do so for you; and you cannot complain of lack of freedom, for the fact that Kant's rational judge has sent you to prison is evidence that you have not listened to your own inner reason, that, like a child, a savage, an idiot, you are not ripe for self-direction, or permanently incapable of it.47
If this leads to despotism, albeit by the best or the wisest - to Sarastro's temple in The Magic Flute - but still despotism, which turns out to be identical with freedom, can it be that there is something amiss in the premises of the argument? That the basic assumptions are themselves somewhere at fault? Let me state them once more: first, that all men have one true purpose, and one only, that of rational self-direction; second, that the ends of all rational beings must of necessity fit into a single universal, harmonious pattern, which some men may be able to discern more clearly than others; third, that all conflict, and consequently all tragedy, is due solely to the clash of reason with the irrational or the insufficiently rational - the immature and undeveloped elements in life, whether individual or communal - and that such clashes are, in principle, avoidable, and for wholly rational beings impossible; finally, that when all men have been made rational, they will obey the
47 Kant came nearest to asserting the 'negative' ideal of liberty when (in one of his political treatises) he declared that 'The greatest problem of the human race, to the solution of which it is compelled by nature, is the establishment of a civil society universally administering right according to law. It is only in a society which possesses the greatest liberty ... - and also the most exact determination and guarantee of the limits of [the] liberty [of each individual] in order that it may co-exist with the liberty of others - that the highest purpose of nature, which is the development of all her capacities, can be attained in the case of mankind.' 'Idee zu einer allgemeinen Geschichte in weltbürgerlicher Absicht' (1784), in op. cit. (p. 16 above, note i), vol. 8, p. 22, line 6. Apart from the teleological implications, this formulation does not at first appear very different from orthodox liberalism. The crucial point, however, is how to determine the criterion for the 'exact determination and guarantee of the limits' of individual liberty. Most modern liberals, at their most consistent, want a situation in which as many individuals as possible can realise as many of their ends as possible, without assessment of the value of these ends as such, save in so far as they may frustrate the purposes of others. They wish the frontiers between individuals or groups of men to be drawn solely with a view to preventing collisions between human purposes, all of which must be considered to be equally ultimate, uncriticisable ends in themselves. Kant, and the rationalists of his type, do not regard all ends as of equal value. For them the limits of liberty are determined by applying the rules of 'reason', which is much more than the mere generality of rules as such, and is a faculty that creates or reveals a purpose identical in, and for, all men. In the name of reason anything that is non-rational may be condemned, so that the various personal aims which their individual imaginations and idiosyncrasies lead men to pursue - for example, aesthetic and other non-rational kinds of self-fulfilment -may, at least in theory, be ruthlessly suppressed to make way for the demands of reason. The authority of reason and of the duties it lays upon men is identified with individual freedom, on the assumption that only rational ends can be the 'true' objects of a 'free' man's 'real' nature. I have never, I must own, understood what 'reason' means in this context; and here merely wish to point out that the a priori assumptions of this philosophical psychology are not compatible with empiricism: that is to say, with any doctrine founded on knowledge derived from experience of what men are and seek.
22
rational laws of their own natures, which are one and the same in them all, and so be at once wholly law-abiding and wholly free. Can it be that Socrates and the creators of the central Western tradition in ethics and politics who followed him have been mistaken, for more than two millennia, that virtue is not knowledge, nor freedom identical with either? That despite the fact that it rules the lives of more men than ever before in its long history, not one of the basic assumptions of this famous view is demonstrable, or, perhaps, even true?
VI
The search for status.
There is yet another historically important approach to this topic, which, by confounding liberty with her sisters, equality and fraternity, leads to similarly illiberal conclusions. Ever since the issue was raised towards the end of the eighteenth century, the question of what is meant by 'an individual' has been asked persistently, and with increasing effect. In so far as I live in society, everything that I do inevitably affects, and is affected by, what others do. Even Mill's strenuous effort to mark the distinction between the spheres of private and social life breaks down under examination. Virtually all Mill's critics have pointed out that everything that I do may have results which will harm other human beings. Moreover, I am a social being in a deeper sense than that of interaction with others. For am I not what I am, to some degree, in virtue of what others think and feel me to be? When I ask myself what I am, and answer: an Englishman, a Chinese, a merchant, a man of no importance, a millionaire, a convict - I find upon analysis that to possess these attributes entails being recognised as belonging to a particular group or class by other persons in my society, and that this recognition is part of the meaning of most of the terms that denote some of my most personal and permanent characteristics. I am not disembodied reason. Nor am I Robinson Crusoe, alone upon his island. It is not only that my material life depends upon interaction with other men, or that I am what I am as a result of social forces, but that some, perhaps all, of my ideas about myself, in particular my sense of my own moral and social identity, are intelligible only in terms of the social network in which I am (the metaphor must not be pressed too far) an element.
The lack of freedom about which men or groups complain amounts, as often as not, to the lack of proper recognition. I may be seeking not for what Mill would wish me to seek, namely security from coercion, arbitrary arrest, tyranny, deprivation of certain opportunities of action, or for room within which I am legally accountable to no one for my movements. Equally, I may not be seeking for a rational plan of social life, or the self-perfection of a dispassionate sage. What I may seek to avoid is simply being ignored, or patronised, or despised, or being taken too much for granted - in short, not being treated as an individual, having my uniqueness insufficiently recognised, being classed as a member of some featureless amalgam, a statistical unit without identifiable, specifically human features and purposes of my own. This is the degradation that I am fighting against - I am not seeking equality of legal rights, nor liberty to do as I wish (although I may want these too), but a condition in which I can feel that I am, because I am taken to be, a responsible agent, whose will is taken into consideration because I am entitled to it, even if I am attacked and persecuted for being what I am or choosing as I do.
This is a hankering after status and recognition: The poorest he that is in England hath a life to live as the greatest he.’48 I desire to be understood and recognised, even if this means to be 48 Thomas Rainborow, speaking at Putney in 1647: p. 301 in The Clarke Papers: Selections from the Papers of William Clarke, ed. C. H. Firth, vol. I ([London], 1891).
23
unpopular and disliked. And the only persons who can so recognise me, and thereby give me the sense of being someone, are the members of the society to which, historically, morally, economically, and perhaps ethnically, I feel that I belong.49 My individual self is not something which I can detach from my relationship with others, or from those attributes of myself which consist in their attitude towards me. Consequently, when I demand to be liberated from, let us say, the status of political or social dependence, what I demand is an alteration of the attitude towards me of those whose opinions and behaviour help to determine my own image of myself.
And what is true of the individual is true of groups, social, political, economic, religious, that is, of men conscious of needs and purposes which they have as members of such groups. What oppressed classes or nationalities, as a rule, demand is neither simply unhampered liberty of action for their members, nor, above everything, equality of social or economic opportunity, still less assignment of a place in a frictionless, organic State devised by the rational lawgiver. What they want, as often as not, is simply recognition (of their class or nation, or colour or race) as an independent source of human activity, as an entity with a will of its own, intending to act in accordance with it (whether it is good or legitimate, or not), and not to be ruled, educated, guided, with however light a hand, as being not quite fully human, and therefore not quite fully free.
This gives a far wider than a purely rationalist sense to Kant's remark that paternalism is 'the greatest despotism imaginable'. Paternalism is despotic, not because it is more oppressive than naked, brutal, unenlightened tyranny, nor merely because it ignores the transcendental reason embodied in me, but because it is an insult to my conception of myself as a human being, determined to make my own life in accordance with my own (not necessarily rational or benevolent) purposes, and, above all, entitled to be recognised as such by others. For if I am not so recognised, then I may fail to recognise, I may doubt, my own claim to be a fully independent human being. For what I am is, in large part, determined by what I feel and think; and what I feel and think is determined by the feeling and thought prevailing in the society to which I belong, of which, in Burke's sense, I form not an isolable atom, but an ingredient (to use a perilous but indispensable metaphor) in a social pattern. I may feel unfree in the sense of not being recognised as a self- governing individual human being; but I may feel it also as a member of an unrecognised or insufficiently respected group: then I wish for the emancipation of my entire class, or community, or nation, or race, or profession. So much can I desire this, that I may, in my bitter longing for status, prefer to be bullied and misgoverned by some member of my own race or social class, by whom I am, nevertheless, recognised as a man and a rival - that is as an equal - to being well and tolerantly treated by someone from some higher and remoter group, someone who does not recognise me for what I wish to feel myself to be.
This is the heart of the great cry for recognition on the part of both individuals and groups, and, in our own day, of professions and classes, nations and races. Although I may not get 'negative' liberty at the hands of the members of my own society, yet they are members of my own group; they understand me, as I understand them; and this understanding creates within me the sense of being
49 This has an obvious affinity with Kant's doctrine of human freedom; but it is a socialised and empirical version of il, and therefore almost its opposite. Kant's free man needs no public recognition for his inner freedom. If he is treated as a means to some external purpose, that is a wrong action on the part of his exploiters, but his own 'noumenal' status is untouched, and he is fully free, and fully a man, however he may be treated. The need spoken of here is bound up wholly with the relation that I have with others; I am nothing if I am unrecognised. I cannot ignore the attitude of others with Byronic disdain, fully conscious of my own intrinsic worth and vocation, or escape into my inner life, for I am in my own eyes as others see me. I identify myself with the point of view of my milieu: I feel myself to be somebody or nobody in terms of my position and function in the social whole; this is the most 'heteronomous' condition imaginable.
24
somebody in the world. It is this desire for reciprocal recognition that leads the most authoritarian democracies to be, at times, consciously preferred by their members to the most enlightened oligarchies, or sometimes causes a member of some newly liberated Asian or African State to complain less today, when he is rudely treated by members of his own race or nation, than when he was governed by some cautious, just, gentle, well-meaning administrator from outside. Unless this phenomenon is grasped, the ideals and behaviour of entire peoples who, in Mill's sense of the word, suffer deprivation of elementary human rights, and who, with every appearance of sincerity, speak of enjoying more freedom than when they possessed a wider measure of these rights, becomes an unintelligible paradox.
Yet it is not with individual liberty, in either the 'negative' or the 'positive' sense of the word, that this desire for status and recognition can easily be identified. It is something no less profoundly needed and passionately fought for by human beings -it is something akin to, but not itself, freedom; although it entails negative freedom for the entire group, it is more closely related to solidarity, fraternity, mutual understanding, need for association on equal terms, all of which are sometimes - but misleadingly -called social freedom. Social and political terms are necessarily vague. The attempt to make the vocabulary of politics too precise may render it useless. But it is no service to the truth to loosen usage beyond necessity. The essence of the notion of liberty, in both the 'positive' and the 'negative' senses, is the holding off of something or someone - of others who trespass on my field or assert their authority over me, or of obsessions, fears, neuroses, irrational forces - intruders and despots of one kind or another. The desire for recognition is a desire for something different: for union, closer understanding, integration of interests, a life of common dependence and common sacrifice. It is only the confusion of desire for liberty with this profound and universal craving for status and understanding, further confounded by being identified with the notion of social self- direction, where the self to be liberated is no longer the individual but the 'social whole', that makes it possible for men, while submitting to the authority of oligarchs or dictators, to claim that this in some sense liberates them.
Much has been written on the fallacy of regarding social groups as being literally persons or selves, whose control and discipline of their members is no more than self-discipline, voluntary self- control which leaves the individual agent free. But even on the 'organic' view, would it be natural or desirable to call the demand for recognition and status a demand for liberty in some third sense? It is true that the group from which recognition is sought must itself have a sufficient measure of 'negative' freedom - from control by any outside authority - otherwise recognition by it will not give the claimant the status he seeks. But is the struggle for higher status, the wish to escape from an inferior position, to be called a struggle for liberty? Is it mere pedantry to confine this word to the main senses discussed above, or are we, as I suspect, in danger of calling any improvement of his social situation favoured by a human being an increase of his liberty, and will this not render this term so vague and distended as to make it virtually useless? And yet we cannot simply dismiss this case as a mere confusion of the notion of freedom with that of status, or solidarity, or fraternity, or equality, or some combination of these. For the craving for status is, in certain respects, very close to the desire to be an independent agent.
We may refuse this goal the title of liberty; yet it would be a shallow view that assumed that analogies between individuals and groups, or organic metaphors, or several senses of the word 'liberty', are mere fallacies, due either to assertions of likeness between entities in respects in which they are unlike, or simple semantic confusion. What is wanted by those who are prepared to barter their own and others' liberty of individual action for the status of their group, and their own status within the group, is not simply a surrender of liberty for the sake of security, of some assured place
25
in a harmonious hierarchy in which all men and all classes know their place, and are prepared to exchange the painful privilege of choosing - 'the burden of freedom' - for the peace and comfort and relative mindlessness of an authoritarian or totalitarian structure. No doubt there are such men and such desires, and no doubt such surrenders of individual liberty can occur, and, indeed, have often occurred. But it is a profound misunderstanding of the temper of our times to assume that this is what makes nationalism or Marxism attractive to nations which have been ruled by alien masters, or to classes whose lives were directed by other classes in a semi-feudal, or some other hierarchically organised, regime. What they seek is more akin to what Mill called 'pagan self-assertion', but in a collective, socialised form. Indeed, much of what he says about his own reasons for desiring liberty - the value that he puts on boldness and non-conformity, on the assertion of the individual's own values in the face of the prevailing opinion, on strong and self-reliant personalities free from the leading-strings of the official lawgivers and instructors of society - has little enough to do with his conception of freedom as non-interference, but a great deal with the desire of men not to have their personalities set at too low a value, assumed to be incapable of autonomous, original, 'authentic' behaviour, even if such behaviour is to be met with opprobrium, or social restrictions, or inhibitive legislation.
This wish to assert the 'personality' of my class, or group or nation, is connected both with the answer to the question 'What is to be the area of authority?' (for the group must not be interfered with by outside masters), and, even more closely, with the answer to the question 'Who is to govern us?' - govern well or badly, liberally or oppressively, but above all 'Who?' And such answers as 'Representatives elected by my own and others' untrammelled choice', or 'All of us gathered together in regular assemblies', or 'The best', or 'The wisest', or 'The nation as embodied in these or those persons or institutions', or 'The divine leader' are answers that are logically, and at times also politically and socially, independent of what extent of 'negative' liberty I demand for my own or my group's activities. Provided the answer to 'Who shall govern me?' is somebody or something which I can represent as 'my own', as something which belongs to me, or to whom I belong, I can, by using words which convey fraternity and solidarity, as well as some part of the connotation of the 'positive' sense of the word 'freedom' (which it is difficult to specify more precisely), describe it as a hybrid form of freedom; at any rate as an ideal which is perhaps more prominent than any other in the world today, yet one which no existing term seems precisely to fit. Those who purchase it at the price of their 'negative', Millian freedom certainly claim to be 'liberated' by this means, in this confused, but
ardently felt, sense. 'Whose service is perfect freedom' can in this way be secularised, and the State, or the nation, or the race, or an assembly, or a dictator, or my family or milieu, or I myself, can be substituted for the Deity, without thereby rendering the word 'freedom' wholly meaningless.50
No doubt every interpretation of the word 'liberty', however unusual, must include a minimum of what I have called 'negative' liberty. There must be an area within which I am not frustrated. No society literally suppresses all the liberties of its members; a being who is prevented
50 This argument should be distinguished from the traditional approach of some of the disciples of Burke or Hegel, who say that, since I am made what I am by society or history, to escape from them is impossible and to attempt it irrational. No doubt I cannot leap out of my skin, or breathe outside my proper element; it is a mere tautology to say that I am what I am, and cannot want to be liberated from my essential characteristics, some of which are social. But it does not follow that all my attributes are intrinsic and inalienable, and that I cannot seek to alter my status within the 'social network', or 'cosmic web', which determines my nature; if this were the case, no meaning could be attached to such words as 'choice' or 'decision' or 'activity'. If they are to mean anything, attempts to protect myself against authority, or even to escape from my 'station and its duties', cannot be excluded as automatically irrational or suicidal.
26
by others from doing anything at all on his own is not a moral agent at all, and could not either legally or morally be regarded as a human being, even if a physiologist or a biologist, or even a psychologist, felt inclined to classify him as a man. But the fathers of liberalism - Mill and Constant - want more than this minimum: they demand a maximum degree of non-interference compatible with the minimum demands of social life. It seems unlikely that this extreme demand for liberty has ever been made by any but a small minority of highly civilised and self-conscious human beings. The bulk of humanity has certainly at most times been prepared to sacrifice this to other goals: security, status, prosperity, power, virtue, rewards in the next world; or justice, equality, fraternity, and many other values which appear wholly, or in part, incompatible with the attainment of the greatest degree of individual liberty, and certainly do not need it as a precondition for their own realisation. It is not a demand for Lebensraum for each individual that has stimulated the rebellions and wars of liberation for which men have been ready to die in the past, or, indeed, in the present. Men who have fought for freedom have commonly fought for the right to be governed by themselves or their representatives - sternly governed, if need be, like the Spartans, with little individual liberty, but in a manner which allowed them to participate, or at any rate to believe that they were participating, in the legislation and administration of their collective lives. And men who have made revolutions have, as often as not, meant by liberty no more than the conquest of power and authority by a given sect of believers in a doctrine, or by a class, or by some other social group, old or new. Their victories certainly frustrated those whom they ousted, and sometimes repressed, enslaved or exterminated vast numbers of human beings. Yet such revolutionaries have usually felt it necessary to argue that, despite this, they represented the party of liberty, or 'true' liberty, by claiming universality for their ideal, which the 'real selves' of even those who resisted them were also alleged to be seeking, although they were held to have lost the way to the goal, or to have mistaken the goal itself owing to some moral or spiritual blindness. All this has little to do with Mill's notion of liberty as limited only by the danger of doing harm to others. It is the non- recognition of this psychological and political fact (which lurks behind the apparent ambiguity of the term 'liberty') that has, perhaps, blinded some contemporary liberals to the world in which they live. Their plea is clear, their cause is just. But they do not allow for the variety of basic human needs. Nor yet for the ingenuity with which men can prove to their own satisfaction that the road to one ideal also leads to its contrary.
VII
Liberty and sovereignty. The French Revolution, like all great revolutions, was, at least in its Jacobin form, just such
an eruption of the desire for ‘positive’ freedom of collective self-direction on the part of a large body of Frenchmen who felt liberated as a nation, even though the result was, for a good many of them, a severe restriction of individual freedoms. Rousseau had spoken exultantly of the fact that the laws of liberty might prove to be more austere than the yoke of tyranny. Tyranny is service to human masters. The law cannot be a tyrant. Rousseau does not mean by liberty the 'negative' freedom of the individual not to be interfered with within a defined area, but the possession by all, and not merely by some, of the fully qualified members of a society of a share in the public power which is entitled to interfere with every aspect of every citizen's life. The liberals of the first half of the nineteenth century correctly foresaw that liberty in this 'positive' sense could easily destroy too many of the 'negative' liberties that they held sacred. They pointed out that the sovereignty of the people could easily destroy that of individuals. Mill explained, patiently and unanswerably, that government by the people was not, in his sense, necessarily freedom at all. For those who govern are not necessarily the same 'people' as those who are governed, and democratic self-government is not
27
the government 'of each by himself, but, at best, 'of each by all the rest’.51 Mill and his disciples spoke of 'the tyranny of the majority' and of the tyranny of 'the prevailing opinion and feeling',52 and saw no great difference between that and any other kind of tyranny which encroaches upon men's activities beyond the sacred frontiers of private life.
No one saw the conflict between the two types of liberty better, or expressed it more clearly, than Benjamin Constant. He pointed out that the transference by a successful rising of unlimited authority, commonly called sovereignty, from one set of hands to another does not increase liberty, but merely shifts the burden of slavery. He reasonably asked why a man should deeply care whether he is crushed by a popular government or by a monarch, or even by a set of oppressive laws. He saw that the main problem for those who desire 'negative', individual freedom is not who wields this authority, but how much authority should be placed in any set of hands. For unlimited authority in anybody's grasp was bound, he believed, sooner or later, to destroy somebody. He maintained that usually men protested against this or that set of governors as oppressive, when the real cause of oppression lay in the mere fact of the accumulation of power itself, wherever it might happen to be, since liberty was endangered by the mere existence of absolute authority as such. 'It is not against the arm that one must rail,' he wrote, 'but against the weapon. Some weights are too heavy for the human hand.’53 Democracy may disarm a given oligarchy, a given privileged individual or set of individuals, but it can still crush individuals as mercilessly as any previous ruler. An equal right to oppress - or interfere - is not equivalent to liberty.
Nor does universal consent to loss of liberty somehow miraculously preserve it merely by being universal, or by being consent. If I consent to be oppressed, or acquiesce in my condition with detachment or irony, am I the less oppressed? If I sell myself into slavery, am I the less a slave? If I commit suicide, am I the less dead because I have taken my own life freely? 'Popular government is merely a spasmodic tyranny, monarchy a more centralised despotism.’ 54 Constant saw in Rousseau the most dangerous enemy of individual liberty, because he had declared that 'In giving myself to all, I give myself to none.’55 Constant could not see why, even though the sovereign is 'everybody', it should not oppress one of the 'members' of its indivisible self, if it so decided. I may, of course, prefer to be deprived of my liberties by an assembly, or a family, or a class in which I am a minority. It may give me an opportunity one day of persuading the others to do for me that to which I feel I am entitled. But to be deprived of my liberty at the hands of my family or friends or fellow citizens is to be deprived of it just as effectively. Hobbes was at any rate more candid: he did not pretend that a sovereign does not enslave; he justified this slavery, but at least did not have the effrontery to call it freedom.
Throughout the nineteenth century liberal thinkers maintained that if liberty involved a limit upon the powers of any man to force me to do what I did not, or might not, wish to do, then, whatever the ideal in the name of which I was coerced, I was not free; that the doctrine of absolute sovereignty was a tyrannical doctrine in itself. If I wish to preserve my liberty, it is not enough to say that it must not be violated unless someone or other - the absolute ruler, or the popular assembly, or the King in Parliament, or the judges, or some combination of authorities, or the laws themselves (for the laws may be oppressive) - authorizes its violation. I must establish a society in which there must be some frontiers of freedom which nobody should be permitted to cross. Different names or 51 op. cit. (p. 199 above, note i), p. 219. 52 ibid., pp. 219-20. 53 op. cit. (p. 198 above, note i), p. 270. 54 ibid., p. 274. 55 loc. cit. Co. 210 above, note 4); cf. Constant, ibid., p. 272.
28
natures may be given to the rules that determine these frontiers: they may be called natural rights, or the word of God, or natural law, or the demands of utility or of the 'permanent interests of man'; I may believe them to be valid a priori, or assert them to be my own ultimate ends, or the ends of my society or culture. What these rules or commandments will have in common is that they are accepted so widely, and are grounded so deeply in the actual nature of men as they have developed through history, as to be, by now, an essential part of what we mean by being a normal human being. Genuine belief in the inviolability of a minimum extent of individual liberty entails some such absolute stand. For it is clear that it has little to hope for from the rule of majorities; democracy as such is logically uncommitted to it, and historically has at times failed to protect it, while remaining faithful to its own principles. Few governments, it has been observed, have found much difficulty in causing their subjects to generate any will that the government wanted. The triumph of despotism is to force the slaves to declare themselves free. It may need no force; the slaves may proclaim their freedom quite sincerely: but they are none the less slaves. Perhaps the chief value for liberals of political -'positive' - rights, of participating in the government, is as a means for protecting what they hold to be an ultimate value, namely individual - 'negative' - liberty.
But if democracies can, without ceasing to be democratic, suppress freedom, at least as liberals have used the word, what would make a society truly free? For Constant, Mill, Tocqueville, and the liberal tradition to which they belong, no society is free unless it is governed by at any rate two interrelated principles: first, that no power, but only rights, can be regarded as absolute, so that all men, whatever power governs them, have an absolute right to refuse to behave inhumanly; and, second, that there are frontiers, not artificially drawn, within which men should be inviolable, these frontiers being defined in terms of rules so long and widely accepted that their observance has entered into the very conception of what it is to be a normal human being, and, therefore, also of what it is to act inhumanly or insanely; rules of which it would be absurd to say, for example, that they could be abrogated by some formal procedure on the part of some court or sovereign body. When I speak of a man as being normal, a part of what I mean is that he could not break these rules easily, without a qualm of revulsion. It is such rules as these that are broken when a man is declared guilty without trial, or punished under a retroactive law; when children are ordered to denounce their parents, friends to betray one another, soldiers to use methods of barbarism; when men are tortured or murdered, or minorities are massacred because they irritate a majority or a tyrant. Such acts, even if they are made legal by the sovereign, cause horror even in these days, and this springs from the recognition of the moral validity - irrespective of the laws - of some absolute barriers to the imposition of one man's will on another. The freedom of a society, or a class or a group, in this sense of freedom, is measured by the strength of these barriers, and the number and importance of the paths which they keep open for their members - if not for all, for at any rate a great number of them.56
This is almost at the opposite pole from the purposes of those who believe in liberty in the 'positive' - self-directive - sense. The former want to curb authority as such. The latter want it placed in their own hands. That is a cardinal issue. These are not two different interpretations of a single concept, but two profoundly divergent and irreconcilable attitudes to the ends of life. It is as well to recognise this, even if in practice it is often necessary to strike a compromise between them. For each of them makes absolute claims. These claims cannot both be fully satisfied. But it is a profound lack of social and moral understanding not to recognise that the satisfaction that each of them seeks 56 In Great Britain such legal power is, of course, constitutionally vested in the absolute sovereign - the King in Parliament. What makes this country comparatively free, therefore, is the fact that this theoretically omnipotent entity is restrained by custom or opinion from behaving as such. It is clear that what matters is not the form of these restraints on power - whether they are legal, or moral, or constitutional - but their effectiveness.
29
is an ultimate value which, both historically and morally, has an equal right to be classed among the deepest interests of mankind.
VIII
The One and the Many
One belief, more than any other, is responsible for the slaughter of individuals on the altars of the great historical ideals - justice or progress or the happiness of future generations, or the sacred mission or emancipation of a nation or race or class, or even liberty itself, which demands the sacrifice of individuals for the freedom of society. This is the belief that somewhere, in the past or in the future, in divine revelation or in the mind of an individual thinker, in the pronouncements of history or science, or in the simple heart of an uncorrupted good man, there is a final solution. This ancient faith rests on the conviction that all the positive values in which men have believed must, in the end, be compatible, and perhaps even entail one another. 'Nature binds truth, happiness and virtue together by an indissoluble chain', said one of the best men who ever lived, and spoke in similar terms of liberty, equality and justice.57
But is this true? It is a commonplace that neither political equality nor efficient organisation nor social justice is compatible with more than a modicum of individual liberty, and certainly not with unrestricted laissez-faire; that justice and generosity, public and private loyalties, the demands of genius and the claims of society can conflict violently with each other. And it is no great way from that to the generalisation that not all good things are compatible, still less all the ideals of mankind. But somewhere, we shall be told, and in some way, it must be possible for all these values to live together, for unless this is so, the universe is not a cosmos, not a harmony; unless this is so, conflicts of values may be an intrinsic, irremovable element in human life. To admit that the fulfillment of some of our ideals may in principle make the fulfillment of others impossible is to say that the notion of total human fulfillment is a formal contradiction, a metaphysical chimera. For every rationalist metaphysician, from Plato to the last disciples of Hegel or Marx, this abandonment of the notion of a final harmony in which all riddles are solved, all contradictions reconciled, is a piece of crude empiricism, abdication before brute facts, intolerable bankruptcy of reason before things as they are, failure to explain and to justify, to reduce everything to a system, which ‘reason’ indignantly rejects.
But if we are not armed with an a priori guarantee of the proposition that a total harmony of true values is somewhere to be found - perhaps in some ideal realm the characteristics of which we can, in our finite state, not so much as conceive - we must fall back on the ordinary resources of empirical observation and ordinary human knowledge. And these certainly give us no warrant for supposing (or even understanding what would be meant by saying) that all good things, or all bad things for that matter, are reconcilable with each other. The world that we encounter in ordinary experience is one in which we are faced with choices between ends equally ultimate, and claims 57 Condorcet, from whose Esquisse these words are quoted (loc. cit.: see p. 136 above, note i), declares that the task of social science is to show 'by what bonds nature has united the progress of enlightenment with that of liberty, virtue and respect for the natural rights of man; how these ideals, which alone are truly good, yet so often separated from each other that they are even believed to be incompatible, should, on the contrary, become inseparable, as soon as enlighten- ment has reached a certain level simultaneously among a large number of nations'. He goes on to say that 'Men still preserve the errors of their childhood, of their country and of their age long after having recognised all the truths needed for destroying them.' ibid., pp. 9, 10. Ironically enough, his belief in the need for and possibility of uniting all good things may well be precisely the kind of error he himself so well described.
30
equally absolute, the realisation of some of which must inevitably involve the sacrifice of others. Indeed, it is because this is their situation that men place such immense value upon the freedom to choose; for if they had assurance that in some perfect state, realisable by men on earth, no ends pursued by them would ever be in conflict, the necessity and agony of choice would disappear, and with it the central importance of the freedom to choose. Any method of bringing this final state nearer would then seem fully justified, no matter how much freedom were sacrificed to forward its advance.
It is, I have no doubt, some such dogmatic certainty that has been responsible for the deep, serene, unshakeable conviction in the minds of some of the most merciless tyrants and persecutors in history that what they did was fully justified by its purpose. I do not say that the ideal of self- perfection - whether for individuals or nations or Churches or classes - is to be condemned in itself, or that the language which was used in its defence was in all cases the result of a confused or fraudulent use of words, or of moral or intellectual perversity. Indeed, I have tried to show that it is the notion of freedom in its 'positive' sense that is at the heart of the demands for national or social self-direction which animate the most powerful and morally just public movements of our time, and that not to recognise this is to misunderstand the most vital facts and ideas of our age. But equally it seems to me that the belief that some single formula can in principle be found whereby all the diverse ends of men can be harmoniously realised is demonstrably false. If, as I believe, the ends of men are many, and not all of them are in principle compatible with each other, then the possibility of conflict - and of tragedy - can never wholly be eliminated from human life, either personal or social. The necessity of choosing between absolute claims is then an inescapable characteristic of the human condition. This gives its value to freedom as Acton conceived of it - as an end in itself, and not as a temporary need, arising out of our confused notions and irrational and disordered lives, a predicament which a panacea could one day put right.
I do not wish to say that individual freedom is, even in the most liberal societies, the sole, or even the dominant, criterion of social action. We compel children to be educated, and we forbid public executions. These are certainly curbs to freedom. We justify them on the ground that ignorance, or a barbarian upbringing, or cruel pleasures and excitements are worse for us than the amount of restraint needed to repress them. This judgment in turn depends on how we determine good and evil, that is to say, on our moral, religious, intellectual, economic and aesthetic values; which are, in their turn, bound up with our conception of man, and of the basic demands of his nature. In other words, our solution of such problems is based on our vision, by which we are consciously or unconsciously guided, of what constitutes a fulfilled human life, as contrasted with Mill's 'cramped and dwarfed', 'pinched and hidebound' natures. To protest against the laws governing censorship or personal morals as intolerable infringements of personal liberty presupposes a belief that the activities which such laws forbid are fundamental needs of men as men, in a good (or, indeed, any) society. To defend such laws is to hold that these needs are not essential, or that they cannot be satisfied without sacrificing other values which come higher - satisfy deeper needs - than individual freedom, determined by some standard that is not merely subjective, a standard for which some objective status - empirical or a priori - is claimed.
The extent of a man's, or a people's, liberty to choose to live as he or they desire must be weighed against the claims of many other values, of which equality, or justice, or happiness, or security, or public order are perhaps the most obvious examples. For this reason, it cannot be unlimited. We are rightly reminded by R. H. Tawney that the liberty of the strong, whether their strength is physical or economic, must be restrained. This maxim claims respect, not as a consequence of some a priori rule, whereby the respect for the liberty of one man logically entails
31
respect for the liberty of others like him; but simply because respect for the principles of justice, or shame at gross inequality of treatment, is as basic in men as the desire for liberty. That we cannot have everything is a necessary, not a contingent, truth. Burke's plea for the constant need to compensate, to reconcile, to balance; Mill’s plea for novel ‘experiments in living’ with their permanent possibility of error - the knowledge that it is not merely in practice but in principle impossible to reach clear-cut and certain answers, even in an ideal world of wholly good and rational men and wholly clear ideas - may madden those who seek for final solutions and single, all- embracing systems, guaranteed to be eternal. Nevertheless, it is a conclusion that cannot be escaped by those who, with Kant, have learnt the truth that 'Out of the crooked timber of humanity no straight thing was ever made’58
There is little need to stress the fact that monism, and faith in a single criterion, has always proved a deep source of satisfaction both to the intellect and to the emotions. Whether the standard of judgement derives from the vision of some future perfection, as in the minds of the philosophes in the eighteenth century and their technocratic successors in our own day, or is rooted in the past - la terre et les morts - as maintained by German historicists or French theocrats, or neo-Conservatives in English-speaking countries, it is bound, provided it is inflexible enough, to encounter some unforeseen and unforeseeable human development, which it will not fit;
and will then be used to justify the a priori barbarities of Procrustes - the vivisection of actual human societies into some fixed pattern dictated by our fallible understanding of a largely imaginary past or a wholly imaginary future. To preserve our absolute categories or ideals at the expense of human lives offends equally against the principles of science and of history; it is an attitude found in equal measure on the right and left wings in our days, and is not reconcilable with the principles accepted by those who respect the facts.
Pluralism, with the measure of 'negative' liberty that it entails, seems to me a truer and more humane ideal than the goals of those who seek in the great disciplined, authoritarian structures the ideal of 'positive' self-mastery by classes, or peoples, or the whole of mankind. It is truer, because it does, at least, recognise the fact that human goals are many, not all of them commensurable, and in perpetual rivalry with one another. To assume that all values can be graded on one scale, so that it is a mere matter of inspection to determine the highest, seems to me to falsify our knowledge that men are free agents, to represent moral decision as an operation which a slide-rule could, in principle, perform. To say that in some ultimate, all-reconciling, yet realisable synthesis duty is interest, or individual freedom is pure democracy or an authoritarian State, is to throw a metaphysical blanket over either self-deceit or deliberate hypocrisy. It is more humane because it does not (as the system- builders do) deprive men, in the name of some remote, or incoherent, ideal, of much that they have found to be indispensable to their life as unpredictably self-transforming human beings.59 In the end, men choose between ultimate values; they choose as they do because their life and thought are determined by fundamental moral categories and concepts that are, at any rate over large stretches of time and space, a part of their being and thought and sense of their own identity; part of what makes them human.
58 Loc. Cit. (p. 16 above, note 1). 59 On this also Bentham seems to me to have spoken well: 'Individual interests are the only real interests .. . Can it be conceived that there are men so absurd as to ... prefer the man who is not, to him who is; to torment the living, under pretence of promoting the happiness of those who are not born, and who may never be born?' op. cit. (p. 219 above, note 3), p. 321. This is one of the infrequent occasions when Burke agrees with Bentham; for this passage is at the heart of the empirical, as against the metaphysical, view of politics.
32
It may be that the ideal of freedom to choose ends without claiming eternal validity for them, and the pluralism of values connected with this, is only the late fruit of our declining capitalist civilisation: an ideal which remote ages and primitive societies have not recognised, and one which posterity will regard with curiosity, even sympathy, but little comprehension. This may be so; but no skeptical conclusions seem to me to follow. Principles are not less sacred because their duration cannot be guaranteed. Indeed, the very desire for guarantees that our values are eternal and secure in some objective heaven is perhaps only a craving for the certainties of childhood or the absolute values of our primitive past. 'To realise the relative validity of one's convictions', said an admirable writer of our time, 'and yet stand for them unflinchingly is what distinguishes a civilised man from a barbarian.’60 To demand more than this is perhaps a deep and incurable metaphysical need; but to allow it to determine one's practice is a symptom of an equally deep, and more dangerous, moral and political immaturity.
60 Joseph A. Schumpeter, Capitalism, Socialism, and Democracy (London, 1943). p. 243.
__MACOSX/Freedom, Privacy and Tech./._Berlin%20two%20concepts%20of%20liberty.pdf
Freedom, Privacy and Tech./Brain%20on%20the%20Stand%20Rosen%20NYTimes3-07.pdf
Copyright 2007 The New York Times Company
The New York Times
March 11, 2007 Sunday Late Edition - Final
SECTION: Section 6; Column 3; Magazine; Pg. 49 LENGTH: 7726 words HEADLINE : The Brain on the Stand BYLINE: By Jeffrey Rosen. Jeffrey Rosen, a frequent contributor, is the author most recently of ''The Supreme Court: The Personalities and Rivalries That Defined America.'' I. Mr. Weinstein's Cyst When historians of the future try to identify the moment that neuroscience began to transform the American legal system, they may point to a little- noticed case from the early 1990s. The case involved Herbert Weinstein, a 65-year-old ad executive who was charged with strangling his wife, Barbara, to death and then, in an effort to make the murder look like a suicide, throwing her body out the window of their 12th-floor apartment on East 72nd Street in Manhattan. Before the trial began, Weinstein's lawyer suggested that his client should not be held responsible for his actions because of a mental defect -- namely, an abnormal cyst nestled in his arachnoid membrane, which surrounds the brain like a spider web. The implications of the claim were considerable. American law holds people criminally responsible unless they act under duress (with a gun pointed at the head, for example) or if they suffer from a serious defect in rationality -- like not being able to tell right from wrong. But if you suffer from such a serious defect, the law generally doesn't care why -- whether it's an unhappy childhood or an arachnoid cyst or both. To suggest that criminals could be excused because their brains made them do it seems to imply that anyone whose brain isn't functioning properly could be absolved of responsibility. But should judges and juries really be in the business of defining the normal or properly working brain? And since all behavior is caused by our brains, wouldn't this mean all behavior could potentially be excused? The prosecution at first tried to argue that evidence of Weinstein's arachnoid cyst shouldn't be admitted in court. One of the government's witnesses, a forensic psychologist named Daniel Martell, testified that brain-scanning technologies were new and untested, and their implications weren't yet widely accepted by the scientific community. Ultimately, on Oct. 8, 1992, Judge Richard Carruthers issued a Solomonic ruling: Weinstein's lawyers could tell the jury that brain scans had identified an arachnoid
cyst, but they couldn't tell jurors that arachnoid cysts were associated with violence. Even so, the prosecution team seemed to fear that simply exhibiting images of Weinstein's brain in court would sway the jury. Eleven days later, on the morning of jury selection, they agreed to let Weinstein plead guilty in exchange for a reduced charge of manslaughter. After the Weinstein case, Daniel Martell found himself in so much demand to testify as a expert witness that he started a consulting business called Forensic Neuroscience. Hired by defense teams and prosecutors alike, he has testified over the past 15 years in several hundred criminal and civil cases. In those cases, neuroscientific evidence has been admitted to show everything from head trauma to the tendency of violent video games to make children behave aggressively. But Martell told me that it's in death-penalty litigation that neuroscience evidence is having its most revolutionary effect. ''Some sort of organic brain defense has become de rigueur in any sort of capital defense,'' he said. Lawyers routinely order scans of convicted defendants' brains and argue that a neurological impairment prevented them from controlling themselves. The prosecution counters that the evidence shouldn't be admitted, but under the relaxed standards for mitigating evidence during capital sentencing, it usually is. Indeed, a Florida court has held that the failure to admit neuroscience evidence during capital sentencing is grounds for a reversal. Martell remains skeptical about the worth of the brain scans, but he observes that they've ''revolutionized the law.'' The extent of that revolution is hotly debated, but the influence of what some call neurolaw is clearly growing. Neuroscientific evidence has persuaded jurors to sentence defendants to life imprisonment rather than to death; courts have also admitted brain- imaging evidence during criminal trials to support claims that defendants like John W. Hinckley Jr., who tried to assassinate President Reagan, are insane. Carter Snead, a law professor at Notre Dame, drafted a staff working paper on the impact of neuroscientific evidence in criminal law for President Bush's Council on Bioethics. The report concludes that neuroimaging evidence is of mixed reliability but ''the large number of cases in which such evidence is presented is striking.'' That number will no doubt increase substantially. Proponents of neurolaw say that neuroscientific evidence will have a large impact not only on questions of guilt and punishment but also on the detection of lies and hidden bias, and on the prediction of future criminal behavior. At the same time, skeptics fear that the use of brain-scanning technology as a kind of super mind-reading device will threaten our privacy and mental freedom, leading some to call for the legal system to respond with a new concept of ''cognitive liberty.'' One of the most enthusiastic proponents of neurolaw is Owen Jones, a professor of law and biology at Vanderbilt. Jones (who happens to have been one of my law-school classmates) has joined a group of prominent neuroscientists and law professors who have applied for a large MacArthur Foundation grant; they hope to study a wide range of neurolaw questions, like: Do sexual offenders and violent teenagers show unusual patterns of brain activity? Is it possible to capture brain images of chronic neck pain when someone claims to have suffered whiplash? In the meantime, Jones is turning Vanderbilt into a kind of Los Alamos for neurolaw. The university has just opened a $27
million neuroimaging center and has poached leading neuroscientists from around the world; soon, Jones hopes to enroll students in the nation's first program in law and neuroscience. ''It's breathlessly exciting,'' he says. ''This is the new frontier in law and science -- we're peering into the black box to see how the brain is actually working, that hidden place in the dark quiet, where we have our private thoughts and private reactions - - and the law will inevitably have to decide how to deal with this new technology.'' II. A Visit to Vanderbilt : Owen Jones is a disciplined and quietly intense man, and his enthusiasm for the transformative power of neuroscience is infectious. With Rene Marois, a neuroscientist in the psychology department, Jones has begun a study of how the human brain reacts when asked to impose various punishments. Informally, they call the experiment Harm and Punishment -- and they offered to make me one of their first subjects. We met in Jones's pristine office, which is decorated with a human skull and calipers, like those that phrenologists once used to measure the human head; his father is a dentist, and his grandfather was an electrical engineer who collected tools. We walked over to Vanderbilt's Institute of Imaging Science, which, although still surrounded by scaffolding, was as impressive as Jones had promised. The basement contains one of the few 7-tesla magnetic-resonance-imaging scanners in the world. For Harm and Punishment, Jones and Marois use a less powerful 3 tesla, which is the typical research M.R.I. We then made our way to the scanner. After removing all metal objects -- including a belt and a stray dry-cleaning tag with a staple -- I put on earphones and a helmet that was shaped like a birdcage to hold my head in place. The lab assistant turned off the lights and left the room; I lay down on the gurney and, clutching a panic button, was inserted into the magnet. All was dark except for a screen flashing hypothetical crime scenarios, like this one: ''John, who lives at home with his father, decides to kill him for the insurance money. After convincing his father to help with some electrical work in the attic, John arranges for him to be electrocuted. His father survives the electrocution, but he is hospitalized for three days with injuries caused by the electrical shock.'' I was told to press buttons indicating the appropriate level of punishment, from 0 to 9, as the magnet recorded my brain activity. After I spent 45 minutes trying not to move an eyebrow while assigning punishments to dozens of sordid imaginary criminals, Marois told me through the intercom to try another experiment: namely, to think of familiar faces and places in sequence, without telling him whether I was starting with faces or places. I thought of my living room, my wife, my parents' apartment and my twin sons, trying all the while to avoid improper thoughts for fear they would be discovered. Then the experiments were over, and I stumbled out of the magnet. The next morning, Owen Jones and I reported to Rene Marois's laboratory for the results. Marois's graduate students, who had been up late analyzing my brain, were smiling broadly. Because I had moved so little in the machine, they explained, my brain activity
was easy to read. ''Your head movement was incredibly low, and you were the harshest punisher we've had,'' Josh Buckholtz, one of the grad students, said with a happy laugh. ''You were a researcher's dream come true!'' Buckholtz tapped the keyboard, and a high- resolution 3-D image of my brain appeared on the screen in vivid colors. Tiny dots flickered back and forth, showing my eyes moving as they read the lurid criminal scenarios. Although I was only the fifth subject to be put in the scanner, Marois emphasized that my punishment ratings were higher than average. In one case, I assigned a 7 where the average punishment was 4. ''You were focusing on the intent, and the others focused on the harm,'' Buckholtz said reassuringly. Marois explained that he and Jones wanted to study the interactions among the emotion- generating regions of the brain, like the amygdala, and the prefrontal regions responsible for reason. ''It is also possible that the prefrontal cortex is critical for attributing punishment, making the essential decision about what kind of punishment to assign,'' he suggested. Marois stressed that in order to study that possibility, more subjects would have to be put into the magnet. But if the prefrontal cortex does turn out to be critical for selecting among punishments, Jones added, it could be highly relevant for lawyers selecting a jury. For example, he suggested, lawyers might even select jurors for different cases based on their different brain-activity patterns. In a complex insider-trading case, for example, perhaps the defense would ''like to have a juror making decisions on maximum deliberation and minimum emotion''; in a government entrapment case, emotional reactions might be more appropriate. We then turned to the results of the second experiment, in which I had been asked to alternate between thinking of faces and places without disclosing the order. ''We think we can guess what you were thinking about, even though you didn't tell us the order you started with,'' Marois said proudly. ''We think you started with places and we will prove to you that it wasn't just luck.'' Marois showed me a picture of my parahippocampus, the area of the brain that responds strongly to places and the recognition of scenes. ''It's lighting up like Christmas on all cylinders,'' Marois said. ''It worked beautifully, even though we haven't tried this before here.'' He then showed a picture of the fusiform area, which is responsible for facial recognition. It, too, lighted up every time I thought of a face. ''This is a potentially very serious legal implication,'' Jones broke in, since the technology allows us to tell what people are thinking about even if they deny it. He pointed to a series of practical applications. Because subconscious memories of faces and places may be more reliable than conscious memories, witness lineups could be transformed. A child who claimed to have been victimized by a stranger, moreover, could be shown pictures of the faces of suspects to see which one lighted up the face-recognition area in ways suggesting familiarity. Jones and Marois talked excitedly about the implications of their experiments for the legal system. If they discovered a significant gap between people's hard-wired sense of how severely certain crimes should be punished and the actual punishments assigned by law, federal sentencing guidelines might be revised, on the principle that the law shouldn't diverge too far from deeply shared beliefs. Experiments might help to develop a
deeper understanding of the criminal brain, or of the typical brain predisposed to criminal activity. III. The End of Responsibility?: Indeed, as the use of functional M.R.I. results becomes increasingly common in courtrooms, judges and juries may be asked to draw new and sometimes troubling lines between ''normal'' and ''abnormal'' brains. Ruben Gur, a professor of psychology at the University of Pennsylvania School of Medicine, specializes in doing just that. Gur began his expert-witness career in the mid-1990s when a colleague asked him to help in the trial of a convicted serial killer in Florida named Bobby Joe Long. Known as the ''classified-ad rapist,'' because he would respond to classified ads placed by women offering to sell household items, then rape and kill them, Long was sentenced to death after he committed at least nine murders in Tampa. Gur was called as a national expert in positron-emission tomography, or PET scans, in which patients are injected with a solution containing radioactive markers that illuminate their brain activity. After examining Long's PET scans, Gur testified that a motorcycle accident that had left Long in a coma had also severely damaged his amygdala. It was after emerging from the coma that Long committed his first rape. ''I didn't have the sense that my testimony had a profound impact,'' Gur told me recently - - Long is still filing appeals -- but he has testified at more than 20 capital cases since then. He wrote a widely circulated affidavit arguing that adolescents are not as capable of controlling their impulses as adults because the development of neurons in the prefrontal cortex isn't complete until the early 20s. Based on that affidavit, Gur was asked to contribute to the preparation of one of the briefs filed by neuroscientists and others in Roper v. Simmons, the landmark case in which a divided Supreme Court struck down the death penalty for offenders who committed crimes when they were under the age of 18. The leading neurolaw brief in the case, filed by the American Medical Association and other groups, argued that because ''adolescent brains are not fully developed'' in the prefrontal regions, adolescents are less able than adults to control their impulses and should not be held fully accountable ''for the immaturity of their neural anatomy.'' In his majority decision, Justice Anthony Kennedy declared that ''as any parent knows and as the scientific and sociological studies'' cited in the briefs ''tend to confirm, '[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults.' '' Although Kennedy did not cite the neuroscience evidence specifically, his indirect reference to the scientific studies in the briefs led some supporters and critics to view the decision as the Brown v. Board of Education of neurolaw. One important question raised by the Roper case was the question of where to draw the line in considering neuroscience evidence as a legal mitigation or excuse. Should courts be in the business of deciding when to mitigate someone's criminal responsibility because his brain functions improperly, whether because of age, in-born defects or trauma? As we learn more about criminals' brains, will we have to redefine our most basic ideas of justice? Two of the most ardent supporters of the claim that neuroscience requires the redefinition
of guilt and punishment are Joshua D. Greene, an assistant professor of psychology at Harvard, and Jonathan D. Cohen, a professor of psychology who directs the neuroscience program at Princeton. Greene got Cohen interested in the legal implications of neuroscience, and together they conducted a series of experiments exploring how people's brains react to moral dilemmas involving life and death. In particular, they wanted to test people's responses in the f.M.R.I. scanner to variations of the famous trolley problem, which philosophers have been arguing about for decades. The trolley problem goes something like this: Imagine a train heading toward five people who are going to die if you don't do anything. If you hit a switch, the train veers onto a side track and kills another person. Most people confronted with this scenario say it's O.K. to hit the switch. By contrast, imagine that you're standing on a footbridge that spans the train tracks, and the only way you can save the five people is to push an obese man standing next to you off the footbridge so that his body stops the train. Under these circumstances, most people say it's not O.K. to kill one person to save five. ''I wondered why people have such clear intuitions,'' Greene told me, ''and the core idea was to confront people with these two cases in the scanner and see if we got more of an emotional response in one case and reasoned response in the other.'' As it turns out, that's precisely what happened: Greene and Cohen found that the brain region associated with deliberate problem solving and self-control, the dorsolateral prefrontal cortex, was especially active when subjects confronted the first trolley hypothetical, in which most of them made a utilitarian judgment about how to save the greatest number of lives. By contrast, emotional centers in the brain were more active when subjects confronted the second trolley hypothetical, in which they tended to recoil at the idea of personally harming an individual, even under such wrenching circumstances. ''This suggests that moral judgment is not a single thing; it's intuitive emotional responses and then cognitive responses that are duking it out,'' Greene said. ''To a neuroscientist, you are your brain; nothing causes your behavior other than the operations of your brain,'' Greene says. ''If that's right, it radically changes the way we think about the law. The official line in the law is all that matters is whether you're rational, but you can have someone who is totally rational but whose strings are being pulled by something beyond his control.'' In other words, even someone who has the illusion of making a free and rational choice between soup and salad may be deluding himself, since the choice of salad over soup is ultimately predestined by forces hard- wired in his brain. Greene insists that this insight means that the criminal-justice system should abandon the idea of retribution -- the idea that bad people should be punished because they have freely chosen to act immorally -- which has been the focus of American criminal law since the 1970s, when rehabilitation went out of fashion. Instead, Greene says, the law should focus on deterring future harms. In some cases, he supposes, this might mean lighter punishments. ''If it's really true that we don't get any prevention bang from our punishment buck when we punish that person, then it's not worth punishing that person,'' he says. (On the other hand, Carter Snead, the Notre Dame scholar, maintains that capital defendants who are not considered fully blameworthy under current rules could be executed more readily under a system that focused on
preventing future harms.) Others agree with Greene and Cohen that the legal system should be radically refocused on deterrence rather than on retribution. Since the celebrated M'Naughten case in 1843, involving a paranoid British assassin, English and American courts have recognized an insanity defense only for those who are unable to appreciate the difference between right and wrong. (This is consistent with the idea that only rational people can be held criminally responsible for their actions.) According to some neuroscientists, that rule makes no sense in light of recent brain-imaging studies. ''You can have a horrendously damaged brain where someone knows the difference between right and wrong but nonetheless can't control their behavior,'' says Robert Sapolsky, a neurobiologist at Stanford. ''At that point, you're dealing with a broken machine, and concepts like punishment and evil and sin become utterly irrelevant. Does that mean the person should be dumped back on the street? Absolutely not. You have a car with the brakes not working, and it shouldn't be allowed to be near anyone it can hurt.'' Even as these debates continue, some skeptics contend that both the hopes and fears attached to neurolaw are overblown. ''There's nothing new about the neuroscience ideas of responsibility; it's just another material, causal explanation of human behavior,'' says Stephen J. Morse, professor of law and psychiatry at the University of Pennsylvania. ''How is this different than the Chicago school of sociology,'' which tried to explain human behavior in terms of environment and social structures? ''How is it different from genetic explanations or psychological explanations? The only thing different about neuroscience is that we have prettier pictures and it appears more scientific.'' Morse insists that ''brains do not commit crimes; people commit crimes'' -- a conclusion he suggests has been ignored by advocates who, ''infected and inflamed by stunning advances in our understanding of the brain . . . all too often make moral and legal claims that the new neuroscience . . . cannot sustain.'' He calls this ''brain overclaim syndrome'' and cites as an example the neuroscience briefs filed in the Supreme Court case Roper v. Simmons to question the juvenile death penalty. ''What did the neuroscience add?'' he asks. If adolescent brains caused all adolescent behavior, ''we would expect the rates of homicide to be the same for 16- and 17-year-olds everywhere in the world -- their brains are alike -- but in fact, the homicide rates of Danish and Finnish youths are very different than American youths.'' Morse agrees that our brains bring about our behavior -- ''I'm a thoroughgoing materialist, who believes that all mental and behavioral activity is the causal product of physical events in the brain'' -- but he disagrees that the law should excuse certain kinds of criminal conduct as a result. ''It's a total non sequitur,'' he says. ''So what if there's biological causation? Causation can't be an excuse for someone who believes that responsibility is possible. Since all behavior is caused, this would mean all behavior has to be excused.'' Morse cites the case of Charles Whitman, a man who, in 1966, killed his wife and his mother, then climbed up a tower at the University of Texas and shot and killed 13 more people before being shot by police officers. Whitman was discovered after an autopsy to have a tumor that was putting pressure on his amygdala. ''Even if his amygdala made him more angry and volatile, since when are anger and volatility excusing conditions?'' Morse asks. ''Some people are angry because they had
bad mommies and daddies and others because their amygdalas are mucked up. The question is: When should anger be an excusing condition?'' Still, Morse concedes that there are circumstances under which new discoveries from neuroscience could challenge the legal system at its core. ''Suppose neuroscience could reveal that reason actually plays no role in determining human behavior,'' he suggests tantalizingly. ''Suppose I could show you that your intentions and your reasons for your actions are post hoc rationalizations that somehow your brain generates to explain to you what your brain has already done'' without your conscious participation. If neuroscience could reveal us to be automatons in this respect, Morse is prepared to agree with Greene and Cohen that criminal law would have to abandon its current ideas about responsibility and seek other ways of protecting society. Some scientists are already pushing in this direction. In a series of famous experiments in the 1970s and '80s, Benjamin Libet measured people's brain activity while telling them to move their fingers whenever they felt like it. Libet detected brain activity suggesting a readiness to move the finger half a second before the actual movement and about 400 milliseconds before people became aware of their conscious intention to move their finger. Libet argued that this leaves 100 milliseconds for the conscious self to veto the brain's unconscious decision, or to give way to it -- suggesting, in the words of the neuroscientist Vilayanur S. Ramachandran, that we have not free will but ''free won't.'' Morse is not convinced that the Libet experiments reveal us to be helpless automatons. But he does think that the study of our decision-making powers could bear some fruit for the law. ''I'm interested,'' he says, ''in people who suffer from drug addictions, psychopaths and people who have intermittent explosive disorder -- that's people who have no general rationality problem other than they just go off.'' In other words, Morse wants to identify the neural triggers that make people go postal. ''Suppose we could show that the higher deliberative centers in the brain seem to be disabled in these cases,'' he says. ''If these are people who cannot control episodes of gross irrationality, we've learned something that might be relevant to the legal ascription of responsibility.'' That doesn't mean they would be let off the hook, he emphasizes: ''You could give people a prison sentence and an opportunity to get fixed.'' IV. Putting the Unconscious on Trial: If debates over criminal responsibility long predate the f.M.R.I., so do debates over the use of lie-detection technology. What's new is the prospect that lie detectors in the courtroom will become much more accurate, and correspondingly more intrusive. There are, at the moment, two lie-detection technologies that rely on neuroimaging, although the value and accuracy of both are sharply contested. The first, developed by Lawrence Farwell in the 1980s, is known as ''brain fingerprinting.'' Subjects put on an electrode-filled helmet that measures a brain wave called p300, which, according to Farwell, changes its frequency when people recognize images, pictures, sights and smells. After showing a suspect pictures of familiar places and measuring his p300 activation patterns, government officials could, at least in theory, show a suspect pictures of places he may or may not have seen before -- a Qaeda training camp, for example, or a crime scene -- and compare the activation
patterns. (By detecting not only lies but also honest cases of forgetfulness, the technology could expand our very idea of lie detection.) The second lie-detection technology uses f.M.R.I. machines to compare the brain activity of liars and truth tellers. It is based on a test called Guilty Knowledge, developed by Daniel Langleben at the University of Pennsylvania in 2001. Langleben gave subjects a playing card before they entered the magnet and told them to answer no to a series of questions, including whether they had the card in question. Langleben and his colleagues found that certain areas of the brain lighted up when people lied. Two companies, No Lie MRI and Cephos, are now competing to refine f.M.R.I. lie- detection technology so that it can be admitted in court and commercially marketed. I talked to Steven Laken, the president of Cephos, which plans to begin selling its products this year. ''We have two to three people who call every single week,'' he told me. ''They're in legal proceedings throughout the world, and they're looking to bolster their credibility.'' Laken said the technology could have ''tremendous applications'' in civil and criminal cases. On the government side, he said, the technology could replace highly inaccurate polygraphs in screening for security clearances, as well as in trying to identify suspected terrorists' native languages and close associates. ''In lab studies, we've been in the 80- to 90-percent-accuracy range,'' Laken says. This is similar to the accuracy rate for polygraphs, which are not considered sufficiently reliable to be allowed in most legal cases. Laken says he hopes to reach the 90-percent- to 95-percent-accuracy range -- which should be high enough to satisfy the Supreme Court's standards for the admission of scientific evidence. Judy Illes, director of Neuroethics at the Stanford Center for Biomedical Ethics, says, ''I would predict that within five years, we will have technology that is sufficiently reliable at getting at the binary question of whether someone is lying that it may be utilized in certain legal settings.'' If and when lie-detection f.M.R.I.'s are admitted in court, they will raise vexing questions of self-incrimination and privacy. Hank Greely, a law professor and head of the Stanford Center for Law and the Biosciences, notes that prosecution and defense witnesses might have their credibility questioned if they refused to take a lie-detection f.M.R.I., as might parties and witnesses in civil cases. Unless courts found the tests to be shocking invasions of privacy, like stomach pumps, witnesses could even be compelled to have their brains scanned. And equally vexing legal questions might arise as neuroimaging technologies move beyond telling whether or not someone is lying and begin to identify the actual content of memories. Michael Gazzaniga, a professor of psychology at the University of California, Santa Barbara, and author of ''The Ethical Brain,'' notes that within 10 years, neuroscientists may be able to show that there are neurological differences when people testify about their own previous acts and when they testify to something they saw. ''If you kill someone, you have a procedural memory of that, whereas if I'm standing and watch you kill somebody, that's an episodic memory that uses a different part of the brain,'' he told me. Even if witnesses don't have their brains scanned, neuroscience may lead judges and jurors to conclude that certain kinds of memories are more reliable than others because of the area of the brain in which they are processed. Further into the future, and closer to science fiction, lies the possibility of memory downloading. ''One could even,
just barely, imagine a technology that might be able to 'read out' the witness's memories, intercepted as neuronal firings, and translate it directly into voice, text or the equivalent of a movie,'' Hank Greely writes. Greely acknowledges that lie-detection and memory-retrieval technologies like this could pose a serious challenge to our freedom of thought, which is now defended largely by the First Amendment protections for freedom of expression. ''Freedom of thought has always been buttressed by the reality that you could only tell what someone thought based on their behavior,'' he told me. ''This technology holds out the possibility of looking through the skull and seeing what's really happening, seeing the thoughts themselves.'' According to Greely, this may challenge the principle that we should be held accountable for what we do, not what we think. ''It opens up for the first time the possibility of punishing people for their thoughts rather than their actions,'' he says. ''One reason thought has been free in the harshest dictatorships is that dictators haven't been able to detect it.'' He adds, ''Now they may be able to, putting greater pressure on legal constraints against government interference with freedom of thought.'' In the future, neuroscience could also revolutionize the way jurors are selected. Steven Laken, the president of Cephos, says that jury consultants might seek to put prospective jurors in f.M.R.I.'s. ''You could give videotapes of the lawyers and witnesses to people when they're in the magnet and see what parts of their brains light up,'' he says. A situation like this would raise vexing questions about jurors' prejudices -- and what makes for a fair trial. Recent experiments have suggested that people who believe themselves to be free of bias may harbor plenty of it all the same. The experiments, conducted by Elizabeth Phelps, who teaches psychology at New York University, combine brain scans with a behavioral test known as the Implicit Association Test, or I.A.T., as well as physiological tests of the startle reflex. The I.A.T. flashes pictures of black and white faces at you and asks you to associate various adjectives with the faces. Repeated tests have shown that white subjects take longer to respond when they're asked to associate black faces with positive adjectives and white faces with negative adjectives than vice versa, and this is said to be an implicit measure of unconscious racism. Phelps and her colleagues added neurological evidence to this insight by scanning the brains and testing the startle reflexes of white undergraduates at Yale before they took the I.A.T. She found that the subjects who showed the most unconscious bias on the I.A.T. also had the highest activation in their amygdalas -- a center of threat perception -- when unfamiliar black faces were flashed at them in the scanner. By contrast, when subjects were shown pictures of familiar black and white figures -- like Denzel Washington, Martin Luther King Jr. and Conan O'Brien -- there was no jump in amygdala activity. The legal implications of the new experiments involving bias and neuroscience are hotly disputed. Mahzarin R. Banaji, a psychology professor at Harvard who helped to pioneer the I.A.T., has argued that there may be a big gap between the concept of intentional bias embedded in law and the reality of unconscious racism revealed by science. When the gap is ''substantial,'' she and the U.C.L.A. law professor Jerry Kang have argued, ''the law
should be changed to comport with science'' -- relaxing, for example, the current focus on intentional discrimination and trying to root out unconscious bias in the workplace with ''structural interventions,'' which critics say may be tantamount to racial quotas. One legal scholar has cited Phelps's work to argue for the elimination of peremptory challenges to prospective jurors -- if most whites are unconsciously racist, the argument goes, then any decision to strike a black juror must be infected with racism. Much to her displeasure, Phelps's work has been cited by a journalist to suggest that a white cop who accidentally shot a black teenager on a Brooklyn rooftop in 2004 must have been responding to a hard-wired fear of unfamiliar black faces -- a version of the amygdala made me do it. Phelps herself says it's ''crazy'' to link her work to cops who shoot on the job and insists that it is too early to use her research in the courtroom. ''Part of my discomfort is that we haven't linked what we see in the amygdala or any other region of the brain with an activity outside the magnet that we would call racism,'' she told me. ''We have no evidence whatsoever that activity in the brain is more predictive of things we care about in the courtroom than the behaviors themselves that we correlate with brain function.'' In other words, just because you have a biased reaction to a photograph doesn't mean you'll act on those biases in the workplace. Phelps is also concerned that jurors might be unduly influenced by attention-grabbing pictures of brain scans. ''Frank Keil, a psychologist at Yale, has done research suggesting that when you have a picture of a mechanism, you have a tendency to overestimate how much you understand the mechanism,'' she told me. Defense lawyers confirm this phenomenon. ''Here was this nice color image we could enlarge, that the medical expert could point to,'' Christopher Plourd, a San Diego criminal defense lawyer, told The Los Angeles Times in the early 1990s. ''It documented that this guy had a rotten spot in his brain. The jury glommed onto that.'' Other scholars are even sharper critics of efforts to use scientific experiments about unconscious bias to transform the law. ''I regard that as an extraordinary claim that you could screen potential jurors or judges for bias; it's mind-boggling,'' I was told by Philip Tetlock, professor at the Haas School of Business at the University of California at Berkley. Tetlock has argued that split-second associations between images of African- Americans and negative adjectives may reflect ''simple awareness of the social reality'' that ''some groups are more disadvantaged than others.'' He has also written that, according to psychologists, ''there is virtually no published research showing a systematic link between racist attitudes, overt or subconscious, and real-world discrimination.'' (A few studies show, Tetlock acknowledges, that openly biased white people sometimes sit closer to whites than blacks in experiments that simulate job hiring and promotion.) ''A light bulb going off in your brain means nothing unless it's correlated with a particular output, and the brain-scan stuff, heaven help us, we have barely linked that with anything,'' agrees Tetlock's co-author, Amy Wax of the University of Pennsylvania Law School. ''The claim that homeless people light up your amygdala more and your frontal cortex less and we can infer that you will systematically dehumanize homeless people -- that's piffle.'' V. Are You Responsible for What You Might Do?: The attempt to link unconscious bias to actual acts of discrimination may be dubious. But are there other
ways to look inside the brain and make predictions about an individual's future behavior? And if so, should those discoveries be employed to make us safer? Efforts to use science to predict criminal behavior have a disreputable history. In the 19th century, the Italian criminologist Cesare Lombroso championed a theory of ''biological criminality,'' which held that criminals could be identified by physical characteristics, like large jaws or bushy eyebrows. Nevertheless, neuroscientists are trying to find the factors in the brain associated with violence. PET scans of convicted murderers were first studied in the late 1980s by Adrian Raine, a professor of psychology at the University of Southern California; he found that their prefrontal cortexes, areas associated with inhibition, had reduced glucose metabolism and suggested that this might be responsible for their violent behavior. In a later study, Raine found that subjects who received a diagnosis of antisocial personality disorder, which correlates with violent behavior, had 11 percent less gray matter in their prefrontal cortexes than control groups of healthy subjects and substance abusers. His current research uses f.M.R.I.'s to study moral decision-making in psychopaths. Neuroscience, it seems, points two ways: it can absolve individuals of responsibility for acts they've committed, but it can also place individuals in jeopardy for acts they haven't committed -- but might someday. ''This opens up a Pandora's box in civilized society that I'm willing to fight against,'' says Helen S. Mayberg, a professor of psychiatry, behavioral sciences and neurology at Emory University School of Medicine, who has testified against the admission of neuroscience evidence in criminal trials. ''If you believe at the time of trial that the picture informs us about what they were like at the time of the crime, then the picture moves forward. You need to be prepared for: 'This spot is a sign of future dangerousness,' when someone is up for parole. They have a scan, the spot is there, so they don't get out. It's carved in your brain.'' Other scholars see little wrong with using brain scans to predict violent tendencies and sexual predilections -- as long as the scans are used within limits. ''It's not necessarily the case that if predictions work, you would say take that guy off the street and throw away the key,'' says Hank Greely, the Stanford law professor. ''You could require counseling, surveillance, G.P.S. transmitters or warning the neighbors. None of these are necessarily benign, but they beat the heck out of preventative detention.'' Greely has little doubt that predictive technologies will be enlisted in the war on terror -- perhaps in radical ways. ''Even with today's knowledge, I think we can tell whether someone has a strong emotional reaction to seeing things, and I can certainly imagine a friend-versus-foe scanner. If you put everyone who reacts badly to an American flag in a concentration camp or Guantanamo, that would be bad, but in an occupation situation, to mark someone down for further surveillance, that might be appropriate.'' Paul Root Wolpe, who teaches social psychiatry and psychiatric ethics at the University of Pennsylvania School of Medicine, says he anticipates that neuroscience predictions will move beyond the courtroom and will be used to make predictions about citizens in all walks of life. ''Will we use brain imaging to track kids in school because we've discovered that certain
brain function or morphology suggests aptitude?'' he asks. ''I work for NASA, and imagine how helpful it might be for NASA if it could scan your brain to discover whether you have a good enough spatial sense to be a pilot.'' Wolpe says that brain imaging might eventually be used to decide if someone is a worthy foster or adoptive parent -- a history of major depression and cocaine abuse can leave telltale signs on the brain, for example, and future studies might find parts of the brain that correspond to nurturing and caring. The idea of holding people accountable for their predispositions rather than their actions poses a challenge to one of the central principles of Anglo-American jurisprudence: namely, that people are responsible for their behavior, not their proclivities -- for what they do, not what they think. ''We're going to have to make a decision about the skull as a privacy domain,'' Wolpe says. Indeed, Wolpe serves on the board of an organization called the Center for Cognitive Liberty and Ethics, a group of neuroscientists, legal scholars and privacy advocates ''dedicated to protecting and advancing freedom of thought in the modern world of accelerating neurotechnologies.'' There may be similar ''cognitive liberty'' battles over efforts to repair or enhance broken brains. A remarkable technique called transcranial magnetic stimulation, for example, has been used to stimulate or inhibit specific regions of the brain. It can temporarily alter how we think and feel. Using T.M.S., Ernst Fehr and Daria Knoch of the University of Zurich temporarily disrupted each side of the dorsolateral prefrontal cortex in test subjects. They asked their subjects to participate in an experiment that economists call the ultimatum game. One person is given $20 and told to divide it with a partner. If the partner rejects the proposed amount as too low, neither person gets any money. Subjects whose prefrontal cortexes were functioning properly tended to reject offers of $4 or less: they would rather get no money than accept an offer that struck them as insulting and unfair. But subjects whose right prefrontal cortexes were suppressed by T.M.S. tended to accept the $4 offer. Although the offer still struck them as insulting, they were able to suppress their indignation and to pursue the selfishly rational conclusion that a low offer is better than nothing. Some neuroscientists believe that T.M.S. may be used in the future to enforce a vision of therapeutic justice, based on the idea that defective brains can be cured. ''Maybe somewhere down the line, a badly damaged brain would be viewed as something that can heal, like a broken leg that needs to be repaired,'' the neurobiologist Robert Sapolsky says, although he acknowledges that defining what counts as a normal brain is politically and scientifically fraught. Indeed, efforts to identify normal and abnormal brains have been responsible for some of the darkest movements in the history of science and technology, from phrenology to eugenics. ''How far are we willing to go to use neurotechnology to change people's brains we consider disordered?'' Wolpe asks. ''We might find a part of the brain that seems to be malfunctioning, like a discrete part of the brain operative in violent or sexually predatory behavior, and then turn off or inhibit that behavior using transcranial magnetic stimulation.'' Even behaviors in the normal range might be fine-tuned by T.M.S.: jurors, for example, could be made more emotional or more deliberative with magnetic interventions. Mark George, an adviser to the Cephos company and also director of the Medical University of South Carolina Center for
Advanced Imaging Research, has submitted a patent application for a T.M.S. procedure that supposedly suppresses the area of the brain involved in lying and makes a person less capable of not telling the truth. As the new technologies proliferate, even the neurolaw experts themselves have only begun to think about the questions that lie ahead. Can the police get a search warrant for someone's brain? Should the Fourth Amendment protect our minds in the same way that it protects our houses? Can courts order tests of suspects' memories to determine whether they are gang members or police informers, or would this violate the Fifth Amendment's ban on compulsory self-incrimination? Would punishing people for their thoughts rather than for their actions violate the Eighth Amendment's ban on cruel and unusual punishment? However astonishing our machines may become, they cannot tell us how to answer these perplexing questions. We must instead look to our own powers of reasoning and intuition, relatively primitive as they may be. As Stephen Morse puts it, neuroscience itself can never identify the mysterious point at which people should be excused from responsibility for their actions because they are not able, in some sense, to control themselves. That question, he suggests, is ''moral and ultimately legal,'' and it must be answered not in laboratories but in courtrooms and legislatures. In other words, we must answer it ourselves. URL: http://www.nytimes.com http://web.lexis- nexis.com/universe/document?_m=259e53a8b8100ffc51b717a38884dc9b&_docnum=2& wchp=dGLzVlz-zSkVb&_md5=f966643ea171c5b99152410e35527443 GRAPHIC: Drawings (Drawings by Brendan Monroe) LOAD-DATE: March 11, 2007
__MACOSX/Freedom, Privacy and Tech./._Brain%20on%20the%20Stand%20Rosen%20NYTimes3-07.pdf
Freedom, Privacy and Tech./DO%20ARTIFACTS%20HAVE%20Politics-Winner.doc
DO ARTIFACTS HAVE POLITICS?
[from Winner, L. (1986). The whale and the reactor: a search for limits in an age of high technology. Chicago, University of Chicago Press, 19-39.]
No idea is more provocative in controversies about technology and society than the notion that technical things have political qualities. At issue is the claim that the machines, structures, and systems of modern material culture can be accurately judged not only for their contributions to efficiency and productivity and their positive and negative environmental side effects, but also for the ways in which they can embody specific forms of power and authority. Since ideas of this kind are a persistent and troubling presence in discussions about the meaning of technology, they deserve explicit attention.
Writing in the early 1960s, Lewis Mumford gave classic statement to one version of the theme, arguing that "from late neolithic times in the Near East, right down to our own day, two technologies have recurrently existed side by side: one authoritarian, the other democratic, the first system-centered, immensely powerful, but inherently unstable, the other man- centered, relatively weak, but resourceful and durable."' This thesis stands at the heart of Mumford's studies of the city, architecture, and history of technics, and mirrors concerns voiced earlier in the works of Peter Kropotkin, William Morris, and other nineteenth-century critics of industrialism. During the 1970s, antinuclear and pro-solar energy movements in Europe and the United States adopted a similar notion as the centerpiece of their arguments. According to environmentalist Denis Hayes, "The increased deployment of nuclear power facilities must lead society toward authoritarianism. Indeed, safe reliance upon nuclear power as the principal source of energy may be possible only in a totalitarian state." Echoing the views of many proponents of appropriate technology and the soft energy path, Hayes contends that "dispersed solar sources are more compatible than centralized technologies with social equity, freedom and cultural pluralism." 2
An eagerness to interpret technical artifacts in political language is by no means the exclusive property of critics of large- scale, high-technology systems. A long lineage of boosters has insisted that the biggest and best that science and industry made available were the best guarantees of democracy, freedom, and social justice. The factory system, automobile, telephone, radio, television, space program, and of course nuclear power have all at one time or another been described as democratizing, liberating forces. David Lillienthal's TVA: Democracy on the March, for example, found this promise in the phosphate fertilizers and electricity that technical progress was bringing to rural Americans during the 1940s.3 Three decades later Daniel Boorstin's The Republic of Technology extolled television for "its power to disband armies, to cashier presidents, to create a whole new democratic world.4 Scarcely a new invention comes along that someone doesn't proclaim it as the salvation of a free society.
It is no surprise to learn that technical systems of various kinds are deeply interwoven in the conditions of modern politics. The physical arrangements of industrial production, war fare, communications, and the like have fundamentally changed the exercise of power and the experience of citizenship. But to go beyond this obvious fact and to argue that certain technologies in themselves have political properties seems, at first glance, completely mistaken. We all know that people have politics; things do not. To discover either virtues or evils in aggregates of steel, plastic, transistors, integrated circuits, chemicals, and the like seems just plain wrong, a way of mystifying human artifice and of avoiding the true sources, the human sources of freedom and oppression, justice and injustice. Blaming the hardware appears even more foolish than blaming the victims when it comes to judging conditions of public life.
Hence, the stern advice commonly given those who flirt with the notion that technical artifacts have political qualities: What matters is not technology itself, but the social or economic system in which it is embedded. This maxim, which in a number of variations is the central premise of a theory that can be called the social determination of technology, has an obvious wisdom. It serves as a needed corrective to those who focus uncritically upon such things as "the computer and its social impacts" but who fail to look behind technical devices to see the social circumstances of their development, deployment, and use. This view provides an antidote to naive technological determinism–the idea that technology develops as the sole result of an internal dynamic and then, unmediated by any other influence, molds society to fit its patterns. Those who have not recognized the ways in which technologies are shaped by social and economic forces have not gotten very far.
But the corrective has its own shortcomings; taken literally, it suggests that technical things do not matter at all. Once one has done the detective work necessary to reveal the social origins– power holders behind a particular instance of technological change–one will have explained everything of importance. This conclusion offers comfort to social scientists. It validates what they had always suspected, namely, that there is nothing distinctive about the study of technology in the first place. Hence, they can return to their standard models of social power– those of interest-group politics, bureaucratic politics, Marxist models of class struggle, and the like–and have everything they need. The social determination of technology is, in this view, essentially no different from the social determination of, say, welfare policy or taxation.
There are, however, good reasons to believe that technology is politically significant in its own right, good reasons why the standard models of social science only go so far in accounting for what is most interesting and troublesome about the subject. Much of modern social and political thought contains recurring statements of what can be called a theory of technological politics, an odd mongrel of notions often crossbred with orthodox liberal, conservative, and socialist philosophies.5 The theory of technological politics draws attention to the momentum of large-scale sociotechnical systems, to the response of modern societies to certain technological imperatives, and to the ways human ends are powerfully transformed as they are adapted to technical means. This perspective offers a novel framework of interpretation and explanation for some of the more puzzling patterns that have taken shape in and around the growth of modern material culture. Its starting point is a decision to take technical artifacts seriously. Rather than insist that we immediately reduce everything to the interplay of social forces, the theory of technological politics suggests that we pay attention to the characteristics of technical objects and the meaning of those characteristics. A necessary complement to, rather than a replacement for, theories of the social determination of technology, this approach identifies certain technologies as political phenomena in their own right. It points us back, to borrow Edmund Husserl's philosophical injunction, to the things themselves.
In what follows I will outline and illustrate two ways in which artifacts can contain political properties. First are instances in which the invention, design, or arrangement of a specific technical device or system becomes a way of settling an issue in the affairs of a particular community. Seen in the proper light, examples of this kind are fairly straightforward and easily under stood. Second are cases of what can be called "inherently political technologies," man-made systems that appear to require or to be strongly compatible with particular kinds of political relationships. Arguments about cases of this kind are much more troublesome and closer to the heart of the matter. By the term "politics" I mean arrangements of power and authority in human associations as well as the activities that take place within those arrangements. For my purposes here, the term "technology" is understood to mean all of modern practical artifice, but to avoid confusion I prefer to speak of "technologies" plural, smaller or larger pieces or systems of hardware of a specific kind.6 My intention is not to settle any of the issues here once and for all, but to indicate their general dimensions and significance.
Technical Arrangements and Social Order
ANYONE WHO has traveled the highways of America and has gotten used to the normal height of overpasses may well find something a little odd about some of the bridges over the park ways on Long Island, New York. Many of the overpasses are extraordinarily low, having as little as nine feet of clearance at the curb. Even those who happened to notice this structural peculiarity would not be inclined to attach any special meaning to it. In our accustomed way of looking at things such as roads and bridges, we see the details of form as innocuous and seldom give them a second thought.
It turns out, however, that some two hundred or so low- hanging overpasses on Long Island are there for a reason. They were deliberately designed and built that way by someone who wanted to achieve a particular social effect. Robert Moses, the master builder of roads, parks, bridges, and other public works of the 1920s to the 1970s in New York, built his overpasses ac cording to specifications that would discourage the presence of buses on his parkways. According to evidence provided by Moses' biographer, Robert A. Caro, the reasons reflect Moses social class bias and racial prejudice. Automobile-owning whites of "upper" and "comfortable middle" classes, as he called them, would be free to use the parkways for recreation and commuting. Poor people and blacks, who normally used public transit, were kept off the roads because the twelve-foot tall buses could not handle the overpasses. One consequence was to limit access of racial minorities and low-income groups to Jones Beach, Moses' widely acclaimed public park. Moses made doubly sure of this result by vetoing a proposed extension of the Long Island Railroad to Jones Beach.
Robert Moses' life is a fascinating story in recent U. S. political history. His dealings with mayors, governors, and presidents; his careful manipulation of legislatures, banks, labor unions, the press, and public opinion could be studied by political scientists for years. But the most important and enduring results of his work are his technologies, the vast engineering projects that give New York much of its present form. For generations after Moses' death and the alliances he forged have fallen apart, his public works, especially the highways and bridges he built to favor the use of the automobile over the development of mass transit, will continue to shape that city. Many of his monumental structures of concrete and steel embody a systematic social inequality, a way of engineering relationships among people that, after a time, became just another part of the landscape. As New York planner Lee Koppleman told Caro about the low bridges on Wantagh Parkway, "The old son of a gun had made sure that buses would never be able to use his goddamned parkways. "7
Histories of architecture, city planning, and public works contain many examples of physical arrangements with explicit or implicit political purposes. One can point to Baron Haussmann's broad Parisian thoroughfares, engineered at Louis Napoleon's direction to prevent any recurrence of street fighting of the kind that took place during the revolution of 1848. Or one can visit any number of grotesque concrete buildings and huge plazas constructed on university campuses in the United States during the late 1960s and early 1970s to defuse student demonstrations. Studies of industrial machines and instruments also turn up interesting political stories, including some that violate our normal expectations about why technological innovations are made in the first place. If we suppose that new technologies are introduced to achieve increased efficiency, the history of technology shows that we will sometimes be disappointed. Technological change expresses a panoply of human motives, not the least of which is the desire of some to have dominion over others even though it may require an occasional sacrifice of cost savings and some violation of the normal standard of trying to get more from less.
One poignant illustration can be found in the history of nineteenth-century industrial mechanization. At Cyrus McCormick's reaper manufacturing plant in Chicago in the middle 1880s, pneumatic molding machines, a new and largely untested innovation, were added to the foundry at an estimated cost of $500,000. The standard economic interpretation would lead us to expect that this step was taken to modernize the plant and achieve the kind of efficiencies that mechanization brings. But historian Robert Ozanne has put the development in a broader context. At the time, Cyrus McCormick II was engaged in a battle with the National Union of Iron Molders. He saw the addition of the new machines as a way to 'weed out the bad element among the men," namely, the skilled workers who had organized the union local in Chicago.8 The new machines, manned by unskilled laborers, actually produced inferior castings at a higher cost than the earlier process. After three years of use the machines were, in fact, abandoned, but by that time they had served their purpose–the destruction of the union. Thus, the story of these technical developments at the McCormick factory cannot be adequately understood outside the record of workers' attempts to organize, police repression of the labor movement in Chicago during that period, and the events surrounding the bombing at Haymarket Square. Technological history and U.S. political history were at that moment deeply intertwined.
In the examples of Moses' low bridges and McCormick's molding machines, one sees the importance of technical arrangements that precede the use of the things in question. It is obvious that technologies can be used in ways that enhance the power, authority, and privilege of some over others, for ex ample, the use of television to sell a candidate. In our accustomed way of thinking technologies are seen as neutral tools that can be used well or poorly, for good, evil, or something in between. But we usually do not stop to inquire whether a given device might have been designed and built in such a way that it produces a set of consequences logically and temporally prior to any of its professed uses. Robert Moses' bridges, after all, were used to carry automobiles from one point to another; McCormick's machines were used to make metal castings; both technologies, however, encompassed purposes far beyond their immediate use. If our moral and political language for evaluating technology includes only categories having to do with tools and uses, if it does not include attention to the meaning of the de signs and arrangements of our artifacts, then we will be blinded to much that is intellectually and practically crucial.
Because the point is most easily understood in the light of particular intentions embodied in physical form, I have so far offered illustrations that seem almost conspiratorial. But to recognize the political dimensions in the shapes of technology does not require that we look for conscious conspiracies or malicious intentions. The organized movement of handicapped people in the United States during the 1970s pointed out the countless ways in which machines, instruments, and structures of common use–buses, buildings, sidewalks, plumbing fixtures, and so forth–made it impossible for many handicapped persons to move freely about, a condition that systematically excluded them from public life. It is safe to say that designs unsuited for the handicapped arose more from long-standing neglect than from anyone's active intention. But once the issue was brought to public attention, it became evident that justice required a remedy. A whole range of artifacts have been redesigned and rebuilt to accommodate this minority.
Indeed, many of the most important examples of technologies that have political consequences are those that transcend the simple categories "intended" and "unintended" altogether. These are instances in which the very process of technical development is so thoroughly biased in a particular direction that it regularly produces results heralded as wonderful breakthroughs by some social interests and crushing setbacks by others. In such cases it is neither correct nor insightful to say, "Someone intended to do somebody else harm." Rather one must say that the technological deck has been stacked in advance to favor certain social interests and that some people were bound to receive a better hand than others.
The mechanical tomato harvester, a remarkable device perfected by researchers at the University of California from the late 1940s to the present offers an illustrative tale. The machine is able to harvest tomatoes in a single pass through a row, cutting the plants from the ground, shaking the fruit loose, and (in the newest models) sorting the tomatoes electronically into large plastic gondolas that hold up to twenty-five tons of produce headed for canning factories. To accommodate the rough motion of these harvesters in the field, agricultural researchers have bred new varieties of tomatoes that are hardier, sturdier, and less tasty than those previously grown. The harvesters replace the system of handpicking in which crews of farm workers would pass through the fields three or four times, putting ripe tomatoes in lug boxes and saving immature fruit for later harvest.9 Studies in California indicate that the use of the machine reduces costs by approximately five to seven dollars per ton as compared to hand harvesting. 10 But the benefits are by no means equally divided in the agricultural economy. In fact, the machine in the garden has in this instance been the occasion for a thorough re shaping of social relationships involved in tomato production in rural California.
By virtue of their very size and cost of more than $50,000 each, the machines are compatible only with a highly concentrated form of tomato growing. With the introduction of this new method of harvesting, the number of tomato growers declined from approximately 4,000 in the early 1960s to about 600 in 1973, and yet there was a substantial increase in tons of tomatoes produced. By the late 1970s an estimated 32,000 jobs in the tomato industry had been eliminated as a direct consequence of mechanization. 11 Thus, a jump in productivity to the benefit of very large growers has occurred at the sacrifice of other rural agricultural communities.
The University of California's research on and development of agricultural machines such as the tomato harvester eventually became the subject of a lawsuit filed by attorneys for California Rural Legal Assistance, an organization representing a group of farm workers and other interested parties. The suit charged that university officials are spending tax monies on projects that benefit a handful of private interests to the detriment of farm workers, small farmers, consumers, and rural California generally and asks for a court injunction to stop the practice. The university denied these charges, arguing that to accept them "would require elimination of all research with any potential practical application." 12
As far as I know, no one argued that the development of the tomato harvester was the result of a plot. Two students of the controversy, William Friedland and Amy Barton, specifically exonerate the original developers of the machine and the hard tomato from any desire to facilitate economic concentration in that industry.13 What we see here instead is an ongoing social process in which scientific knowledge, technological invention, and corporate profit reinforce each other in deeply entrenched patterns, patterns that bear the unmistakable stamp of political and economic power. Over many decades agricultural research and development in U.S. land-grant colleges and universities has tended to favor the interests of large agribusiness concerns.14 It is in the face of such subtly ingrained patterns that opponents of innovations such as the tomato harvester are made to seem "antitechnology" or "antiprogress." For the harvester is not merely the symbol of a social order that rewards some while punishing others; it is in a true sense an embodiment of that order.
Within a given category of technological change there are, roughly speaking, two kinds of choices that can affect the relative distribution of power, authority, and privilege in a community. Often the crucial decision is a simple "yes or no" choice–are we going to develop and adopt the thing or not? In recent years many local, national, and international disputes about technology have centered on "yes or no" judgments about such things as food additives, pesticides, the building of highways, nuclear reactors, dam projects, and proposed high-tech weapons. The fundamental choice about an antiballistic missile or supersonic transport is whether or not the thing is going to join society as a piece of its operating equipment. Reasons given for and against are frequently as important as those concerning the adoption of an important new law.
A second range of choices, equally critical in many instances, has to do with specific features in the design or arrangement of a technical system after the decision to go ahead with it has already been made. Even after a utility company wins permission to build a large electric power line, important controversies can remain with respect to the placement of its route and the design of its towers; even after an organization has decided to institute a system of computers, controversies can still arise with regard to the kinds of components, programs, modes of access, and other specific features the system will include. Once the mechanical tomato harvester had been developed in its basic form, a design alteration of critical social significance–the addition of electronic sorters, for example–changed the character of the machine's effects upon the balance of wealth and power in California agriculture. Some of the most interesting research on technology and politics at present focuses upon the attempt to demonstrate in a detailed, concrete fashion how seemingly innocuous design features in mass transit systems, water projects, industrial machinery, and other technologies actually mask social choices of profound significance. Historian David Noble has studied two kinds of automated machine tool systems that have different implications for the relative power of management and labor in the industries that might employ them. He has shown that although the basic electronic and mechanical components of the record/playback and numerical control systems are similar, the choice of one design over another has crucial consequences for social struggles on the shop floor. To see the matter solely in terms of cost cutting, efficiency, or the modernization of equipment is to miss a decisive element in the story.15
From such examples I would offer some general conclusions. These correspond to the interpretation of technologies as "forms of life" presented in the previous chapter, filling in the explicitly political dimensions of that point of view.
The things we call "technologies" are ways of building order in our world. Many technical devices and systems important in everyday life contain possibilities for many different ways of ordering human activity. Consciously or unconsciously, deliberately or inadvertently, societies choose structures for technologies that influence how people are going to work, communicate, travel, consume, and so forth over a very long time. In the processes by which structuring decisions are made, different people are situated differently and possess unequal degrees of power as well as unequal levels of awareness. By far the greatest latitude of choice exists the very first time a particular instrument, system, or technique is introduced. Because choices tend to become strongly fixed in material equipment, economic investment, and social habit, the original flexibility vanishes for all practical purposes once the initial commitments are made. In that sense technological innovations are similar to legislative acts or political foundings that establish a framework for public order that will endure over many generations. For that reason the same careful attention one would give to the rules, roles, and relationships of politics must also be given to such things as the building of highways, the creation of television networks, and the tailoring of seemingly insignificant features on new machines. The issues that divide or unite people in society are settled not only in the institutions and practices of politics proper, but also, and less obviously, in tangible arrangements of steel and concrete, wires and semiconductors, nuts and bolts.
Inherently Political Technologies
NONE OF the arguments and examples considered thus far ad dresses a stronger, more troubling claim often made in writings about technology and society–the belief that some technologies are by their very nature political in a specific way. According to this view, the adoption of a given technical system unavoidably brings with it conditions for human relationships that have a distinctive political cast–for example, centralized or de centralized, egalitarian or inegalitarian, repressive or liberating. This is ultimately what is at stake in assertions such as those of Lewis Mumford that two traditions of technology, one authoritarian, the other democratic, exist side by side in Western history. In all the cases cited above the technologies are relatively flexible in design and arrangement and variable in their effects. Although one can recognize a particular result produced in a particular setting, one can also easily imagine how a roughly similar device or system might have been built or situated with very much different political consequences. The idea we must now examine and evaluate is that certain kinds of technology do not allow such flexibility, and that to choose them is to choose unalterably a particular form of political life.
A remarkably forceful statement of one version of this argument appears in Friedrich Engels' little essay "On Authority" written in 1872. Answering anarchists who believed that authority is an evil that ought to be abolished altogether, Engels launches into a panegyric for authoritarianism, maintaining, among other things, that strong authority is a necessary condition in modern industry. To advance his case in the strongest possible way, he asks his readers to imagine that the revolution has already occurred. "Supposing a social revolution dethroned the capitalists, who now exercise their authority over the production and circulation of wealth. Supposing, to adopt entirely the point of view of the anti-authoritarians, that the land and the instruments of labour had become the collective property of the workers who use them. Will authority have disappeared or will it have only changed its form?"16
His answer draws upon lessons from three sociotechnical systems of his day, cotton-spinning mills, railways, and ships at sea. He observes that on its way to becoming finished thread, cotton moves through a number of different operations at different locations in the factory. The workers perform a wide variety of tasks, from running the steam engine to carrying the products from one room to another. Because these tasks must be coordinated and because the timing of the work is "fixed by the authority of the steam," laborers must learn to accept a rigid discipline. They must, according to Engels, work at regular hours and agree to subordinate their individual wills to the persons in charge of factory operations. If they fail to do so, they risk the horrifying possibility that production will come to a grinding halt. Engels pulls no punches. "The automatic machinery of a big factory," he writes, "is much more despotic than the small capitalists who employ workers ever have been."17
Similar lessons are adduced in Engels's analysis of the necessary operating conditions for railways and ships at sea. Both re quire the subordination of workers to an "imperious authority" that sees to it that things run according to plan. Engels finds that far from being an idiosyncrasy of capitalist social organization, relationships of authority and subordination arise "independently of all social organization, and are imposed upon us together with the material conditions under which we produce and make products circulate." Again, he intends this to be stern advice to the anarchists who, according to Engels, thought it possible simply to eradicate subordination and superordination at a single stroke. All such schemes are nonsense. The roots of unavoidable authoritarianism are, he argues, deeply implanted in the human involvement with science and technology. "If man, by dint of his knowledge and inventive genius, has subdued the forces of nature, the latter avenge themselves upon him by subjecting him, insofar as he employs them, to a veritable despotism independent of all social organization.18
Attempts to justify strong authority on the basis of supposedly necessary conditions of technical practice have an ancient history. A pivotal theme in the Republic is Plato's quest to borrow the authority of technology and employ it by analogy to but tress his argument in favor of authority in the state. Among the illustrations he chooses, like Engels, is that of a ship on the high seas. Because large sailing vessels by their very nature need to be steered with a firm hand, sailors must yield to their captain's commands; no reasonable person believes that ships can be run democratically. Plato goes on to suggest that governing a state is rather like being captain of a ship or like practicing medicine as a physician. Much the same conditions that require central rule and decisive action in organized technical activity also create this need in government.
In Engels's argument, and arguments like it, the justification for authority is no longer made by Plato's classic analogy, but rather directly with reference to technology itself. If the basic case is as compelling as Engels believed it to be, one would expect that as a society adopted increasingly complicated technical systems as its material basis, the prospects for authoritarian ways of life would be greatly enhanced. Central control by knowledgeable people acting at the top of a rigid social hierarchy would seem increasingly prudent. In this respect his stand in "On Authority" appears to be at variance with Karl Marx's position in Volume I of Capital. Marx tries to show that increasing mechanization will render obsolete the hierarchical division of labor and the relationships of subordination that, in his view, were necessary during the early stages of modern manufacturing. "Modern Industry," he writes, "sweeps away by technical means the manufacturing division of labor, under which each man is bound hand and foot for life to a single detail operation. At the same time, the capitalistic form of that industry reproduces this same division of labour in a still more monstrous shape; in the factory proper, by converting the workman into a living appendage of the machine."19 In Marx's view the conditions that will eventually dissolve the capitalist division of labor and facilitate proletarian revolution are conditions latent in industrial technology itself The differences between Marx's position in Capital and Engels's in his essay raise an important question for socialism: What, after all, does modern technology make possible or necessary in political life? The theoretical tension we see here mirrors many troubles in the practice of freedom and authority that had muddied the tracks of socialist revolution.
Arguments to the effect that technologies are in some sense inherently political have been advanced in a wide variety of con texts, far too many to summarize here. My reading of such notions, however, reveals there are two basic ways of stating the case. One version claims that the adoption of a given technical system actually requires the creation and maintenance of a particular set of social conditions as the operating environment of that system. Engels's position is of this kind. A similar view is offered by a contemporary writer who holds that "if you accept nuclear power plants, you also accept a techno-scientific industrial-military elite. Without these people in charge, you could not have nuclear power."20 In this conception some kinds of technology require their social environments to be structured in a particular way in much the same sense that an automobile requires wheels in order to move. The thing could not exist as an effective operating entity unless certain social as well as material conditions were met. The meaning of "required" here is that of practical (rather than logical) necessity~ Thus, Plato thought it a practical necessity that a ship at sea have one captain and an unquestionably obedient crew.
A second, somewhat weaker, version of the argument holds that a given kind of technology is strongly compatible with, but does not strictly require, social and political relationships of a particular stripe. Many advocates of solar energy have argued that technologies of that variety are more compatible with a democratic, egalitarian society than energy systems based on coal, oil, and nuclear power; at the same time they do not maintain that anything about solar energy requires democracy. Their case is, briefly, that solar energy is decentralizing in both a technical and political sense: technically speaking, it is vastly more reasonable to build solar systems in a disaggregated, widely distributed manner than in large-scale centralized plants; politically speaking, solar energy accommodates the attempts of individuals and local communities to manage their affairs effectively be cause they are dealing with systems that are more accessible, comprehensible, and controllable than huge centralized sources. In this view solar energy is desirable not only for its economic and environmental benefits, but also for the salutary institutions it is likely to permit in other areas of public life.21
Within both versions of the argument there is a further distinction to be made between conditions that are internal to the workings of a given technical system and those that are external to it. Engels's thesis concerns internal social relations said to be required within cotton factories and railways, for example; what such relationships mean for the condition of society at large is, for him, a separate question. In contrast, the solar advocate's belief that solar technologies are compatible with democracy pertains to the way they complement aspects of society removed from the organization of those technologies as such.
There are, then, several different directions that arguments of this kind can follow. Are the social conditions predicated said to be required by, or strongly compatible with, the workings of a given technical system? Are those conditions internal to that system or external to it (or both)? Although writings that ad dress such questions are often unclear about what is being asserted, arguments in this general category are an important part of modern political discourse. They enter into many attempts to explain how changes in social life take place in the wake of technological innovation. More important, they are often used to buttress attempts to justify or criticize proposed courses of action involving new technology. By offering distinctly political reasons for or against the adoption of a particular technology, arguments of this kind stand apart from more commonly employed, more easily quantifiable claims about economic costs and benefits, environmental impacts, and possible risks to public health and safety that technical systems may involve. The is sue here does not concern how many jobs will be created, how much income generated, how many pollutants added, or how many cancers produced. Rather, the issue has to do with ways in which choices about technology have important consequences for the form and quality of human associations.
If we examine social patterns that characterize the environments of technical systems, we find certain devices and systems almost invariably linked to specific ways of organizing power and authority. The important question is: Does this state of affairs derive from an unavoidable social response to intractable properties in the things themselves, or is it instead a pattern imposed independently by a governing body, ruling class, or some other social or cultural institution to further its own purposes?
Taking the most obvious example, the atom bomb is an inherently political artifact. As long as it exists at all, its lethal properties demand that it be controlled by a centralized, rigidly hierarchical chain of command closed to all influences that might make its workings unpredictable. The internal social system of the bomb must be authoritarian; there is no other way. The state of affairs stands as a practical necessity independent of any larger political system in which the bomb is embedded, independent of the type of regime or character of its rulers. Indeed, democratic states must try to find ways to ensure that the social structures and mentality that characterize the management of nuclear weapons do not "spin off" or "spill over" into the polity as a whole.
The bomb is, of course, a special case. The reasons very rigid relationships of authority are necessary in its immediate presence should be clear to anyone. If, however, we look for other instances in which particular varieties of technology are widely perceived to need the maintenance of a special pattern of power and authority, modern technical history contains a wealth of examples.Alfred D. Chandler in The Visible Hand, a monumental study of modern business enterprise, presents impressive documentation to defend the hypothesis that the construction and day-to day operation of many systems of production, transportation, and communication in the nineteenth and twentieth centuries require the development of particular social form–a large-scale centralized, hierarchical organization administered by highly skilled managers. Typical of Chandler's reasoning is his analysis of the growth of the railroads.22
Technology made possible fast, all-weather transportation; but safe, regular, reliable movement of goods and passengers, as well as the continuing maintenance and repair of locomotives, rolling stock, and track, roadbed, stations, roundhouses, and other equipment, required the creation of a sizable administrative organization. It meant the employment of a set of managers to supervise these functional activities over an extensive geographical area; and the appointment of an administrative command of middle and top executives to monitor, evaluate, and coordinate the work of managers responsible for the day-to-day operations.
Throughout his book Chandler points to ways in which technologies used in the production and distribution of electricity, chemicals, and a wide range of industrial goods "demanded" or "required" this form of human association. "Hence, the operational requirements of railroads demanded the creation of the first administrative hierarchies in American business."23
Were there other conceivable ways of organizing these aggregates of people and apparatus? Chandler shows that a previously dominant social form, the small traditional family firm, simply could not handle the task in most cases. Although he does not speculate further, it is clear that he believes there is, to be realistic, very little latitude in the forms of power and authority appropriate within modern sociotechnical systems. The properties of many modern technologies.24 But the weight of argument and empirical evidence in The Visible Hand suggests that any significant departure from the basic pattern would be, at best, highly unlikely.
It may be that other conceivable arrangements of power and authority, for example, those of decentralized, democratic worker self-management, could prove capable of administering factories, refineries, communications systems, and railroads as well as or better than the organizations Chandler describes. Evidence from automobile assembly teams in Sweden and worker- managed plants in Yugoslavia and other countries is often presented to salvage these possibilities. Unable to settle controversies over this matter here, I merely point to what I consider to be their bone of contention. The available evidence tends to show that many large, sophisticated technological systems are in fact highly compatible with centralized, hierarchical managerial control. The interesting question, however, has to do with whether or not this pattern is in any sense a requirement of such systems, a question that is not solely empirical. The matter ultimately rests on our judgments about what steps, if any, are practically necessary in the workings of particular kinds of technology and what, if anything, such measures require of the structure of human associations. Was Plato right in saying that a ship at sea needs steering by a decisive hand and that this could only be accomplished by a single captain and an obedient crew? Is Chandler correct in saying that the properties of large-scale systems require centralized, hierarchical managerial control?
To answer such questions, we would have to examine in some detail the moral claims of practical necessity (including those advocated in the doctrines of economics) and weigh them against moral claims of other sorts, for example, the notion that it is good for sailors to participate in the command of a ship or that workers have a right to be involved in making and administering decisions in a factory. It is characteristic of societies based on large, complex technological systems, however, that moral reasons other than those of practical necessity appear increasingly obsolete, "idealistic," and irrelevant. Whatever claims one may wish to make on behalf of liberty, justice, or equality can be immediately neutralized when confronted with arguments to the effect, "Fine, but that's no way to run a railroad" (or steel mill, or airline, or communication system, and so on). Here we en counter an important quality in modern political discourse and in the way people commonly think about what measures are justified in response to the possibilities technologies make avail able. In many instances, to say that some technologies are inherently political is to say that certain widely accepted reasons of practical necessity–especially the need to maintain crucial technological systems as smoothly working entities–have tended to eclipse other sorts of moral and political reasoning.
One attempt to salvage the autonomy of politics from the bind of practical necessity involves the notion that conditions of human association found in the internal workings of technological systems can easily be kept separate from the polity as a whole. Americans have long rested content in the belief that arrangements of power and authority inside industrial corporations, public utilities, and the like have little bearing on public institutions, practices, and ideas at large. That "democracy stops at the factory gates" was taken as a fact of life that had nothing to do with the practice of political freedom. But can the internal politics of technology and the politics of the whole community be so easily separated? A recent study of business leaders in the United States, contemporary exemplars of Chandler's "visible hand of management," found them remark ably impatient with such democratic scruples as "one man one vote. If democracy doesn't work for the firm, the most critical institution in all of society, American executives ask, how well can it be expected to work for the government of a nation–particularly when that government attempts to interfere with the achievements of the firm? The authors of the report observe that patterns of authority that work effectively in the corporation be come for businessmen "the desirable model against which to compare political and economic relationships in the rest of society."25 While such findings are far from conclusive, they do reflect a sentiment increasingly common in the land: what dilemmas such as the energy crisis require is not a redistribution of wealth or broader public participation but, rather, stronger, centralized public and private management.
An especially vivid case in which the operational requirements of a technical system might influence the quality of public life is the debates about the risks of nuclear power. As the supply of uranium for nuclear reactors runs out, a proposed alternative fuel is the plutonium generated as a byproduct in reactor cores. Well-known objections to plutonium recycling focus on its unacceptable economic costs, its risks of environmental contamination, and its dangers in regard to the international proliferation of nuclear weapons. Beyond these concerns, however stands another less widely appreciated set of hazards–those that involve the sacrifice of civil liberties. The widespread use of plutonium as a fuel increases the chance that this toxic substance might be stolen by terrorists, organized crime, or other per sons. This raises the prospect, and not a trivial one, that extraordinary measures would have to be taken to safeguard plutonium from theft and to recover it should the substance be stolen. Workers in the nuclear industry as well as ordinary citizens outside could well become subject to background security checks, covert surveillance, wiretapping, informers, and even emergency measures under martial law–all justified by the need to safeguard plutonium.
Russell W. Ayres's study of the legal ramifications of plutonium recycling concludes: "With the passage of time and the increase in the quantity of plutonium in existence will come pressure to eliminate the traditional checks the courts and legislatures place on the activities of the executive and to develop a powerful central authority better able to enforce strict safeguards." He avers that "once a quantity of plutonium had been stolen, the case for literally turning the country upside down to get it back would be overwhelming." Ayres anticipates and worries about the kinds of thinking that, I have argued, characterize inherently political technologies. It is still true that in a world in which human beings make and maintain artificial systems nothing is "required" in an absolute sense. Nevertheless, once a course of action is under way, once artifacts such as nuclear power plants have been built and put in operation, the kinds of reasoning that justify the adaptation of social life to technical requirements pop up as spontaneously as flowers in the spring. In Ayres's words, "Once recycling begins and the risks of plutonium theft become real rather than hypothetical, the case for governmental infringement of protected rights will seem compelling."26 After a certain point, those who cannot accept the hard requirements and imperatives will be dismissed as dreamers and fools.
* * *
The two varieties of interpretation I have outlined indicate how artifacts can have political qualities. In the first instance we noticed ways in which specific features in the design or arrangement of a device or system could provide a convenient means of establishing patterns of power and authority in a given setting. Technologies of this kind have a range of flexibility in the dimensions of their material form. It is precisely because they are flexible that their consequences for society must be understood with reference to the social actors able to influence which de signs and arrangements are chosen. In the second instance we examined ways in which the intractable properties of certain kinds of technology are strongly, perhaps unavoidably, linked to particular institutionalized patterns of power and authority. Here the initial choice about whether or not to adopt something is decisive in regard to its consequences. There are no alternative physical designs or arrangements that would make a significant difference; there are, furthermore, no genuine possibilities for creative intervention by different social systems–capitalist or socialist–that could change the intractability of the entity or significantly alter the quality of its political effects.
To know which variety of interpretation is applicable in a given case is often what is at stake in disputes, some of them passionate ones, about the meaning of technology for how we live. I have argued a "both/and" position here, for it seems to me that both kinds of understanding are applicable in different circumstances. Indeed, it can happen that within a particular complex of technology–a system of communication or transportation, for example–some aspects may be flexible in their possibilities for society, while other aspects may be (for better or worse) completely intractable. The two varieties of interpretation I have examined here can overlap and intersect at many points.
These are, of course, issues on which people can disagree. Thus, some proponents of energy from renewable resources now believe they have at last discovered a set of intrinsically democratic, egalitarian, communitarian technologies. In my best estimation, however, the social consequences of building renewable energy systems will surely depend on the specific configurations of both hardware and the social institutions created to bring that energy to us. It may be that we will find ways to turn this silk purse into a sow's ear. By comparison, advocates of the further development of nuclear power seem to believe that they are working on a rather flexible technology whose adverse social effects can be fixed by changing the design parameters of reactors and nuclear waste disposal systems. For reasons indicated above, I believe them to be dead wrong in that faith. Yes, we may be able to manage some of the "risks" to public health and safety that nuclear power brings. But as society adapts to the more dangerous and apparently indelible features of nuclear power, what will be the long-range toll in human freedom?
My belief that we ought to attend more closely to technical objects themselves is not to say that we can ignore the contexts in which those objects are situated. A ship at sea may well re quire, as Plato and Engels insisted, a single captain and obedient crew. But a ship out of service, parked at the dock, needs only a caretaker. To understand which technologies and which con texts are important to us, and why, is an enterprise that must involve both the study of specific technical systems and their history as well as a thorough grasp of the concepts and controversies of political theory. In our times people are often willing to make drastic changes in the way they live to accommodate technological innovation while at the same time resisting similar kinds of changes justified on political grounds. If for no other reason than that, it is important for us to achieve a clearer view of these matters than has been our habit so far.
Notes.
1. Lewis Mumford, "Auhoritarian and Democratic Technics," Technology and Culture 5:1-8, 1964.
2. Denis Hayes, Rays of Hope: The Transition to a Post-Petroleum World (New York: W. W. Norton, 1977), 71, 159.
3. David Lillienthal, T.V.A.: Democracy on the March (New York: Harper and Brothers, 1944), 72-83.
4. Daniel J. Boorstin, The Republic of Technology (New York: Harper and Row, 1978), 7.
5. Langdon Winner, Autonomous Technology: Technics-Out-of-Control as a Theme in Political Thought (Cambridge: MIT Press, 1977).
6. The meaning of "technology" I employ in this essay does not encompass some of the broader definitions of that concept found in contemporary literature, for example, the notion of "technique" in the writings of Jacques Ellul. My purposes here are more limited. For a discussion of the difficulties that arise in attempts to define "technology," see Autonomous Technology, 8-12.
7. Robert A. Caro, The Power Broker: Robert Moses and the Fall of New York (New York: Random House, 1974), 318, 481, 514, 546, 951-958, 952.
8. Robert Ozanne, A Century of Labor-Management Relations at McCormick and International Harvester (Madison: University of Wisconsin Press, 1967), 20.
9. The early history of the tomato harvester is told in Wayne D. Rasmussen, "Advances in American Agriculture: The Mechanical Tomato Harvester as a Case Study," Technology and Culture 9:531-543, 1968.
10. Andrew Schmitz and David Seckler, "Mechanized Agriculture and Social Welfare: The Case of the Tomato Harvester," American Journal of Agricultural Economics 52:569-577, 1970.
11. William H. Friedland and Amy Barton, "Tomato Technology," Society13:6, September/October 1976. See also William H. Friedland, Social Sleepwalkers: Scientific and Technological Research in California Agriculture, University of California, Davis, Department of Applied Behavioral Sciences, Research Monograph No. 13, 1974.
12. University of California Clip Sheet 54:36, May 1, 1979.
13. "Tomato Technology."
14. A history and critical analysis of agricultural research in the land-grant colleges is given in James Hightower, Hard Tomatoes, Hard Times (Cambridge: Schenkman, 1978).
15. David F. Noble, Forces of Production: A Social History of Machine Tool Automation (New York: Alfred A. Knopf, 1984).
16. Friedrich Engels, "On Authority," in The Marx-Engels Reader, ed. 2, Robert Tucker (ed.) (New York: W. W. Norton, 1978), 731.
17. Ibid.
18. Ibid., 732, 731.
19. Karl Marx, Capital, vol. 1, ed. 3, translated by Samuel Moore and Edward Aveling (New York: Modern Library, 1906), 530.
20. Jerry Mander, Four Arguments for the Elimination of Television (New York: William Morrow, 1978), 44.
21. See, for example, Robert Argue, Barbara Emanuel, and Stephen Graham, The Sun Builders: A People's Guide to Solar, Wind and Wood Energy in Canada (Toronto: Renewable Energy in Canada, 1978). "We think decentralization is an implicit component of renewable energy; this implies the de centralization of energy systems, communities and of power. Renewable energy doesn't require mammoth generation sources of disruptive transmission corridors. Our cities and towns, which have been dependent on centralized energy supplies, may be able to achieve some degree of autonomy, thereby controlling and administering their own energy needs." (16)
22. Alfred D. Chandler, Jr., The Visible Hand: The Managerial Revolution in American Business (Cambridge: Belknap, 1977), 244.
23. Ibid.
24. Ibid., 500.
25. Leonard Silk and David Vogel, Ethics and Profits: The Crisis of Confidence in American Business (New York: Simon and Schuster, 1976), 191.
26. Russell W. Ayres, "Policing Plutonium: The Civil Liberties Fallout," Harvard Civil Rights–Civil Liberties Law Review 10 (1975): 443, 413-414, 374.
__MACOSX/Freedom, Privacy and Tech./._DO%20ARTIFACTS%20HAVE%20Politics-Winner.doc
Freedom, Privacy and Tech./Ellul.doc
Jacques Ellul
Freedom and Necessity
The term technique, as I use it, does not mean machines, technology, or this or that procedure for attaining an end. In our technological society, technique is the totality of methods rationally arrived at and having absolute efficiency (for a given stage of development) in every field of human activity.
It is said (and everyone agrees) that the machine has created an inhuman atmosphere. The machine, so characteristic of the nineteenth century, made an abrupt entrance into a society which, from the political, institutional, and human points of view, was not made to receive it; and man has had to put up with it as best he can. Men now live in conditions that are less than human. Consider the concentration of our great cities, the slums, the lack of space, of air, time, the gloomy streets and sallow lights that confuse night and day. Think of our dehumanized factories, our unsatisfied senses...our estrangement from nature. Life in such an environment has no meaning. Consider our public transportation, in which man is less important than a parcel; our hospitals, in which he is only a number. Yet we call this progress...
It must be emphasized that, at present, technique is applied outside industrial life. The growth of its power today has no relation to the growing use of the machine. The balance seems rather to have shifted to the other side. It is the machine which is now entirely dependent on technique, and the machine represents only a small part of technique. If we were to characterize the relations between technique and the machine today, we could say not only that the machine is the result of a certain technique, but also that its social and economic applications are made possible by other technical advances. The machine is now not even the most important aspect of technique (though it is perhaps the most Spectacular); technique has taken over all of man's activities, not just his productive activity.
From another point of view, however, the machine is deeply symptomatic: it represents the ideal toward which technique strives. The machine is solely, exclusively, technique; it is pure technique, one might say. For wherever a technical factor exists, it results, almost inevitably, in mechanization: technique transforms everything it touches into a machine.
It is an illusion--unfortunately very widespread--to think that because we have broken through the prohibitions, taboos, and rites that bound primitive man, we have become free. We are conditioned by something new: technological civilization. I make no reference to a past period of history in which men were allegedly free, happy, and independent. The determinisms of the past no longer concern us; they are finished and done with. If I do refer to the past, it is only to emphasize that present determinants did not exist in the past, and men did not have to grapple with them.
In my conception, freedom is not an immutable fact graven in nature and on the heart of man. It is not inherent in man or in society, and it is meaningless to write it into law. The mathematical, physical, biological, sociological, and psychological sciences reveal nothing but necessities and determinisms on all sides. As a matter of fact, reality is itself a combination of determinisms, and freedom consists in overcoming and transcending these determinisms. Freedom is completely without meaning unless it is related to necessity...We must not think of the problem in terms of a choice between being determined and being free. We must look at it dialectically, and say that man is indeed determined, but that it is open to him to overcome necessity, and that this act is freedom. Freedom is not static but dynamic; not a vested interest, but a prize continually to be won. The moment man stops and resigns himself, he becomes subject to determinism. He is most enslaved when he thinks he is comfortably settled in freedom.
In the modern world, the most dangerous form of determinism is the technological phenomenon. It is not a question of getting rid of it, but, by an act of freedom, of transcending it. How is this to be done? I do not yet know. That is why [I] appeal to the individual's sense of responsibility. The first step in the quest, the first act of freedom, is to become aware of the necessity. The very fact that man can see, measure, and analyze the determinisms that press on him means that he can face them and, by so doing, act as a free man. If man were to say: "These are not necessities; I am free because of technique, or despite technique," this would prove that he is totally determined. However, by grasping the real nature of the technological phenomenon, and the extent to which it is robbing him of freedom, he confronts the blind mechanisms as a conscious being.
If man--if each one of us--abdicates his responsibilities with regard to values; if each of us limits himself to leading a trivial existence in a technological civilization, with greater adaptation and increasing success as his sole objectives; if we do not even consider making a stand against these determinants, then everything will happen as I have described it, and the determinants will be transformed into inevitabilities...
[My] purpose is to arouse...an awareness of technological necessity and what it means. It is a call to the sleeper to awake.
From The Technological Society by Jacques Ellul 1964, Alfred Knopf Publ. N.Y.
__MACOSX/Freedom, Privacy and Tech./._Ellul.doc
Freedom, Privacy and Tech./foucault%20panoptican%20intro%20by%20Felluga.doc
Felluga, Dino. "Modules on Foucault: On History." Introductory Guide to Critical Theory.
<http://www.purdue.edu/guidetotheory/newhistoricism/modules/foucaulthistory.html>.
MICHEL FOUCAULT seeks throughout his work to make sense of how our contemporary society is structured differently from the society that preceded us. He has been particularly influential precisely because he tends to overturn accepted wisdom, illustrating the dangers inherent in those Enlightenment reforms that were designed to correct the barbarity of previous periods (the elimination of dungeons, the modernization of medicine, the creation of the public university, etc.). As Foucault illustrates, each process of modernization entails disturbing effects with regard to the
power
of the individual and the control of government. Indeed, his most influential work,
Discipline and Punish: The Birth of the Prison, paints a picture of contemporary society that sometimes resembles George Orwell's
1984. He explores the ways that government has claimed ever greater control over and enforcement of ever more private aspects of our lives.
In particular, Foucault explores the transition from what he terms a "culture of spectacle" to a "carceral culture." Whereas in the former punishment was effected on the body in public displays of torture, dismemberment, and obliteration, in the latter punishment and discipline become internalized and directed to the constitution and, when necessary, rehabilitation of social subjects.
Jeremy Bentham's nineteenth-century prison reforms provide Foucault with a representative model for what happens to society in the nineteenth century. note Bentham argued in The "Panopticon" that the perfect prison would be structured in a such a way that cells would be open to a central tower. In the model, individuals in the cells do not interact with each other and are constantly confronted by the panoptic tower (pan=all; optic=seeing). They cannot, however, see when there is a person in the tower; they must believe that they could be watched at any moment: "the inmate must never know whether he is being looked at at any one moment; but he must be sure that he may always be so" ( Foucault, Discipline 201 ).
Bentham saw this prison reform as a model for how society should function. To maintain order in a democratic and capitalist society, the populace needs to believe that any person could be surveilled at any time. In time, such a structure would ensure that the people would soon internalize the panoptic tower and police themselves: "He who is subjected to a field of visibility, and who knows it, assumes responsibility for the constraints of
power
; he makes them play spontaneously upon himself; he inscribes in himself the
power
relation in which he simultaneously plays both roles; he becomes the principle of his own subjection" (
Foucault,
Discipline 202-203
).
This system of control has, arguably, been aided in our own culture by new technological advancements that allow federal agencies to track your movement and behavior (the internet, telephones, cell phones, social security numbers, the census, ATMs, credit cards, and the ever increasing number of surveillance cameras in urban spaces). By carceral culture, Foucault refers to a culture in which the panoptic model of surveillance has been diffused as a principle of social organization, affecting such disparate things as the university classroom (see right for a prison school that resembles some classroom auditoriums); urban planning (organized on a grid structure to facilitate movement but also to discourage concealment); hospital and factory architecture; and so on. As Foucault puts it, the Panopticon
is polyvalent in its applications; it serves to reform prisoner, but also to treat patients, to instruct schoolchildren, to confine the insane, to supervise workers, to put beggars and idlers to work. It is a type of location of bodies in space, of distribution of individuals in relation to one another, of hierarchical organization, of disposition of centres and channels of power , of definition of the instruments and modes of intervention of power , which can be implemented in hospitals, workshops, schools, prisons. Whenever one is dealing with a multiplicity of individuals on whom a task or a particular form of behaviour must be imposed, the panoptic schema may be used. ( Discipline 205 ).
"The panoptic schema, without disappearing as such or losing any of its properties, was destined to spread throughout the social body," Foucault explains; "its vocation was to become a generalized function" ( Discipline 207 ). The ultimate result is that we now live in the panoptic machine: "We are neither in the amphitheatre, nor on the stage, but in the panoptic machine, invested by its effects of power , which we bring to ourselves since we are part of its mechanism" ( Discipline 217 ).
Some of the effects of this new model of organization include :
1) the internalization of rules and regulations. As we naturalize rules, society could be said to become less willing to contest unjust laws. Of course, Foucault has Nazi Germany in mind when he thinks about conformity; however, studies of American society (Philip Zimbardo, Stanley Milgram) have suggested that Americans are, in fact, just as willing to follow authorities even when it means doing violence to innocent subjects.
2) rehabilitation rather than cruel and unusual punishment. This reform was implemented because of nineteenth-century outcries over the inhumane treatment of prisoners and the insane. Foucault however questions the subsequent emphasis on the "normal," which entails the enforcement of the status quo on ever more private aspects of our lives (for example, sexuality). As he puts it, "The judges of normality are present everywhere. We are in the society of the teacher-judge, the doctor-judge, the educator-judge, the 'social-worker'-judge; it is on them that the universal reign of the normative is based; and each individual, wherever he may find himself, subjects to it his body, his gestures, his behaviour, his aptitudes, his achievements" (
Discipline
304
).
3) surveillance into ever more private aspects of our lives, which, once again, is aided by new surveillance technology.
4) information society. All of this surveillance and information-gathering leads, of course, to huge challenges for the organization and retrieval of data. Perhaps the very move of society into this new mode of social organization made the invention of the computer inevitable since it allows us to organize ever more vast amounts of data.
5) bureaucracy. A new white-collar labor force is necessary to set up the procedures for information retrieval and storage. This form of organization encourages a separation from real people since it turns individuals into statistics and paperwork. A classic example is Nazi Germany's Adolf Eichmann.
6) efficiency. Value is placed on the most efficient means of organizing data and individuals to effect the mass production and dissemination of more goods and information, even if at the expense of exploitation or injustice.
7) specialization. Members of the workforce are organized into increasingly specialized fields, so much so that we increasingly rely on other "experts" to complete tasks that had previously been shared or common knowledge (the preparation of meats and other food products, building construction, transportation, etc.).
MICHEL FOUCAULT's understanding of power changes between his early work on institutions ( Madness and Civilization, The Birth of the Clinic, Discipline and Punish) and his later work on sexuality and governmentality. In the early work, Foucault sometimes gives a sense that power somehow inheres in institutions themselves rather than in the individuals that make those institutions function. Of course, what Foucault explores in those books is how the creation of modern disciplines, with their principles of order and control, tends to "disindividualize" power, making it seem as if power inheres in the prison, the school, the factory, and so on. The Panopticon (see previous module ) becomes Foucault's model for the way other institutions function: the Panopticon "is an important mechanism, for it automatizes and disindividualizes power. Power has its principle not so much in a person as in a certain concerted distribution of bodies, surfaces, lights, gazes; in an arrangement whose internal mechanisms produce the relation in which individuals are caught up" ( Discipline 202 ). Indeed, Bentham's goal was to create an architectural idea that, ultimately, could function on its own: it did not matter who exactly operated the machine: "Any individual, taken almost at random, can operate the machine: in the absence of the director, his family, his friends, his visitors, even his servants" ( Discipline 202 ). The idea of discipline itself similarly functions as an abstraction of the idea of power from any individual: "'Discipline' may be identified neither with an institution nor with an apparatus; it is a type of power, a modality for its exercise, comprising a whole set of instruments, techniques, procedures, levels of application, targets; it is a physics' or an 'anatomy' of power, a technology" ( Discipline 215 ). Bureaucracies, like disciplines, contribute to the process of disindividuation since they promote the facelessness of the bureaucrat ("I'm just doing my job"; "I'm just a cog in the machine") and tend to continue functioning even after major revolutions. (After the fall of Nazi Germany, for example, the general bureaucratic structure, and most of its workers, remained in place.)
The effect of this tendency to disindividualize power is the perception that power resides in the machine itself (the "panoptic machine"; the "technology" of power) rather than in its operator. For this reason, one can finish reading Foucault's Discipline and Punish with the paranoid feeling that we are powerless before such an effective and diffuse form of social control. Foucault makes clear in his later work, however, that power ultimately does inhere in individuals, including those that are surveilled or punished. It is true that contemporary forms of disciplinary organization allow ever larger number of people to be controlled by ever smaller numbers of "specialists"; however, as Foucault explains in "The Subject and Power," "something called Power, with or without a capital letter, which is assumed to exist universally in a concentrated or diffused form, does not exist. Power exists only when it is put into action" ( 219 ). Foucault therefore makes clear that, in itself, power "is not a renunciation of freedom, a transference of rights, the power of each and all delegated to a few" ( 220 ). Indeed, power is not the same as violence because the opposite pole of violence "can only be passivity" ( 220 ). By contrast, "a power relationship can only be articulated on the basis of two elements which are each indispensable if it is really to be a power relationship: that 'the other' (the one over whom power is exercised) be thoroughly recognized and maintained to the very end as a person who acts; and that, faced with a relationship of power, a whole field of responses, reactions, results, and possible inventions may open up" ( 220 ). Power always entails a set of actions performed upon another persons actions and reactions. Although violence may be a part of some power relationships, "In itself the exercise of power is not violence" ( 220 ); it is "always a way of acting upon an acting subject or acting subjects by virtue of their acting or being capable of action" ( 220 ).
Foucault therefore turns in his later work to the concept of "government" in order to explain how power functions:
Basically power is less a confrontation between two adversaries or the linking of one to the other than a question of government. This word must be allowed the very broad meaning which it had in the sixteenth century. "Government" did not refer only to political structures or to the management of states; rather it designated the way in which the conduct of individuals or of groups might be directed: the government of children, of souls, of communities, of families, of the sick. It did not only cover the legitimately constituted forms of political or economic subjection, but also modes of action, more or less considered and calculated, which were destined to act upon the possibilities of action of other people. To govern, in this sense, is to structure the possible field of action of others. The relationship proper to power would not therefore be sought on the side of violence or of struggle, nor on that of voluntary linking (all of which can, at best, only be the instruments of power), but rather in the area of the singular mode of action, neither warlike nor juridical, which is government. ( 221 )
The turn to this concept of "government" allowed Foucault to include a new element to his understanding of power: freedom. "Power is exercised only over free subjects, and only insofar as they are free" ( 221 ), Foucault explains. Conversely, "slavery is not a power relationship when man is in chains. (In this case it is a question of a physical relationship of constraint.)" ( 221 ). Indeed, recalcitrance thus becomes an integral part of the power relationship: "At the very heart of the power relationship, and constantly provoking it, are the recalcitrance of the will and the intransigence of freedom" ( 221-22 ). Foucault thus provides us with a powerful model for thinking about how to fight oppression when one sees it: "the analysis, elaboration, and bringing into question of power relations and the 'agonism' between power relations and the intransitivity of freedom is a permanent political task inherent in all social existence" ( 223 ).
__MACOSX/Freedom, Privacy and Tech./._foucault%20panoptican%20intro%20by%20Felluga.doc
Freedom, Privacy and Tech./Foucault%20Panopticism%20exerpt.pdf
__MACOSX/Freedom, Privacy and Tech./._Foucault%20Panopticism%20exerpt.pdf
Freedom, Privacy and Tech./Free%20Will%20backup%20Brain%20on%20the%20Stand-2.docx
Free Will Supplement for the Brain on the Stand article
The discussion of Free Will in the Brain on the Stand article would benefit by a brief exposure to some of the thinking on Free Will. Go to the philosophy discussion forum of the Stuart Low Trust and scroll to #16 on Free Will. This is just an informal discussion guide, but it will serve our purposes. You don’t need to do the exercises they suggest.
http://www.slt.org.uk/notes-from-previous-sessions/
If you hunger for more, the Routledge Encyclopedia of Philosophy has a nice section:
Search for “Free Will”
http://www.rep.routledge.com/?authstatuscode=202
__MACOSX/Freedom, Privacy and Tech./._Free%20Will%20backup%20Brain%20on%20the%20Stand-2.docx
Freedom, Privacy and Tech./Free%20Will%20backup%20Brain%20on%20the%20Stand.docx
Free Will Supplement for the Brain on the Stand article
The discussion of Free Will in the Brain on the Stand article would benefit by a brief exposure to some of the thinking on Free Will. Go to the philosophy discussion forum of the Stuart Low Trust and scroll to #16 on Free Will. This is just an informal discussion guide, but it will serve our purposes. You don’t need to do the exercises they suggest.
http://www.slt.org.uk/notes-from-previous-sessions/
If you hunger for more, the Routledge Encyclopedia of Philosophy has a nice section:
Search for “Free Will”
http://www.rep.routledge.com/?authstatuscode=202
__MACOSX/Freedom, Privacy and Tech./._Free%20Will%20backup%20Brain%20on%20the%20Stand.docx
Freedom, Privacy and Tech./Free%20Will%20intro.doc
http://www.iep.utm.edu/f/freewill.htm
The Internet Encyclopedia of Philosophy_
Free Will
Kevin Timpe Why should we even care whether or not agents have free will? Probably the best reason for caring is that free will is closely related to two other important philosophical issues: freedom of action and moral responsibility. However, despite the close connection between these concepts, it is important not to conflate them.
We most often think that an agent’s free actions are those actions that she does as a result of exercising her free will. Consider a woman, Allison, who is contemplating a paradigmatic free action, such as whether or not to walk her dog. Allison might say to herself, “I know I should walk the dog—he needs the exercise. And while I don’t really want to walk him since it is cold outside, I think overall the best decision to make is that I should take him for a walk.” Thus, we see that one reason we care about free will is that it seems necessary for free action—Allison must first decide, or choose, to walk the dog before she actually takes him outside for his walk. If we assume that human actions are those actions that result from the rational capacities of humans, we then see that the possibility of free action depends on the possibility of free will: to say that an agent acted freely is minimally to say that the agent was successful in carrying out a free volition or choice.
Various philosophers have offered just such an account of freedom. Thomas Hobbes suggested that freedom consists in there being no external impediments to an agent doing what he wants to do: “A free agent is he that can do as he will, and forbear as he will, and that liberty is the absence of external impediments.” In An Enquiry Concerning Human Understanding, David Hume thought that free will (or "liberty," to use his term) is simply the “power of acting or of not acting, according to the determination of the will: that is, if we choose to remain at rest, we may; if we choose to move, we also may.… This hypothetical liberty is universally allowed to belong to everyone who is not a prisoner and in chains.” This suggests that freedom is simply the ability to select a course of action, and an agent is free if he is not being prevented by some external obstacle from completing that course of action. Thus, Hobbes and Hume would hold that Allison is free to walk her dog so long as nothing prevents her from carrying out her decision to walk her dog, and she is free not to walk her dog so long as nothing would compel her to walk her dog if she would decide not to.
-
a. Faculties Model of the Will
The faculties model of the will has its origin in the writings of ancient philosophers such as Plato and Aristotle , and it was the dominant view of the will for much of medieval and modern philosophy [see Descartes (1998) and the discussion of Aquinas in Stump (2003)]. It still has numerous proponents in the contemporary literature. What is distinct about free agents, according to this model, is their possession of certain powers or capacities. All living things possess some capacities, such as the capacities for growth and reproduction. What is unique about free agents, however, is that they also possess the capacities for intellection and volition. Another way of saying this is that free agents alone have the faculties of intellect and will. It is in virtue of having these additional faculties, and the interaction between them, that agents have free will.
The intellect, or the rational faculty, is the power of cognition. As a result of its cognitions, the intellect presents various things to the will as good under some description. To return to the case of Allison contemplating walking her dog, Allison’s intellect might evaluate walking the dog as good for the health of the dog. Furthermore, all agents that have an intellect also have a will. The will, or the volitional faculty, is an appetite for the good; that is, it is naturally drawn to goodness. The will, therefore, cannot pursue an option that the intellect presents as good in no way. The will is also able to command the other faculties; the will can command the body to move or the intellect to consider something. In the case of Allison, the will could command the body to pick up the leash, attach it to the dog, and go outside for a walk. As Aquinas , a proponent of the this view of the will, puts it: “Only an agent endowed with an intellect can act with a judgment which is free, in so far as it apprehends the common note of goodness; from which it can judge this or the other thing to be good. Consequently, wherever there is intellect, there is free will” ( Summa Theologiae, q. 59 a. 3). Thus, through the interaction between the intellect and will, an agent has free will to pursue something that it perceives as good.
__MACOSX/Freedom, Privacy and Tech./._Free%20Will%20intro.doc
Freedom, Privacy and Tech./Hiibel%20v.%20Nevada-2.doc
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 03—5554
LARRY D. HIIBEL, PETITIONER v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA, HUMBOLDT COUNTY, et al.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NEVADA
[June 21, 2004]
Justice Kennedy delivered the opinion of the Court.
The petitioner was arrested and convicted for refusing to identify himself during a stop allowed by Terry v. Ohio, 392 U.S. 1 (1968). He challenges his conviction under the Fourth and Fifth Amendment s to the United States Constitution, applicable to the States through the Fourteenth Amendment .
I
The sheriff’s department in Humboldt County, Nevada, received an afternoon telephone call reporting an assault. The caller reported seeing a man assault a woman in a red and silver GMC truck on Grass Valley Road. Deputy Sheriff Lee Dove was dispatched to investigate. When the officer arrived at the scene, he found the truck parked on the side of the road. A man was standing by the truck, and a young woman was sitting inside it. The officer observed skid marks in the gravel behind the vehicle, leading him to believe it had come to a sudden stop.
The officer approached the man and explained that he was investigating a report of a fight. The man appeared to be intoxicated. The officer asked him if he had “any identification on [him],” which we understand as a request to produce a driver’s license or some other form of written identification. The man refused and asked why the officer wanted to see identification. The officer responded that he was conducting an investigation and needed to see some identification. The unidentified man became agitated and insisted he had done nothing wrong. The officer explained that he wanted to find out who the man was and what he was doing there. After continued refusals to comply with the officer’s request for identification, the man began to taunt the officer by placing his hands behind his back and telling the officer to arrest him and take him to jail. This routine kept up for several minutes: the officer asked for identification 11 times and was refused each time. After warning the man that he would be arrested if he continued to refuse to comply, the officer placed him under arrest.
We now know that the man arrested on Grass Valley Road is Larry Dudley Hiibel. Hiibel was charged with “willfully resist[ing], delay[ing], or obstruct[ing] a public officer in discharging or attempting to discharge any legal duty of his office” in violation of Nev. Rev. Stat. (NRS) §199.280 (2003). The government reasoned that Hiibel had obstructed the officer in carrying out his duties under §171.123, a Nevada statute that defines the legal rights and duties of a police officer in the context of an investigative stop. Section 171.123 provides in relevant part:
“1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime.
. . . . .
“3. The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.”
Hiibel was tried in the Justice Court of Union Township. The court agreed that Hiibel’s refusal to identify himself as required by §171.123 “obstructed and delayed Dove as a public officer in attempting to discharge his duty” in violation of §199.280. App. 5. Hiibel was convicted and fined $250. The Sixth Judicial District Court affirmed, rejecting Hiibel’s argument that the application of §171.123 to his case violated the Fourth and Fifth Amendment s. On review the Supreme Court of Nevada rejected the Fourth Amendment challenge in a divided opinion. 118 Nev. 868, 59 P.3d 1201 (2002). Hiibel petitioned for rehearing, seeking explicit resolution of his Fifth Amendment challenge. The petition was denied without opinion. We granted certiorari. 540 U.S. 965 (2003).
II
NRS §171.123(3) is an enactment sometimes referred to as a “stop and identify” statute. See Ala. Code §15—5—30 (West 2003); Ark. Code Ann. §5—71—213(a)(1) (2004); Colo. Rev. Stat. §16—3—103(1) (2003); Del. Code Ann., Tit. 11, §§1902(a), 1321(6) (2003); Fla. Stat. §856.021(2) (2003); Ga. Code Ann. §16—11—36(b) (2003); Ill. Comp. Stat., ch. 725, §5/107—14 (2004); Kan. Stat. Ann. §22—2402(1) (2003); La. Code Crim. Proc. Ann., Art. 215.1(A) (West 2004); Mo. Rev. Stat. §84.710(2) (2003); Mont. Code Ann. §46—5—401(2)(a) (2003); Neb. Rev. Stat. §29—829 (2003); N. H. Rev. Stat. Ann. §§594:2 and 644:6 (Lexis 2003); N. M. Stat. Ann. §30—22—3 (2004); N. Y. Crim. Proc. Law §140.50(1) (West 2004); N. D. Cent. Code §29—29—21 (2003); R. I. Gen. Laws §12—7—1 (2003); Utah Code Ann. §77—7—15 (2003); Vt. Stat. Ann., Tit. 24, §1983 (Supp. 2003); Wis. Stat. §968.24 (2003). See also Note, Stop and Identify Statutes: A New Form of an Inadequate Solution to an Old Problem, 12 Rutgers L. J. 585 (1981); Note, Stop-and-Identify Statutes After Kolender v. Lawson: Exploring the Fourth and Fifth Amendment Issues, 69 Iowa L. Rev. 1057 (1984).
Stop and identify statutes often combine elements of traditional vagrancy laws with provisions intended to regulate police behavior in the course of investigatory stops. The statutes vary from State to State, but all permit an officer to ask or require a suspect to disclose his identity. A few States model their statutes on the Uniform Arrest Act, a model code that permits an officer to stop a person reasonably suspected of committing a crime and “demand of him his name, address, business abroad and whither he is going.” Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 344 (1942). Other statutes are based on the text proposed by the American Law Institute as part of the Institute’s Model Penal Code. See ALI, Model Penal Code, §250.6, Comment 4, pp. 392—393 (1980). The provision, originally designated §250.12, provides that a person who is loitering “under circumstances which justify suspicion that he may be engaged or about to engage in crime commits a violation if he refuses the request of a peace officer that he identify himself and give a reasonably credible account of the lawfulness of his conduct and purposes.” §250.12 (Tentative Draft No. 13) (1961). In some States, a suspect’s refusal to identify himself is a misdemeanor offense or civil violation; in others, it is a factor to be considered in whether the suspect has violated loitering laws. In other States, a suspect may decline to identify himself without penalty.
Stop and identify statutes have their roots in early English vagrancy laws that required suspected vagrants to face arrest unless they gave “a good Account of themselves,” 15 Geo. 2, ch. 5, §2 (1744), a power that itself reflected common-law rights of private persons to “arrest any suspicious night-walker, and detain him till he give a good account of himself … .” 2 W. Hawkins, Pleas of the Crown, ch. 13, §6, p. 130. (6th ed. 1787). In recent decades, the Court has found constitutional infirmity in traditional vagrancy laws. In Papachristou v. Jacksonville, 405 U.S. 156 (1972), the Court held that a traditional vagrancy law was void for vagueness. Its broad scope and imprecise terms denied proper notice to potential offenders and permitted police officers to exercise unfettered discretion in the enforcement of the law. See id., at 167—171.
The Court has recognized similar constitutional limitations on the scope and operation of stop and identify statutes. In Brown v. Texas, 443 U.S. 47 , 52 (1979), the Court invalidated a conviction for violating a Texas stop and identify statute on Fourth Amendment grounds. The Court ruled that the initial stop was not based on specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity. See id., at 51—52. Absent that factual basis for detaining the defendant, the Court held, the risk of “arbitrary and abusive police practices” was too great and the stop was impermissible. Id., at 52. Four Terms later, the Court invalidated a modified stop and identify statute on vagueness grounds. See Kolender v. Lawson, 461 U.S. 352 (1983). The California law in Kolender required a suspect to give an officer “ ‘credible and reliable’ ” identification when asked to identify himself. Id., at 360. The Court held that the statute was void because it provided no standard for determining what a suspect must do to comply with it, resulting in “ ‘virtually unrestrained power to arrest and charge persons with a violation.’ ” Id., at 360 (quoting Lewis v. New Orleans, 415 U.S. 130 , 135 (1974) (Powell, J., concurring in result)).
The present case begins where our prior cases left off. Here there is no question that the initial stop was based on reasonable suspicion, satisfying the Fourth Amendment requirements noted in Brown. Further, the petitioner has not alleged that the statute is unconstitutionally vague, as in Kolender. Here the Nevada statute is narrower and more precise. The statute in Kolender had been interpreted to require a suspect to give the officer “credible and reliable” identification. In contrast, the Nevada Supreme Court has interpreted NRS §171.123(3) to require only that a suspect disclose his name. See 118 Nev., at ___, 59 P.3d, at 1206 (opinion of Young, C. J.) (“The suspect is not required to provide private details about his background, but merely to state his name to an officer when reasonable suspicion exists”). As we understand it, the statute does not require a suspect to give the officer a driver’s license or any other document. Provided that the suspect either states his name or communicates it to the officer by other means–a choice, we assume, that the suspect may make–the statute is satisfied and no violation occurs . See id., at ___, 59 P.3d, at 1206—1207.
III
Hiibel argues that his conviction cannot stand because the officer’s conduct violated his Fourth Amendment rights. We disagree.
Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment . “[I]nterrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.” INS v. Delgado, 466 U.S. 210 , 216 (1984). Beginning with Terry v. Ohio, 392 U.S. 1 (1968), the Court has recognized that a law enforcement officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Delgado, supra, at 216; United States v. Brignoni-Ponce, 422 U.S. 873 , 881 (1975). To ensure that the resulting seizure is constitutionally reasonable, a Terry stop must be limited. The officer’s action must be “ ‘justified at its inception, and … reasonably related in scope to the circumstances which justified the interference in the first place.’ ” United States v. Sharpe, 470 U.S. 675 , 682 (1985) (quoting Terry, supra, at 20). For example, the seizure cannot continue for an excessive period of time, see United States v. Place, 462 U.S. 696 , 709 (1983), or resemble a traditional arrest, see Dunaway v. New York, 442 U.S. 200 , 212 (1979).
Our decisions make clear that questions concerning a suspect’s identity are a routine and accepted part of many Terry stops. See United States v. Hensley, 469 U.S. 221 , 229 (1985) (“[T]he ability to briefly stop [a suspect], ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice”); Hayes v. Florida, 470 U.S. 811 , 816 (1985) (“[I]f there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him, to question him briefly, or to detain him briefly while attempting to obtain additional information”); Adams v. Williams, 407 U.S. 143 , 146 (1972) (“A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time”).
Obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.
Although it is well established that an officer may ask a suspect to identify himself in the course of a Terry stop, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer. See Brown, 443 U.S., at 53, n. 3. Petitioner draws our attention to statements in prior opinions that, according to him, answer the question in his favor. In Terry, Justice White stated in a concurring opinion that a person detained in an investigative stop can be questioned but is “not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest.” 392 U.S., at 34. The Court cited this opinion in dicta in Berkemer v. McCarty, 468 U.S. 420 , 439 (1984), a decision holding that a routine traffic stop is not a custodial stop requiring the protections of Miranda v. Arizona, 384 U.S. 436 (1966). In the course of explaining why Terry stops have not been subject to Miranda, the Court suggested reasons why Terry stops have a “nonthreatening character,” among them the fact that a suspect detained during a Terry stop “is not obliged to respond” to questions. See Berkemer, supra, at 439, 440. According to petitioner, these statements establish a right to refuse to answer questions during a Terry stop.
We do not read these statements as controlling. The passages recognize that the Fourth Amendment does not impose obligations on the citizen but instead provides rights against the government. As a result, the Fourth Amendment itself cannot require a suspect to answer questions. This case concerns a different issue, however. Here, the source of the legal obligation arises from Nevada state law, not the Fourth Amendment . Further, the statutory obligation does not go beyond answering an officer’s request to disclose a name. See NRS §171.123(3) (“Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer”). As a result, we cannot view the dicta in Berkemer or Justice White’s concurrence in Terry as answering the question whether a State can compel a suspect to disclose his name during a Terry stop.
The principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop. The reasonableness of a seizure under the Fourth Amendment is determined “by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate government interests.” Delaware v. Prouse, 440 U.S. 648 , 654 (1979). The Nevada statute satisfies that standard. The request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop. The threat of criminal sanction helps ensure that the request for identity does not become a legal nullity. On the other hand, the Nevada statute does not alter the nature of the stop itself: it does not change its duration, Place, supra, at 709, or its location, Dunaway, supra, at 212. A state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures.
Petitioner argues that the Nevada statute circumvents the probable cause requirement, in effect allowing an officer to arrest a person for being suspicious. According to petitioner, this creates a risk of arbitrary police conduct that the Fourth Amendment does not permit. Brief for Petitioner 28—33. These are familiar concerns; they were central to the opinion in Papachristou, and also to the decisions limiting the operation of stop and identify statutes in Kolender and Brown. Petitioner’s concerns are met by the requirement that a Terry stop must be justified at its inception and “reasonably related in scope to the circumstances which justified” the initial stop. 392 U.S., at 20. Under these principles, an officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop. The Court noted a similar limitation in Hayes, where it suggested that Terry may permit an officer to determine a suspect’s identity by compelling the suspect to submit to fingerprinting only if there is “a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection with that crime.” 470 U.S., at 817. It is clear in this case that the request for identification was “reasonably related in scope to the circumstances which justified” the stop. Terry, supra, at 20. The officer’s request was a commonsense inquiry, not an effort to obtain an arrest for failure to identify after a Terry stop yielded insufficient evidence. The stop, the request, and the State’s requirement of a response did not contravene the guarantees of the Fourth Amendment .
IV
Petitioner further contends that his conviction violates the Fifth Amendment ’s prohibition on compelled self-incrimination. The Fifth Amendment states that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled. See United States v. Hubbell, 530 U.S. 27 , 34—38 (2000).
Respondents urge us to hold that the statements NRS §171.123(3) requires are nontestimonial, and so outside the Clause’s scope. We decline to resolve the case on that basis. “[T]o be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U.S. 201 , 210 (1988). See also Hubbell, 530 U.S., at 35. Stating one’s name may qualify as an assertion of fact relating to identity. Production of identity documents might meet the definition as well. As we noted in Hubbell, acts of production may yield testimony establishing “the existence, authenticity, and custody of items [the police seek].” Id., at 41. Even if these required actions are testimonial, however, petitioner’s challenge must fail because in this case disclosure of his name presented no reasonable danger of incrimination.
The Fifth Amendment prohibits only compelled testimony that is incriminating. See Brown v. Walker, 161 U.S. 591 , 598 (1896) (noting that where “the answer of the witness will not directly show his infamy, but only tend to disgrace him, he is bound to answer”). A claim of Fifth Amendment privilege must establish
“ ‘reasonable ground to apprehend danger to the witness from his being compelled to answer … . [T]he danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things,–not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.’ ” Id., at 599—600 (quoting Queen v. Boyes, 1 Best & S. 311, 321 (1861) (Cockburn, C. J.)).
As we stated in Kastigar v. United States, 406 U.S. 441 , 445 (1972), the Fifth Amendment privilege against compulsory self-incrimination “protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” Suspects who have been granted immunity from prosecution may, therefore, be compelled to answer; with the threat of prosecution removed, there can be no reasonable belief that the evidence will be used against them. See id., at 453.
In this case petitioner’s refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it “would furnish a link in the chain of evidence needed to prosecute” him. Hoffman v. United States, 341 U.S. 479 , 486 (1951). As best we can tell, petitioner refused to identify himself only because he thought his name was none of the officer’s business. Even today, petitioner does not explain how the disclosure of his name could have been used against him in a criminal case. While we recognize petitioner’s strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him.
The narrow scope of the disclosure requirement is also important. One’s identity is, by definition, unique; yet it is, in another sense, a universal characteristic. Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances. See Baltimore City Dept. of Social Servs. v. Bouknight, 493 U.S. 549 , 555 (1990) (suggesting that “fact[s] the State could readily establish” may render “any testimony regarding existence or authenticity [of them] insufficiently incriminating”); Cf. California v. Byers, 402 U.S. 424 , 432 (1971) (opinion of Burger, C. J.). In every criminal case, it is known and must be known who has been arrested and who is being tried. Cf. Pennsylvania v. Muniz, 496 U.S. 582 , 601—602 (1990) (opinion of Brennan, J.). Even witnesses who plan to invoke the Fifth Amendment privilege answer when their names are called to take the stand. Still, a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, the court can then consider whether the privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow. We need not resolve those questions here.
The judgment of the Nevada Supreme Court is
Affirmed.
No. 03—5554
LARRY D. HIIBEL, PETITIONER v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA, HUMBOLDT COUNTY, et al.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NEVADA
[June 21, 2004]
Justice Stevens, dissenting.
The Nevada law at issue in this case imposes a narrow duty to speak upon a specific class of individuals. The class includes only those persons detained by a police officer “under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime” 1 –persons who are, in other words, targets of a criminal investigation. The statute therefore is directed not “at the public at large,” but rather “at a highly selective group inherently suspect of criminal activities.” Albertson v. Subversive Activities Control Bd., 382 U.S. 70 , 79 (1965).
Under the Nevada law, a member of the targeted class “may not be compelled to answer” any inquiry except a command that he “identify himself.” 2 Refusal to identify oneself upon request is punishable as a crime. 3 Presumably the statute does not require the detainee to answer any other question because the Nevada Legislature realized that the Fifth Amendment prohibits compelling the target of a criminal investigation to make any other statement. In my judgment, the broad constitutional right to remain silent, which derives from the Fifth Amendment ’s guarantee that “[n]o person … shall be compelled in any criminal case to be a witness against himself,” U.S. Const., Amdt. 5, 4 is not as circumscribed as the Court suggests, and does not admit even of the narrow exception defined by the Nevada statute.
“[T]here can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.” Miranda v. Arizona, 384 U.S. 436 , 467 (1966). It is a “settled principle” that “the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes,” but “they have no right to compel them to answer.” Davis v. Mississipi, 394 U.S. 721 , 727, n. 6 (1969). The protections of the Fifth Amendment are directed squarely toward those who are the focus of the government’s investigative and prosecutorial powers. In a criminal trial, the indicted defendant has an unqualified right to refuse to testify and may not be punished for invoking that right. See Carter v. Kentucky, 450 U.S. 288 , 299—300 (1981). The unindicted target of a grand jury investigation enjoys the same constitutional protection even if he has been served with a subpoena. See Chavez v. Martinez, 538 U.S. 760 , 767—768 (2003). So does an arrested suspect during custodial interrogation in a police station. Miranda, 384 U.S., at 467.
There is no reason why the subject of police interrogation based on mere suspicion, rather than probable cause, should have any lesser protection. Indeed, we have said that the Fifth Amendment ’s protections apply with equal force in the context of Terry stops, see Terry v. Ohio, 392 U.S. 1 (1968), where an officer’s inquiry “must be ‘reasonably related in scope to the justification for [the stop’s] initiation.’ ” Berkemer v. McCarty, 468 U.S. 420 , 439 (1984) (some internal quotation marks omitted). “Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond.” Ibid. See also Terry, 392 U.S., at 34 (White, J., concurring) (“Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for arrest, although it may alert the officer to the need for continued observation”). Given our statements to the effect that citizens are not required to respond to police officers’ questions during a Terry stop, it is no surprise that petitioner assumed, as have we, that he had a right not to disclose his identity.
The Court correctly observes that a communication does not enjoy the Fifth Amendment privilege unless it is testimonial. Although the Court declines to resolve this question, ante, at 10—11, I think it clear that this case concerns a testimonial communication. Recognizing that whether a communication is testimonial is sometimes a “difficult question,” Doe v. United States, 487 U.S. 201 , 214—215 (1988), we have stated generally that “[i]t is the ‘extortion of information from the accused,’ the attempt to force him ‘to disclose the contents of his own mind,’ that implicates the Self-Incrimination Clause,” id., at 211 (citations omitted). While “[t]he vast majority of verbal statements thus will be testimonial and, to that extent at least, will fall within the privilege,” id., at 213—214, certain acts and physical evidence fall outside the privilege. 5 In all instances, we have afforded Fifth Amendment protec- tion if the disclosure in question was being admitted because of its content rather than some other aspect of the communication. 6
Considered in light of these precedents, the compelled statement at issue in this case is clearly testimonial. It is significant that the communication must be made in response to a question posed by a police officer. As we recently explained, albeit in the different context of the Sixth Amendment ’s Confrontation Clause, “[w]hatever else the term [‘testimonial’] covers, it applies at a minimum … to police interrogations.” Crawford v. Washington, 541 U.S. ___, ___ (2004) (slip op., at 33). Surely police questioning during a Terry stop qualifies as an interrogation, and it follows that responses to such questions are testimonial in nature.
Rather than determining whether the communication at issue is testimonial, the Court instead concludes that the State can compel the disclosure of one’s identity because it is not “incriminating.” Ante, at 11. But our cases have afforded Fifth Amendment protection to statements that are “incriminating” in a much broader sense than the Court suggests. It has “long been settled that [the Fifth Amendment ’s] protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence.” United States v. Hubbell, 530 U.S. 27 , 37 (2000). By “incriminating” we have meant disclosures that “could be used in a criminal prosecution or could lead to other evidence that might be so used,” Kastigar v. United States, 406 U.S. 441 , 445 (1972)–communications, in other words, that “would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime,” Hoffman v. United States, 341 U.S. 479 , 486 (1951). Thus, “[c]ompelled testimony that communicates information that may ‘lead to incriminating evidence’ is privileged even if the information itself is not inculpatory.” Hubbell, 530 U.S., at 38 (citing Doe, 487 U.S., at 208, n. 6).
Given a proper understanding of the category of “incriminating” communications that fall within the Fifth Amendment privilege, it is clear that the disclosure of petitioner’s identity is protected. The Court reasons that we should not assume that the disclosure of petitioner’s name would be used to incriminate him or that it would furnish a link in a chain of evidence needed to prosecute him. Ante, at 12—13. But why else would an officer ask for it? And why else would the Nevada Legislature require its disclosure only when circumstances “reasonably indicate that the person has committed, is committing or is about to commit a crime”? 7 If the Court is correct, then petitioner’s refusal to cooperate did not impede the police investigation. Indeed, if we accept the predicate for the Court’s holding, the statute requires nothing more than a useless invasion of privacy. I think that, on the contrary, the Nevada Legislature intended to provide its police officers with a useful law enforcement tool, and that the very existence of the statute demonstrates the value of the information it demands.
A person’s identity obviously bears informational and incriminating worth, “even if the [name] itself is not inculpatory.” Hubbell, 530 U.S., at 38. A name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law enforcement databases. And that information, in turn, can be tremendously useful in a criminal prosecution. It is therefore quite wrong to suggest that a person’s identity provides a link in the chain to incriminating evidence “only in unusual circumstances.” Ante, at 12.
The officer in this case told petitioner, in the Court’s words, that “he was conducting an investigation and needed to see some identification.” Ante, at 2. As the target of that investigation, petitioner, in my view, acted well within his rights when he opted to stand mute. Accordingly, I respectfully dissent.
Notes
1. Nev. Rev. Stat. §171.123(1) (2003).
2. §171.123(3).
3. In this case, petitioner was charged with violating §199.280, which makes it a crime to “willfully resis[t], dela[y] or obstruc[t] a public officer in discharging or attempting to discharge any legal duty of his office.” A violation of that provision is a misdemeanor unless a dangerous weapon is involved.
4. The Fifth Amendment ’s protection against compelled self-incrimination applies to the States through the Fourteenth Amendment ’s Due Process Clause. See Malloy v. Hogan, 378 U.S. 1 , 6 (1964).
5. A suspect may be made, for example, to provide a blood sample, Schmerber v. California, 384 U.S. 757 , 765 (1966), a voice exemplar, United States v. Dionisio, 410 U.S. 1 , 7 (1973), or a handwriting sample, Gilbert v. California, 388 U.S. 263 , 266—267 (1967).
6. See Pennsylvania v. Muniz, 496 U.S. 582 , 598—599 (1990) (respondent’s answer to the “birthday question” was protected because the “content of his truthful answer supported an inference that his mental faculties were impaired”); Doe v. United States, 487 U.S. 201 , 211, n. 10 (1988) (“The content itself must have testimonial significance”); Fisher v. United States, 425 U.S. 391 , 410—411 (1976) (“[H]owever incriminating the contents of the accountant’s workpapers might be, the act of producing them–the only thing which the taxpayer is compelled to do–would not itself involve testimonial self-incrimination”); Gilbert, 388 U.S., at 266—267 (“A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying characteristic outside its protection”); United States v. Wade, 388 U.S. 218 , 223 (1967) (“[I]t deserves emphasis that this case presents no question of the admissibility in evidence of anything Wade said or did at the lineup which implicates his privilege”).
7. Nev. Rev. Stat. §171.123(1) (2003). The Court suggests that furnishing identification also allows the investigating officer to assess the threat to himself and others. See ante, at 8. But to the extent that officer or public safety is immediately at issue, that concern is sufficiently alleviated by the officer’s ability to perform a limited patdown search for weapons. See Terry v. Ohio, 392 U.S. 1 , 25—26 (1968).
Breyer, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 03—5554
LARRY D. HIIBEL, PETITIONER v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA, HUMBOLDT COUNTY, et al.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NEVADA
[June 21, 2004]
Justice Breyer, with whom Justice Souter and Justice Ginsburg join, dissenting.
Notwithstanding the vagrancy statutes to which the majority refers, see ante, at 4—5, this Court’s Fourth Amendment precedents make clear that police may conduct a Terry stop only within circumscribed limits. And one of those limits invalidates laws that compel responses to police questioning.
In Terry v. Ohio, 392 U.S. 1 (1968), the Court considered whether police, in the absence of probable cause, can stop, question, or frisk an individual at all. The Court recognized that the Fourth Amendment protects the “ ‘right of every individual to the possession and control of his own person.’ ” Id., at 9 (quoting Union Pacific R. Co. v. Botsford, 141 U.S. 250 , 251 (1891)). At the same time, it recognized that in certain circumstances, public safety might require a limited “seizure,” or stop, of an individual against his will. The Court consequently set forth conditions circumscribing when and how the police might conduct a Terry stop. They include what has become known as the “reasonable suspicion” standard. 392 U.S. , at 20—22. Justice White, in a separate concurring opinion, set forth further conditions. Justice White wrote: “Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.” Id., at 34.
About 10 years later, the Court, in Brown v. Texas, 443 U.S. 47 (1979), held that police lacked “any reasonable suspicion” to detain the particular petitioner and require him to identify himself. Id., at 53. The Court noted that the trial judge had asked the following: “I’m sure [officers conducting a Terry stop] should ask everything they possibly could find out. What I’m asking is what’s the State’s interest in putting a man in jail because he doesn’t want to answer . . . .” Id., at 54 (Appendix to opinion of the Court) (emphasis in original). The Court referred to Justice White’s Terry concurrence. 443 U.S. , at 53, n. 3. And it said that it “need not decide” the matter. Ibid.
Then, five years later, the Court wrote that an “officer may ask the [Terry] detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond.” Berkemer v. McCarty, 468 U.S. 420 , 439 (1984) (emphasis added). See also Kolender v. Lawson, 461 U.S. 352 , 365 (1983) (Brennan, J., concurring) ( Terry suspect “must be free to . . . decline to answer the questions put to him”); Illinois v. Wardlow, 528 U.S. 119 , 125 (2000) (stating that allow- ing officers to stop and question a fleeing person “is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning”).
This lengthy history–of concurring opinions, of references, and of clear explicit statements–means that the Court’s statement in Berkemer, while technically dicta, is the kind of strong dicta that the legal community typically takes as a statement of the law. And that law has remained undisturbed for more than 20 years.
There is no good reason now to reject this generation-old statement of the law. There are sound reasons rooted in Fifth Amendment considerations for adhering to this Fourth Amendment legal condition circumscribing police authority to stop an individual against his will. See ante, at 1—6 (Stevens, J., dissenting). Administrative considerations also militate against change. Can a State, in addition to requiring a stopped individual to answer “What’s your name?” also require an answer to “What’s your license number?” or “Where do you live?” Can a police officer, who must know how to make a Terry stop, keep track of the constitutional answers? After all, answers to any of these questions may, or may not, incriminate, depending upon the circumstances.
Indeed, as the majority points out, a name itself–even if it is not “Killer Bill” or “Rough ’em up Harry”–will sometimes provide the police with “a link in the chain of evidence needed to convict the individual of a separate offense.” Ante, at 12—13. The majority reserves judgment about whether compulsion is permissible in such instances. Ante, at 13. How then is a police officer in the midst of a Terry stop to distinguish between the majority’s ordinary case and this special case where the majority reserves judgment?
The majority presents no evidence that the rule enunciated by Justice White and then by the Berkemer Court, which for nearly a generation has set forth a settled Terry- stop condition, has significantly interfered with law enforcement. Nor has the majority presented any other convincing justification for change. I would not begin to erode a clear rule with special exceptions.
I consequently dissent.
__MACOSX/Freedom, Privacy and Tech./._Hiibel%20v.%20Nevada-2.doc
Freedom, Privacy and Tech./Hiibel%20v.%20Nevada.doc
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 03—5554
LARRY D. HIIBEL, PETITIONER v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA, HUMBOLDT COUNTY, et al.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NEVADA
[June 21, 2004]
Justice Kennedy delivered the opinion of the Court.
The petitioner was arrested and convicted for refusing to identify himself during a stop allowed by Terry v. Ohio, 392 U.S. 1 (1968). He challenges his conviction under the Fourth and Fifth Amendment s to the United States Constitution, applicable to the States through the Fourteenth Amendment .
I
The sheriff’s department in Humboldt County, Nevada, received an afternoon telephone call reporting an assault. The caller reported seeing a man assault a woman in a red and silver GMC truck on Grass Valley Road. Deputy Sheriff Lee Dove was dispatched to investigate. When the officer arrived at the scene, he found the truck parked on the side of the road. A man was standing by the truck, and a young woman was sitting inside it. The officer observed skid marks in the gravel behind the vehicle, leading him to believe it had come to a sudden stop.
The officer approached the man and explained that he was investigating a report of a fight. The man appeared to be intoxicated. The officer asked him if he had “any identification on [him],” which we understand as a request to produce a driver’s license or some other form of written identification. The man refused and asked why the officer wanted to see identification. The officer responded that he was conducting an investigation and needed to see some identification. The unidentified man became agitated and insisted he had done nothing wrong. The officer explained that he wanted to find out who the man was and what he was doing there. After continued refusals to comply with the officer’s request for identification, the man began to taunt the officer by placing his hands behind his back and telling the officer to arrest him and take him to jail. This routine kept up for several minutes: the officer asked for identification 11 times and was refused each time. After warning the man that he would be arrested if he continued to refuse to comply, the officer placed him under arrest.
We now know that the man arrested on Grass Valley Road is Larry Dudley Hiibel. Hiibel was charged with “willfully resist[ing], delay[ing], or obstruct[ing] a public officer in discharging or attempting to discharge any legal duty of his office” in violation of Nev. Rev. Stat. (NRS) §199.280 (2003). The government reasoned that Hiibel had obstructed the officer in carrying out his duties under §171.123, a Nevada statute that defines the legal rights and duties of a police officer in the context of an investigative stop. Section 171.123 provides in relevant part:
“1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime.
. . . . .
“3. The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.”
Hiibel was tried in the Justice Court of Union Township. The court agreed that Hiibel’s refusal to identify himself as required by §171.123 “obstructed and delayed Dove as a public officer in attempting to discharge his duty” in violation of §199.280. App. 5. Hiibel was convicted and fined $250. The Sixth Judicial District Court affirmed, rejecting Hiibel’s argument that the application of §171.123 to his case violated the Fourth and Fifth Amendment s. On review the Supreme Court of Nevada rejected the Fourth Amendment challenge in a divided opinion. 118 Nev. 868, 59 P.3d 1201 (2002). Hiibel petitioned for rehearing, seeking explicit resolution of his Fifth Amendment challenge. The petition was denied without opinion. We granted certiorari. 540 U.S. 965 (2003).
II
NRS §171.123(3) is an enactment sometimes referred to as a “stop and identify” statute. See Ala. Code §15—5—30 (West 2003); Ark. Code Ann. §5—71—213(a)(1) (2004); Colo. Rev. Stat. §16—3—103(1) (2003); Del. Code Ann., Tit. 11, §§1902(a), 1321(6) (2003); Fla. Stat. §856.021(2) (2003); Ga. Code Ann. §16—11—36(b) (2003); Ill. Comp. Stat., ch. 725, §5/107—14 (2004); Kan. Stat. Ann. §22—2402(1) (2003); La. Code Crim. Proc. Ann., Art. 215.1(A) (West 2004); Mo. Rev. Stat. §84.710(2) (2003); Mont. Code Ann. §46—5—401(2)(a) (2003); Neb. Rev. Stat. §29—829 (2003); N. H. Rev. Stat. Ann. §§594:2 and 644:6 (Lexis 2003); N. M. Stat. Ann. §30—22—3 (2004); N. Y. Crim. Proc. Law §140.50(1) (West 2004); N. D. Cent. Code §29—29—21 (2003); R. I. Gen. Laws §12—7—1 (2003); Utah Code Ann. §77—7—15 (2003); Vt. Stat. Ann., Tit. 24, §1983 (Supp. 2003); Wis. Stat. §968.24 (2003). See also Note, Stop and Identify Statutes: A New Form of an Inadequate Solution to an Old Problem, 12 Rutgers L. J. 585 (1981); Note, Stop-and-Identify Statutes After Kolender v. Lawson: Exploring the Fourth and Fifth Amendment Issues, 69 Iowa L. Rev. 1057 (1984).
Stop and identify statutes often combine elements of traditional vagrancy laws with provisions intended to regulate police behavior in the course of investigatory stops. The statutes vary from State to State, but all permit an officer to ask or require a suspect to disclose his identity. A few States model their statutes on the Uniform Arrest Act, a model code that permits an officer to stop a person reasonably suspected of committing a crime and “demand of him his name, address, business abroad and whither he is going.” Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 344 (1942). Other statutes are based on the text proposed by the American Law Institute as part of the Institute’s Model Penal Code. See ALI, Model Penal Code, §250.6, Comment 4, pp. 392—393 (1980). The provision, originally designated §250.12, provides that a person who is loitering “under circumstances which justify suspicion that he may be engaged or about to engage in crime commits a violation if he refuses the request of a peace officer that he identify himself and give a reasonably credible account of the lawfulness of his conduct and purposes.” §250.12 (Tentative Draft No. 13) (1961). In some States, a suspect’s refusal to identify himself is a misdemeanor offense or civil violation; in others, it is a factor to be considered in whether the suspect has violated loitering laws. In other States, a suspect may decline to identify himself without penalty.
Stop and identify statutes have their roots in early English vagrancy laws that required suspected vagrants to face arrest unless they gave “a good Account of themselves,” 15 Geo. 2, ch. 5, §2 (1744), a power that itself reflected common-law rights of private persons to “arrest any suspicious night-walker, and detain him till he give a good account of himself … .” 2 W. Hawkins, Pleas of the Crown, ch. 13, §6, p. 130. (6th ed. 1787). In recent decades, the Court has found constitutional infirmity in traditional vagrancy laws. In Papachristou v. Jacksonville, 405 U.S. 156 (1972), the Court held that a traditional vagrancy law was void for vagueness. Its broad scope and imprecise terms denied proper notice to potential offenders and permitted police officers to exercise unfettered discretion in the enforcement of the law. See id., at 167—171.
The Court has recognized similar constitutional limitations on the scope and operation of stop and identify statutes. In Brown v. Texas, 443 U.S. 47 , 52 (1979), the Court invalidated a conviction for violating a Texas stop and identify statute on Fourth Amendment grounds. The Court ruled that the initial stop was not based on specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity. See id., at 51—52. Absent that factual basis for detaining the defendant, the Court held, the risk of “arbitrary and abusive police practices” was too great and the stop was impermissible. Id., at 52. Four Terms later, the Court invalidated a modified stop and identify statute on vagueness grounds. See Kolender v. Lawson, 461 U.S. 352 (1983). The California law in Kolender required a suspect to give an officer “ ‘credible and reliable’ ” identification when asked to identify himself. Id., at 360. The Court held that the statute was void because it provided no standard for determining what a suspect must do to comply with it, resulting in “ ‘virtually unrestrained power to arrest and charge persons with a violation.’ ” Id., at 360 (quoting Lewis v. New Orleans, 415 U.S. 130 , 135 (1974) (Powell, J., concurring in result)).
The present case begins where our prior cases left off. Here there is no question that the initial stop was based on reasonable suspicion, satisfying the Fourth Amendment requirements noted in Brown. Further, the petitioner has not alleged that the statute is unconstitutionally vague, as in Kolender. Here the Nevada statute is narrower and more precise. The statute in Kolender had been interpreted to require a suspect to give the officer “credible and reliable” identification. In contrast, the Nevada Supreme Court has interpreted NRS §171.123(3) to require only that a suspect disclose his name. See 118 Nev., at ___, 59 P.3d, at 1206 (opinion of Young, C. J.) (“The suspect is not required to provide private details about his background, but merely to state his name to an officer when reasonable suspicion exists”). As we understand it, the statute does not require a suspect to give the officer a driver’s license or any other document. Provided that the suspect either states his name or communicates it to the officer by other means–a choice, we assume, that the suspect may make–the statute is satisfied and no violation occurs . See id., at ___, 59 P.3d, at 1206—1207.
III
Hiibel argues that his conviction cannot stand because the officer’s conduct violated his Fourth Amendment rights. We disagree.
Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment . “[I]nterrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.” INS v. Delgado, 466 U.S. 210 , 216 (1984). Beginning with Terry v. Ohio, 392 U.S. 1 (1968), the Court has recognized that a law enforcement officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Delgado, supra, at 216; United States v. Brignoni-Ponce, 422 U.S. 873 , 881 (1975). To ensure that the resulting seizure is constitutionally reasonable, a Terry stop must be limited. The officer’s action must be “ ‘justified at its inception, and … reasonably related in scope to the circumstances which justified the interference in the first place.’ ” United States v. Sharpe, 470 U.S. 675 , 682 (1985) (quoting Terry, supra, at 20). For example, the seizure cannot continue for an excessive period of time, see United States v. Place, 462 U.S. 696 , 709 (1983), or resemble a traditional arrest, see Dunaway v. New York, 442 U.S. 200 , 212 (1979).
Our decisions make clear that questions concerning a suspect’s identity are a routine and accepted part of many Terry stops. See United States v. Hensley, 469 U.S. 221 , 229 (1985) (“[T]he ability to briefly stop [a suspect], ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice”); Hayes v. Florida, 470 U.S. 811 , 816 (1985) (“[I]f there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him, to question him briefly, or to detain him briefly while attempting to obtain additional information”); Adams v. Williams, 407 U.S. 143 , 146 (1972) (“A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time”).
Obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.
Although it is well established that an officer may ask a suspect to identify himself in the course of a Terry stop, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer. See Brown, 443 U.S., at 53, n. 3. Petitioner draws our attention to statements in prior opinions that, according to him, answer the question in his favor. In Terry, Justice White stated in a concurring opinion that a person detained in an investigative stop can be questioned but is “not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest.” 392 U.S., at 34. The Court cited this opinion in dicta in Berkemer v. McCarty, 468 U.S. 420 , 439 (1984), a decision holding that a routine traffic stop is not a custodial stop requiring the protections of Miranda v. Arizona, 384 U.S. 436 (1966). In the course of explaining why Terry stops have not been subject to Miranda, the Court suggested reasons why Terry stops have a “nonthreatening character,” among them the fact that a suspect detained during a Terry stop “is not obliged to respond” to questions. See Berkemer, supra, at 439, 440. According to petitioner, these statements establish a right to refuse to answer questions during a Terry stop.
We do not read these statements as controlling. The passages recognize that the Fourth Amendment does not impose obligations on the citizen but instead provides rights against the government. As a result, the Fourth Amendment itself cannot require a suspect to answer questions. This case concerns a different issue, however. Here, the source of the legal obligation arises from Nevada state law, not the Fourth Amendment . Further, the statutory obligation does not go beyond answering an officer’s request to disclose a name. See NRS §171.123(3) (“Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer”). As a result, we cannot view the dicta in Berkemer or Justice White’s concurrence in Terry as answering the question whether a State can compel a suspect to disclose his name during a Terry stop.
The principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop. The reasonableness of a seizure under the Fourth Amendment is determined “by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate government interests.” Delaware v. Prouse, 440 U.S. 648 , 654 (1979). The Nevada statute satisfies that standard. The request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop. The threat of criminal sanction helps ensure that the request for identity does not become a legal nullity. On the other hand, the Nevada statute does not alter the nature of the stop itself: it does not change its duration, Place, supra, at 709, or its location, Dunaway, supra, at 212. A state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures.
Petitioner argues that the Nevada statute circumvents the probable cause requirement, in effect allowing an officer to arrest a person for being suspicious. According to petitioner, this creates a risk of arbitrary police conduct that the Fourth Amendment does not permit. Brief for Petitioner 28—33. These are familiar concerns; they were central to the opinion in Papachristou, and also to the decisions limiting the operation of stop and identify statutes in Kolender and Brown. Petitioner’s concerns are met by the requirement that a Terry stop must be justified at its inception and “reasonably related in scope to the circumstances which justified” the initial stop. 392 U.S., at 20. Under these principles, an officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop. The Court noted a similar limitation in Hayes, where it suggested that Terry may permit an officer to determine a suspect’s identity by compelling the suspect to submit to fingerprinting only if there is “a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection with that crime.” 470 U.S., at 817. It is clear in this case that the request for identification was “reasonably related in scope to the circumstances which justified” the stop. Terry, supra, at 20. The officer’s request was a commonsense inquiry, not an effort to obtain an arrest for failure to identify after a Terry stop yielded insufficient evidence. The stop, the request, and the State’s requirement of a response did not contravene the guarantees of the Fourth Amendment .
IV
Petitioner further contends that his conviction violates the Fifth Amendment ’s prohibition on compelled self-incrimination. The Fifth Amendment states that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled. See United States v. Hubbell, 530 U.S. 27 , 34—38 (2000).
Respondents urge us to hold that the statements NRS §171.123(3) requires are nontestimonial, and so outside the Clause’s scope. We decline to resolve the case on that basis. “[T]o be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U.S. 201 , 210 (1988). See also Hubbell, 530 U.S., at 35. Stating one’s name may qualify as an assertion of fact relating to identity. Production of identity documents might meet the definition as well. As we noted in Hubbell, acts of production may yield testimony establishing “the existence, authenticity, and custody of items [the police seek].” Id., at 41. Even if these required actions are testimonial, however, petitioner’s challenge must fail because in this case disclosure of his name presented no reasonable danger of incrimination.
The Fifth Amendment prohibits only compelled testimony that is incriminating. See Brown v. Walker, 161 U.S. 591 , 598 (1896) (noting that where “the answer of the witness will not directly show his infamy, but only tend to disgrace him, he is bound to answer”). A claim of Fifth Amendment privilege must establish
“ ‘reasonable ground to apprehend danger to the witness from his being compelled to answer … . [T]he danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things,–not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.’ ” Id., at 599—600 (quoting Queen v. Boyes, 1 Best & S. 311, 321 (1861) (Cockburn, C. J.)).
As we stated in Kastigar v. United States, 406 U.S. 441 , 445 (1972), the Fifth Amendment privilege against compulsory self-incrimination “protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” Suspects who have been granted immunity from prosecution may, therefore, be compelled to answer; with the threat of prosecution removed, there can be no reasonable belief that the evidence will be used against them. See id., at 453.
In this case petitioner’s refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it “would furnish a link in the chain of evidence needed to prosecute” him. Hoffman v. United States, 341 U.S. 479 , 486 (1951). As best we can tell, petitioner refused to identify himself only because he thought his name was none of the officer’s business. Even today, petitioner does not explain how the disclosure of his name could have been used against him in a criminal case. While we recognize petitioner’s strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him.
The narrow scope of the disclosure requirement is also important. One’s identity is, by definition, unique; yet it is, in another sense, a universal characteristic. Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances. See Baltimore City Dept. of Social Servs. v. Bouknight, 493 U.S. 549 , 555 (1990) (suggesting that “fact[s] the State could readily establish” may render “any testimony regarding existence or authenticity [of them] insufficiently incriminating”); Cf. California v. Byers, 402 U.S. 424 , 432 (1971) (opinion of Burger, C. J.). In every criminal case, it is known and must be known who has been arrested and who is being tried. Cf. Pennsylvania v. Muniz, 496 U.S. 582 , 601—602 (1990) (opinion of Brennan, J.). Even witnesses who plan to invoke the Fifth Amendment privilege answer when their names are called to take the stand. Still, a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, the court can then consider whether the privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow. We need not resolve those questions here.
The judgment of the Nevada Supreme Court is
Affirmed.
No. 03—5554
LARRY D. HIIBEL, PETITIONER v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA, HUMBOLDT COUNTY, et al.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NEVADA
[June 21, 2004]
Justice Stevens, dissenting.
The Nevada law at issue in this case imposes a narrow duty to speak upon a specific class of individuals. The class includes only those persons detained by a police officer “under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime” 1 –persons who are, in other words, targets of a criminal investigation. The statute therefore is directed not “at the public at large,” but rather “at a highly selective group inherently suspect of criminal activities.” Albertson v. Subversive Activities Control Bd., 382 U.S. 70 , 79 (1965).
Under the Nevada law, a member of the targeted class “may not be compelled to answer” any inquiry except a command that he “identify himself.” 2 Refusal to identify oneself upon request is punishable as a crime. 3 Presumably the statute does not require the detainee to answer any other question because the Nevada Legislature realized that the Fifth Amendment prohibits compelling the target of a criminal investigation to make any other statement. In my judgment, the broad constitutional right to remain silent, which derives from the Fifth Amendment ’s guarantee that “[n]o person … shall be compelled in any criminal case to be a witness against himself,” U.S. Const., Amdt. 5, 4 is not as circumscribed as the Court suggests, and does not admit even of the narrow exception defined by the Nevada statute.
“[T]here can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.” Miranda v. Arizona, 384 U.S. 436 , 467 (1966). It is a “settled principle” that “the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes,” but “they have no right to compel them to answer.” Davis v. Mississipi, 394 U.S. 721 , 727, n. 6 (1969). The protections of the Fifth Amendment are directed squarely toward those who are the focus of the government’s investigative and prosecutorial powers. In a criminal trial, the indicted defendant has an unqualified right to refuse to testify and may not be punished for invoking that right. See Carter v. Kentucky, 450 U.S. 288 , 299—300 (1981). The unindicted target of a grand jury investigation enjoys the same constitutional protection even if he has been served with a subpoena. See Chavez v. Martinez, 538 U.S. 760 , 767—768 (2003). So does an arrested suspect during custodial interrogation in a police station. Miranda, 384 U.S., at 467.
There is no reason why the subject of police interrogation based on mere suspicion, rather than probable cause, should have any lesser protection. Indeed, we have said that the Fifth Amendment ’s protections apply with equal force in the context of Terry stops, see Terry v. Ohio, 392 U.S. 1 (1968), where an officer’s inquiry “must be ‘reasonably related in scope to the justification for [the stop’s] initiation.’ ” Berkemer v. McCarty, 468 U.S. 420 , 439 (1984) (some internal quotation marks omitted). “Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond.” Ibid. See also Terry, 392 U.S., at 34 (White, J., concurring) (“Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for arrest, although it may alert the officer to the need for continued observation”). Given our statements to the effect that citizens are not required to respond to police officers’ questions during a Terry stop, it is no surprise that petitioner assumed, as have we, that he had a right not to disclose his identity.
The Court correctly observes that a communication does not enjoy the Fifth Amendment privilege unless it is testimonial. Although the Court declines to resolve this question, ante, at 10—11, I think it clear that this case concerns a testimonial communication. Recognizing that whether a communication is testimonial is sometimes a “difficult question,” Doe v. United States, 487 U.S. 201 , 214—215 (1988), we have stated generally that “[i]t is the ‘extortion of information from the accused,’ the attempt to force him ‘to disclose the contents of his own mind,’ that implicates the Self-Incrimination Clause,” id., at 211 (citations omitted). While “[t]he vast majority of verbal statements thus will be testimonial and, to that extent at least, will fall within the privilege,” id., at 213—214, certain acts and physical evidence fall outside the privilege. 5 In all instances, we have afforded Fifth Amendment protec- tion if the disclosure in question was being admitted because of its content rather than some other aspect of the communication. 6
Considered in light of these precedents, the compelled statement at issue in this case is clearly testimonial. It is significant that the communication must be made in response to a question posed by a police officer. As we recently explained, albeit in the different context of the Sixth Amendment ’s Confrontation Clause, “[w]hatever else the term [‘testimonial’] covers, it applies at a minimum … to police interrogations.” Crawford v. Washington, 541 U.S. ___, ___ (2004) (slip op., at 33). Surely police questioning during a Terry stop qualifies as an interrogation, and it follows that responses to such questions are testimonial in nature.
Rather than determining whether the communication at issue is testimonial, the Court instead concludes that the State can compel the disclosure of one’s identity because it is not “incriminating.” Ante, at 11. But our cases have afforded Fifth Amendment protection to statements that are “incriminating” in a much broader sense than the Court suggests. It has “long been settled that [the Fifth Amendment ’s] protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence.” United States v. Hubbell, 530 U.S. 27 , 37 (2000). By “incriminating” we have meant disclosures that “could be used in a criminal prosecution or could lead to other evidence that might be so used,” Kastigar v. United States, 406 U.S. 441 , 445 (1972)–communications, in other words, that “would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime,” Hoffman v. United States, 341 U.S. 479 , 486 (1951). Thus, “[c]ompelled testimony that communicates information that may ‘lead to incriminating evidence’ is privileged even if the information itself is not inculpatory.” Hubbell, 530 U.S., at 38 (citing Doe, 487 U.S., at 208, n. 6).
Given a proper understanding of the category of “incriminating” communications that fall within the Fifth Amendment privilege, it is clear that the disclosure of petitioner’s identity is protected. The Court reasons that we should not assume that the disclosure of petitioner’s name would be used to incriminate him or that it would furnish a link in a chain of evidence needed to prosecute him. Ante, at 12—13. But why else would an officer ask for it? And why else would the Nevada Legislature require its disclosure only when circumstances “reasonably indicate that the person has committed, is committing or is about to commit a crime”? 7 If the Court is correct, then petitioner’s refusal to cooperate did not impede the police investigation. Indeed, if we accept the predicate for the Court’s holding, the statute requires nothing more than a useless invasion of privacy. I think that, on the contrary, the Nevada Legislature intended to provide its police officers with a useful law enforcement tool, and that the very existence of the statute demonstrates the value of the information it demands.
A person’s identity obviously bears informational and incriminating worth, “even if the [name] itself is not inculpatory.” Hubbell, 530 U.S., at 38. A name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law enforcement databases. And that information, in turn, can be tremendously useful in a criminal prosecution. It is therefore quite wrong to suggest that a person’s identity provides a link in the chain to incriminating evidence “only in unusual circumstances.” Ante, at 12.
The officer in this case told petitioner, in the Court’s words, that “he was conducting an investigation and needed to see some identification.” Ante, at 2. As the target of that investigation, petitioner, in my view, acted well within his rights when he opted to stand mute. Accordingly, I respectfully dissent.
Notes
1. Nev. Rev. Stat. §171.123(1) (2003).
2. §171.123(3).
3. In this case, petitioner was charged with violating §199.280, which makes it a crime to “willfully resis[t], dela[y] or obstruc[t] a public officer in discharging or attempting to discharge any legal duty of his office.” A violation of that provision is a misdemeanor unless a dangerous weapon is involved.
4. The Fifth Amendment ’s protection against compelled self-incrimination applies to the States through the Fourteenth Amendment ’s Due Process Clause. See Malloy v. Hogan, 378 U.S. 1 , 6 (1964).
5. A suspect may be made, for example, to provide a blood sample, Schmerber v. California, 384 U.S. 757 , 765 (1966), a voice exemplar, United States v. Dionisio, 410 U.S. 1 , 7 (1973), or a handwriting sample, Gilbert v. California, 388 U.S. 263 , 266—267 (1967).
6. See Pennsylvania v. Muniz, 496 U.S. 582 , 598—599 (1990) (respondent’s answer to the “birthday question” was protected because the “content of his truthful answer supported an inference that his mental faculties were impaired”); Doe v. United States, 487 U.S. 201 , 211, n. 10 (1988) (“The content itself must have testimonial significance”); Fisher v. United States, 425 U.S. 391 , 410—411 (1976) (“[H]owever incriminating the contents of the accountant’s workpapers might be, the act of producing them–the only thing which the taxpayer is compelled to do–would not itself involve testimonial self-incrimination”); Gilbert, 388 U.S., at 266—267 (“A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying characteristic outside its protection”); United States v. Wade, 388 U.S. 218 , 223 (1967) (“[I]t deserves emphasis that this case presents no question of the admissibility in evidence of anything Wade said or did at the lineup which implicates his privilege”).
7. Nev. Rev. Stat. §171.123(1) (2003). The Court suggests that furnishing identification also allows the investigating officer to assess the threat to himself and others. See ante, at 8. But to the extent that officer or public safety is immediately at issue, that concern is sufficiently alleviated by the officer’s ability to perform a limited patdown search for weapons. See Terry v. Ohio, 392 U.S. 1 , 25—26 (1968).
Breyer, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 03—5554
LARRY D. HIIBEL, PETITIONER v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA, HUMBOLDT COUNTY, et al.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NEVADA
[June 21, 2004]
Justice Breyer, with whom Justice Souter and Justice Ginsburg join, dissenting.
Notwithstanding the vagrancy statutes to which the majority refers, see ante, at 4—5, this Court’s Fourth Amendment precedents make clear that police may conduct a Terry stop only within circumscribed limits. And one of those limits invalidates laws that compel responses to police questioning.
In Terry v. Ohio, 392 U.S. 1 (1968), the Court considered whether police, in the absence of probable cause, can stop, question, or frisk an individual at all. The Court recognized that the Fourth Amendment protects the “ ‘right of every individual to the possession and control of his own person.’ ” Id., at 9 (quoting Union Pacific R. Co. v. Botsford, 141 U.S. 250 , 251 (1891)). At the same time, it recognized that in certain circumstances, public safety might require a limited “seizure,” or stop, of an individual against his will. The Court consequently set forth conditions circumscribing when and how the police might conduct a Terry stop. They include what has become known as the “reasonable suspicion” standard. 392 U.S. , at 20—22. Justice White, in a separate concurring opinion, set forth further conditions. Justice White wrote: “Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.” Id., at 34.
About 10 years later, the Court, in Brown v. Texas, 443 U.S. 47 (1979), held that police lacked “any reasonable suspicion” to detain the particular petitioner and require him to identify himself. Id., at 53. The Court noted that the trial judge had asked the following: “I’m sure [officers conducting a Terry stop] should ask everything they possibly could find out. What I’m asking is what’s the State’s interest in putting a man in jail because he doesn’t want to answer . . . .” Id., at 54 (Appendix to opinion of the Court) (emphasis in original). The Court referred to Justice White’s Terry concurrence. 443 U.S. , at 53, n. 3. And it said that it “need not decide” the matter. Ibid.
Then, five years later, the Court wrote that an “officer may ask the [Terry] detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond.” Berkemer v. McCarty, 468 U.S. 420 , 439 (1984) (emphasis added). See also Kolender v. Lawson, 461 U.S. 352 , 365 (1983) (Brennan, J., concurring) ( Terry suspect “must be free to . . . decline to answer the questions put to him”); Illinois v. Wardlow, 528 U.S. 119 , 125 (2000) (stating that allow- ing officers to stop and question a fleeing person “is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning”).
This lengthy history–of concurring opinions, of references, and of clear explicit statements–means that the Court’s statement in Berkemer, while technically dicta, is the kind of strong dicta that the legal community typically takes as a statement of the law. And that law has remained undisturbed for more than 20 years.
There is no good reason now to reject this generation-old statement of the law. There are sound reasons rooted in Fifth Amendment considerations for adhering to this Fourth Amendment legal condition circumscribing police authority to stop an individual against his will. See ante, at 1—6 (Stevens, J., dissenting). Administrative considerations also militate against change. Can a State, in addition to requiring a stopped individual to answer “What’s your name?” also require an answer to “What’s your license number?” or “Where do you live?” Can a police officer, who must know how to make a Terry stop, keep track of the constitutional answers? After all, answers to any of these questions may, or may not, incriminate, depending upon the circumstances.
Indeed, as the majority points out, a name itself–even if it is not “Killer Bill” or “Rough ’em up Harry”–will sometimes provide the police with “a link in the chain of evidence needed to convict the individual of a separate offense.” Ante, at 12—13. The majority reserves judgment about whether compulsion is permissible in such instances. Ante, at 13. How then is a police officer in the midst of a Terry stop to distinguish between the majority’s ordinary case and this special case where the majority reserves judgment?
The majority presents no evidence that the rule enunciated by Justice White and then by the Berkemer Court, which for nearly a generation has set forth a settled Terry- stop condition, has significantly interfered with law enforcement. Nor has the majority presented any other convincing justification for change. I would not begin to erode a clear rule with special exceptions.
I consequently dissent.
__MACOSX/Freedom, Privacy and Tech./._Hiibel%20v.%20Nevada.doc
Freedom, Privacy and Tech./Jones%20v%20US%20GPS%20Supreme%20Ct.pdf
1 (Slip Opinion) OCTOBER TERM, 2011
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES v. JONES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 10–1259. Argued November 8, 2011—Decided January 23, 2012
The Government obtained a search warrant permitting it to install a Global-Positioning-System (GPS) tracking device on a vehicle regis- tered to respondent Jones’s wife. The warrant authorized installa- tion in the District of Columbia and within 10 days, but agents in- stalled the device on the 11th day and in Maryland. The Government then tracked the vehicle’s movements for 28 days. It subsequently secured an indictment of Jones and others on drug trafficking con- spiracy charges. The District Court suppressed the GPS data ob- tained while the vehicle was parked at Jones’s residence, but held the remaining data admissible because Jones had no reasonable expecta- tion of privacy when the vehicle was on public streets. Jones was convicted. The D. C. Circuit reversed, concluding that admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment.
Held: The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, consti- tutes a search under the Fourth Amendment. Pp. 3–12.
(a) The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unrea- sonable searches and seizures.” Here, the Government’s physical in- trusion on an “effect” for the purpose of obtaining information consti- tutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted. Pp. 3–4.
(b) This conclusion is consistent with this Court’s Fourth Amend- ment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the
2 UNITED STATES v. JONES
Syllabus
analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reason- able expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165, 176; Soldal v. Cook County, 506 U. S. 56, 64. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705—post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing an- other form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Gov- ernment’s position. Pp. 4–12.
(c) The Government’s alternative argument—that if the attach- ment and use of the device was a search, it was a reasonable one—is forfeited because it was not raised below. P. 12.
615 F. 3d 544, affirmed.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and SOTOMAYOR, JJ., joined. SOTOMAYOR, J., filed a concurring opinion. ALITO, J., filed an opinion concurring in the judgment, in which GINSBURG, BREYER, and KAGAN, JJ., joined.
_________________
_________________
1 Cite as: 565 U. S. ____ (2012)
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 10–1259
UNITED STATES, PETITIONER v. ANTOINE JONES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[January 23, 2012]
JUSTICE SCALIA delivered the opinion of the Court. We decide whether the attachment of a Global-
Positioning-System (GPS) tracking device to an individu- al’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.
I In 2004 respondent Antoine Jones, owner and operator
of a nightclub in the District of Columbia, came under suspicion of trafficking in narcotics and was made the target of an investigation by a joint FBI and Metropolitan Police Department task force. Officers employed various investigative techniques, including visual surveillance of the nightclub, installation of a camera focused on the front door of the club, and a pen register and wiretap covering Jones’s cellular phone.
Based in part on information gathered from these sources, in 2005 the Government applied to the United States District Court for the District of Columbia for a warrant authorizing the use of an electronic tracking device on the Jeep Grand Cherokee registered to Jones’s
2 UNITED STATES v. JONES
Opinion of the Court
wife. A warrant issued, authorizing installation of the de- vice in the District of Columbia and within 10 days.
On the 11th day, and not in the District of Columbia but in Maryland,1 agents installed a GPS tracking device on the undercarriage of the Jeep while it was parked in a public parking lot. Over the next 28 days, the Govern- ment used the device to track the vehicle’s movements, and once had to replace the device’s battery when the vehicle was parked in a different public lot in Maryland. By means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet, and communicated that location by cellular phone to a Gov- ernment computer. It relayed more than 2,000 pages of data over the 4-week period.
The Government ultimately obtained a multiple-count indictment charging Jones and several alleged co- conspirators with, as relevant here, conspiracy to distrib- ute and possess with intent to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of 21 U. S. C. §§841 and 846. Before trial, Jones filed a motion to suppress evidence obtained through the GPS device. The District Court granted the motion only in part, suppressing the data obtained while the vehicle was parked in the garage adjoining Jones’s residence. 451 F. Supp. 2d 71, 88 (2006). It held the remaining data admissible, because “ ‘[a] person traveling in an automo- bile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’ ” Ibid. (quoting United States v. Knotts, 460 U. S. 276, 281 (1983)). Jones’s trial in October 2006 produced a hung jury on the conspiracy count.
In March 2007, a grand jury returned another indict-
—————— 1 In this litigation, the Government has conceded noncompliance with
the warrant and has argued only that a warrant was not required. United States v. Maynard, 615 F. 3d 544, 566, n. (CADC 2010).
3 Cite as: 565 U. S. ____ (2012)
Opinion of the Court
ment, charging Jones and others with the same conspir- acy. The Government introduced at trial the same GPS- derived locational data admitted in the first trial, which connected Jones to the alleged conspirators’ stash house that contained $850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of cocaine base. The jury returned a guilty verdict, and the District Court sentenced Jones to life imprisonment.
The United States Court of Appeals for the District of Columbia Circuit reversed the conviction because of ad- mission of the evidence obtained by warrantless use of the GPS device which, it said, violated the Fourth Amend- ment. United States v. Maynard, 615 F. 3d 544 (2010). The D. C. Circuit denied the Government’s petition for rehearing en banc, with four judges dissenting. 625 F. 3d 766 (2010). We granted certiorari, 564 U. S. ___ (2011).
II A
The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It is beyond dispute that a vehicle is an “effect” as that term is used in the Amendment. United States v. Chadwick, 433 U. S. 1, 12 (1977). We hold that the Government’s installation of a GPS device on a target’s vehicle,2 and its use of that device to monitor the vehicle’s movements, constitutes a “search.”
—————— 2 As we have noted, the Jeep was registered to Jones’s wife. The Gov-
ernment acknowledged, however, that Jones was “the exclusive driver.” Id., at 555, n. (internal quotation marks omitted). If Jones was not the owner he had at least the property rights of a bailee. The Court of Appeals concluded that the vehicle’s registration did not affect his ability to make a Fourth Amendment objection, ibid., and the Govern- ment has not challenged that determination here. We therefore do not consider the Fourth Amendment significance of Jones’s status.
4 UNITED STATES v. JONES
Opinion of the Court
It is important to be clear about what occurred in this case: The Government physically occupied private proper- ty for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765), is a “case we have described as a ‘monument of English freedom’ ‘undoubtedly familiar’ to ‘every American statesman’ at the time the Constitution was adopted, and considered to be ‘the true and ultimate expression of constitutional law’ ” with regard to search and seizure. Brower v. County of Inyo, 489 U. S. 593, 596 (1989) (quoting Boyd v. United States, 116 U. S. 616, 626 (1886)). In that case, Lord Camden expressed in plain terms the significance of property rights in search-and- seizure analysis:
“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.” Entick, supra, at 817.
The text of the Fourth Amendment reflects its close con- nection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons, houses, papers, and effects” would have been superfluous.
Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law tres- pass, at least until the latter half of the 20th century. Kyllo v. United States, 533 U. S. 27, 31 (2001); Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 816 (2004). Thus, in Olmstead v. United States, 277 U. S.
5 Cite as: 565 U. S. ____ (2012)
Opinion of the Court
438 (1928), we held that wiretaps attached to telephone wires on the public streets did not constitute a Fourth Amendment search because “[t]here was no entry of the houses or offices of the defendants,” id., at 464.
Our later cases, of course, have deviated from that exclusively property-based approach. In Katz v. United States, 389 U. S. 347, 351 (1967), we said that “the Fourth Amendment protects people, not places,” and found a violation in attachment of an eavesdropping device to a public telephone booth. Our later cases have applied the analysis of Justice Harlan’s concurrence in that case, which said that a violation occurs when government offic- ers violate a person’s “reasonable expectation of privacy,” id., at 360. See, e.g., Bond v. United States, 529 U. S. 334 (2000); California v. Ciraolo, 476 U. S. 207 (1986); Smith v. Maryland, 442 U. S. 735 (1979).
The Government contends that the Harlan standard shows that no search occurred here, since Jones had no “reasonable expectation of privacy” in the area of the Jeep accessed by Government agents (its underbody) and in the locations of the Jeep on the public roads, which were visible to all. But we need not address the Government’s contentions, because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo, supra, at 34. As ex- plained, for most of our history the Fourth Amendment was understood to embody a particular concern for gov- ernment trespass upon the areas (“persons, houses, pa- pers, and effects”) it enumerates.3 Katz did not repudiate ——————
3 JUSTICE ALITO’s concurrence (hereinafter concurrence) doubts the wisdom of our approach because “it is almost impossible to think of late-18th-century situations that are analogous to what took place in this case.” Post, at 3 (opinion concurring in judgment). But in fact it posits a situation that is not far afield—a constable’s concealing himself
6 UNITED STATES v. JONES
Opinion of the Court
that understanding. Less than two years later the Court upheld defendants’ contention that the Government could not introduce against them conversations between other people obtained by warrantless placement of electronic surveillance devices in their homes. The opinion rejected the dissent’s contention that there was no Fourth Amendment violation “unless the conversational privacy of the homeowner himself is invaded.”4 Alderman v. United States, 394 U. S. 165, 176 (1969). “[W]e [do not] believe that Katz, by holding that the Fourth Amendment protects persons and their private conversations, was intended to withdraw any of the protection which the Amendment extends to the home . . . .” Id., at 180.
More recently, in Soldal v. Cook County, 506 U. S. 56 (1992), the Court unanimously rejected the argument that although a “seizure” had occurred “in a ‘technical’ sense” when a trailer home was forcibly removed, id., at 62, no Fourth Amendment violation occurred because law en- forcement had not “invade[d] the [individuals’] privacy,” id., at 60. Katz, the Court explained, established that “property rights are not the sole measure of Fourth ——————
in the target’s coach in order to track its movements. Ibid. There is no doubt that the information gained by that trespassory activity would be the product of an unlawful search—whether that information consisted of the conversations occurring in the coach, or of the destinations to which the coach traveled.
In any case, it is quite irrelevant whether there was an 18th-century analog. Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a “search” within the original meaning of the Fourth Amendment. Where, as here, the Government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.
4 Thus, the concurrence’s attempt to recast Alderman as meaning that individuals have a “legitimate expectation of privacy in all conversa- tions that [take] place under their roof,” post, at 6–7, is foreclosed by the Court’s opinion. The Court took as a given that the homeowner’s “conversational privacy” had not been violated.
7 Cite as: 565 U. S. ____ (2012)
Opinion of the Court
Amendment violations,” but did not “snuf[f ] out the previ- ously recognized protection for property.” 506 U. S., at 64. As Justice Brennan explained in his concurrence in Knotts, Katz did not erode the principle “that, when the Government does engage in physical intrusion of a consti- tutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.” 460 U. S., at 286 (opinion concurring in judgment). We have embodied that preservation of past rights in our very definition of “reasonable expectation of privacy” which we have said to be an expectation “that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Minnesota v. Carter, 525 U. S. 83, 88 (1998) (internal quotation marks omitted). Katz did not narrow the Fourth Amendment’s scope.5
The Government contends that several of our post-Katz cases foreclose the conclusion that what occurred here constituted a search. It relies principally on two cases in
—————— 5 The concurrence notes that post-Katz we have explained that “ ‘an
actual trespass is neither necessary nor sufficient to establish a consti- tutional violation.’ ” Post, at 6 (quoting United States v. Karo, 468 U. S. 705, 713 (1984)). That is undoubtedly true, and undoubtedly irrele- vant. Karo was considering whether a seizure occurred, and as the concurrence explains, a seizure of property occurs, not when there is a trespass, but “when there is some meaningful interference with an individual’s possessory interests in that property.” Post, at 2 (internal quotation marks omitted). Likewise with a search. Trespass alone does not qualify, but there must be conjoined with that what was present here: an attempt to find something or to obtain information.
Related to this, and similarly irrelevant, is the concurrence’s point that, if analyzed separately, neither the installation of the device nor its use would constitute a Fourth Amendment search. See ibid. Of course not. A trespass on “houses” or “effects,” or a Katz invasion of privacy, is not alone a search unless it is done to obtain information; and the obtaining of information is not alone a search unless it is achieved by such a trespass or invasion of privacy.
8 UNITED STATES v. JONES
Opinion of the Court
which we rejected Fourth Amendment challenges to “beepers,” electronic tracking devices that represent an- other form of electronic monitoring. The first case, Knotts, upheld against Fourth Amendment challenge the use of a “beeper” that had been placed in a container of chloroform, allowing law enforcement to monitor the location of the container. 460 U. S., at 278. We said that there had been no infringement of Knotts’ reasonable expectation of pri- vacy since the information obtained—the location of the automobile carrying the container on public roads, and the location of the off-loaded container in open fields near Knotts’ cabin—had been voluntarily conveyed to the pub- lic.6 Id., at 281–282. But as we have discussed, the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. The holding in Knotts addressed only the former, since the latter was not at issue. The beeper had been placed in the container before it came into Knotts’ possession, with the consent of the then-owner. 460 U. S., at 278. Knotts did not challenge that installation, and we specifically de- clined to consider its effect on the Fourth Amendment analysis. Id., at 279, n. Knotts would be relevant, per- haps, if the Government were making the argument that what would otherwise be an unconstitutional search is not such where it produces only public information. The Government does not make that argument, and we know of no case that would support it.
The second “beeper” case, United States v. Karo, 468 U. S. 705 (1984), does not suggest a different conclusion. There we addressed the question left open by Knotts, whether the installation of a beeper in a container ——————
6 Knotts noted the “limited use which the government made of the signals from this particular beeper,” 460 U. S., at 284; and reserved the question whether “different constitutional principles may be applicable” to “dragnet-type law enforcement practices” of the type that GPS tracking made possible here, ibid.
9 Cite as: 565 U. S. ____ (2012)
Opinion of the Court
amounted to a search or seizure. 468 U. S., at 713. As in Knotts, at the time the beeper was installed the container belonged to a third party, and it did not come into posses- sion of the defendant until later. 468 U. S., at 708. Thus, the specific question we considered was whether the in- stallation “with the consent of the original owner consti- tute[d] a search or seizure . . . when the container is deliv- ered to a buyer having no knowledge of the presence of the beeper.” Id., at 707 (emphasis added). We held not. The Government, we said, came into physical contact with the container only before it belonged to the defendant Karo; and the transfer of the container with the unmonitored beeper inside did not convey any information and thus did not invade Karo’s privacy. See id., at 712. That conclu- sion is perfectly consistent with the one we reach here. Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper’s presence, even though it was used to monitor the contain- er’s location. Cf. On Lee v. United States, 343 U. S. 747, 751–752 (1952) (no search or seizure where an informant, who was wearing a concealed microphone, was invited into the defendant’s business). Jones, who possessed the Jeep at the time the Government trespassorily inserted the information-gathering device, is on much different footing.
The Government also points to our exposition in New York v. Class, 475 U. S. 106 (1986), that “[t]he exterior of a car . . . is thrust into the public eye, and thus to examine it does not constitute a ‘search.’ ” Id., at 114. That state- ment is of marginal relevance here since, as the Govern- ment acknowledges, “the officers in this case did more than conduct a visual inspection of respondent’s vehicle,” Brief for United States 41 (emphasis added). By attaching the device to the Jeep, officers encroached on a protected area. In Class itself we suggested that this would make a difference, for we concluded that an officer’s momentary reaching into the interior of a vehicle did constitute a
10 UNITED STATES v. JONES
Opinion of the Court
search.7 475 U. S., at 114–115. Finally, the Government’s position gains little support
from our conclusion in Oliver v. United States, 466 U. S. 170 (1984), that officers’ information-gathering intrusion on an “open field” did not constitute a Fourth Amendment search even though it was a trespass at common law, id., at 183. Quite simply, an open field, unlike the curtilage of a home, see United States v. Dunn, 480 U. S. 294, 300 (1987), is not one of those protected areas enumerated in the Fourth Amendment. Oliver, supra, at 176–177. See also Hester v. United States, 265 U. S. 57, 59 (1924). The Government’s physical intrusion on such an area—unlike its intrusion on the “effect” at issue here—is of no Fourth Amendment significance.8
B The concurrence begins by accusing us of applying
“18th-century tort law.” Post, at 1. That is a distortion. What we apply is an 18th-century guarantee against un- reasonable searches, which we believe must provide at
—————— 7 The Government also points to Cardwell v. Lewis, 417 U. S. 583
(1974), in which the Court rejected the claim that the inspection of an impounded vehicle’s tire tread and the collection of paint scrapings from its exterior violated the Fourth Amendment. Whether the plural- ity said so because no search occurred or because the search was rea- sonable is unclear. Compare id., at 591 (opinion of Blackmun, J.) (“[W]e fail to comprehend what expectation of privacy was infringed”), with id., at 592 (“Under circumstances such as these, where probable cause exists, a warrantless examination of the exterior of a car is not unreasonable . . . ”).
8 Thus, our theory is not that the Fourth Amendment is concerned with “any technical trespass that led to the gathering of evidence.” Post, at 3 (ALITO, J., concurring in judgment) (emphasis added). The Fourth Amendment protects against trespassory searches only with regard to those items (“persons, houses, papers, and effects”) that it enumerates. The trespass that occurred in Oliver may properly be understood as a “search,” but not one “in the constitutional sense.” 466 U. S., at 170, 183.
11 Cite as: 565 U. S. ____ (2012)
Opinion of the Court
a minimum the degree of protection it afforded when it was adopted. The concurrence does not share that belief. It would apply exclusively Katz’s reasonable-expectation- of-privacy test, even when that eliminates rights that previously existed.
The concurrence faults our approach for “present[ing] particularly vexing problems” in cases that do not involve physical contact, such as those that involve the transmis- sion of electronic signals. Post, at 9. We entirely fail to understand that point. For unlike the concurrence, which would make Katz the exclusive test, we do not make tres- pass the exclusive test. Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.
In fact, it is the concurrence’s insistence on the exclusiv- ity of the Katz test that needlessly leads us into “particu- larly vexing problems” in the present case. This Court has to date not deviated from the understanding that mere visual observation does not constitute a search. See Kyllo, 533 U. S., at 31–32. We accordingly held in Knotts that “[a] person traveling in an automobile on public thorough- fares has no reasonable expectation of privacy in his movements from one place to another.” 460 U. S., at 281. Thus, even assuming that the concurrence is correct to say that “[t]raditional surveillance” of Jones for a 4-week period “would have required a large team of agents, multi- ple vehicles, and perhaps aerial assistance,” post, at 12, our cases suggest that such visual observation is constitu- tionally permissible. It may be that achieving the same result through electronic means, without an accompany- ing trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.
And answering it affirmatively leads us needlessly into additional thorny problems. The concurrence posits that “relatively short-term monitoring of a person’s movements
12 UNITED STATES v. JONES
Opinion of the Court
on public streets” is okay, but that “the use of longer term GPS monitoring in investigations of most offenses” is no good. Post, at 13 (emphasis added). That introduces yet another novelty into our jurisprudence. There is no prece- dent for the proposition that whether a search has oc- curred depends on the nature of the crime being investi- gated. And even accepting that novelty, it remains unexplained why a 4-week investigation is “surely” too long and why a drug-trafficking conspiracy involving sub- stantial amounts of cash and narcotics is not an “extra- ordinary offens[e]” which may permit longer observation. See post, at 13–14. What of a 2-day monitoring of a suspected purveyor of stolen electronics? Or of a 6-month monitoring of a suspected terrorist? We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.
III The Government argues in the alternative that even if
the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amend- ment because “officers had reasonable suspicion, and in- deed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.” Brief for United States 50–51. We have no occasion to consider this argument. The Government did not raise it below, and the D. C. Circuit therefore did not address it. See 625 F. 3d, at 767 (Ginsburg, Tatel, and Griffith, JJ., concur- ring in denial of rehearing en banc). We consider the argument forfeited. See Sprietsma v. Mercury Marine, 537 U. S. 51, 56, n. 4 (2002).
* * * The judgment of the Court of Appeals for the D. C.
Circuit is affirmed. It is so ordered.
_________________
_________________
1 Cite as: 565 U. S. ____ (2012)
SOTOMAYOR, J., concurring
SUPREME COURT OF THE UNITED STATES
No. 10–1259
UNITED STATES, PETITIONER v. ANTOINE JONES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[January 23, 2012]
JUSTICE SOTOMAYOR, concurring. I join the Court’s opinion because I agree that a search
within the meaning of the Fourth Amendment occurs, at a minimum, “[w]here, as here, the Government obtains information by physically intruding on a constitutionally protected area.” Ante, at 6, n. 3. In this case, the Gov- ernment installed a Global Positioning System (GPS) tracking device on respondent Antoine Jones’ Jeep without a valid warrant and without Jones’ consent, then used that device to monitor the Jeep’s movements over the course of four weeks. The Government usurped Jones’ property for the purpose of conducting surveillance on him, thereby invading privacy interests long afforded, and undoubtedly entitled to, Fourth Amendment protection. See, e.g., Silverman v. United States, 365 U. S. 505, 511– 512 (1961).
Of course, the Fourth Amendment is not concerned only with trespassory intrusions on property. See, e.g., Kyllo v. United States, 533 U. S. 27, 31–33 (2001). Rather, even in the absence of a trespass, “a Fourth Amendment search occurs when the government violates a subjective expecta- tion of privacy that society recognizes as reasonable.” Id., at 33; see also Smith v. Maryland, 442 U. S. 735, 740–741 (1979); Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring). In Katz, this Court enlarged its then-prevailing focus on property rights by announcing
2 UNITED STATES v. JONES
SOTOMAYOR, J., concurring
that the reach of the Fourth Amendment does not “turn upon the presence or absence of a physical intrusion.” Id., at 353. As the majority’s opinion makes clear, however, Katz’s reasonable-expectation-of-privacy test augmented, but did not displace or diminish, the common-law trespas- sory test that preceded it. Ante, at 8. Thus, “when the Government does engage in physical intrusion of a consti- tutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.” United States v. Knotts, 460 U. S. 276, 286 (1983) (Brennan, J., concurring in judgment); see also, e.g., Rakas v. Illinois, 439 U. S. 128, 144, n. 12 (1978). JUSTICE ALITO’s approach, which discounts altogether the constitu- tional relevance of the Government’s physical intrusion on Jones’ Jeep, erodes that longstanding protection for priva- cy expectations inherent in items of property that people possess or control. See post, at 5–7 (opinion concurring in judgment). By contrast, the trespassory test applied in the majority’s opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case.
Nonetheless, as JUSTICE ALITO notes, physical intrusion is now unnecessary to many forms of surveillance. Post, at 9–12. With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle track- ing devices or GPS-enabled smartphones. See United States v. Pineda-Moreno, 617 F. 3d 1120, 1125 (CA9 2010) (Kozinski, C. J., dissenting from denial of rehearing en banc). In cases of electronic or other novel modes of sur- veillance that do not depend upon a physical invasion on property, the majority opinion’s trespassory test may provide little guidance. But “[s]ituations involving merely the transmission of electronic signals without trespass
3 Cite as: 565 U. S. ____ (2012)
SOTOMAYOR, J., concurring
would remain subject to Katz analysis.” Ante, at 11. As JUSTICE ALITO incisively observes, the same technological advances that have made possible nontrespassory surveil- lance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations. Post, at 10–11. Under that rubric, I agree with JUSTICE ALITO that, at the very least, “longer term GPS monitoring in inves- tigations of most offenses impinges on expectations of privacy.” Post, at 13.
In cases involving even short-term monitoring, some unique attributes of GPS surveillance relevant to the Katz analysis will require particular attention. GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. See, e.g., People v. Weaver, 12 N. Y. 3d 433, 441–442, 909 N. E. 2d 1195, 1199 (2009) (“Disclosed in [GPS] data . . . will be trips the indisputably private na- ture of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meet- ing, the mosque, synagogue or church, the gay bar and on and on”). The Government can store such records and efficiently mine them for information years into the future. Pineda-Moreno, 617 F. 3d, at 1124 (opinion of Kozinski, C. J.). And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility.” Illi- nois v. Lidster, 540 U. S. 419, 426 (2004).
Awareness that the Government may be watching chills associational and expressive freedoms. And the Govern- ment’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net
4 UNITED STATES v. JONES
SOTOMAYOR, J., concurring
result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.” United States v. Cuevas-Perez, 640 F. 3d 272, 285 (CA7 2011) (Flaum, J., concurring).
I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably ex- pect that their movements will be recorded and aggregat- ed in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not regard as dispositive the fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques. See Kyllo, 533 U. S., at 35, n. 2; ante, at 11 (leaving open the possibility that duplicating traditional surveillance “through electronic means, without an ac- companying trespass, is an unconstitutional invasion of privacy”). I would also consider the appropriateness of entrusting to the Executive, in the absence of any over- sight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent “a too permeating police surveillance,” United States v. Di Re, 332 U. S. 581, 595 (1948).*
——————
* United States v. Knotts, 460 U. S. 276 (1983), does not foreclose the conclusion that GPS monitoring, in the absence of a physical intrusion, is a Fourth Amendment search. As the majority’s opinion notes, Knotts reserved the question whether “ ‘different constitutional principles may be applicable’ ” to invasive law enforcement practices such as GPS tracking. See ante, at 8, n. 6 (quoting 460 U. S., at 284).
United States v. Karo, 468 U. S. 705 (1984), addressed the Fourth
5 Cite as: 565 U. S. ____ (2012)
SOTOMAYOR, J., concurring
More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expecta- tion of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellu- lar providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medi- cations they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Gov- ernment of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases
——————
Amendment implications of the installation of a beeper in a container with the consent of the container’s original owner, who was aware that the beeper would be used for surveillance purposes. Id., at 707. Owners of GPS-equipped cars and smartphones do not contemplate that these devices will be used to enable covert surveillance of their movements. To the contrary, subscribers of one such service greeted a similar suggestion with anger. Quain, Changes to OnStar’s Privacy Terms Rile Some Users, N. Y. Times (Sept. 22, 2011), online at http://wheels.blogs.nytimes.com/2011/09/22/changes-to-onstars-privacy- terms-rile-some-users (as visited Jan. 19, 2012, and available in Clerk of Court’s case file). In addition, the bugged container in Karo lacked the close relationship with the target that a car shares with its owner. The bugged container in Karo was stationary for much of the Govern- ment’s surveillance. See 468 U. S., at 708–710. A car’s movements, by contrast, are its owner’s movements.
6 UNITED STATES v. JONES
SOTOMAYOR, J., concurring
to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. See Smith, 442 U. S., at 749 (Marshall, J., dissenting) (“Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes”); see also Katz, 389 U. S., at 351–352 (“[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitu- tionally protected”).
Resolution of these difficult questions in this case is unnecessary, however, because the Government’s physical intrusion on Jones’ Jeep supplies a narrower basis for decision. I therefore join the majority’s opinion.
_________________
_________________
1 Cite as: 565 U. S. ____ (2012)
ALITO, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
No. 10–1259
UNITED STATES, PETITIONER v. ANTOINE JONES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[January 23, 2012]
JUSTICE ALITO, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN join, concurring in the judgment.
This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique, the use of a Global Po- sitioning System (GPS) device to monitor a vehicle’s move- ments for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th-century tort law. By attaching a small GPS device1 to the under- side of the vehicle that respondent drove, the law enforce- ment officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels.2 And for this reason, the Court concludes, the installation and use of the GPS device constituted a search. Ante, at 3–4.
—————— 1 Although the record does not reveal the size or weight of the device
used in this case, there is now a device in use that weighs two ounces and is the size of a credit card. Tr. of Oral Arg. 27.
2 At common law, a suit for trespass to chattels could be maintained if there was a violation of “the dignitary interest in the inviolability of chattels,” but today there must be “some actual damage to the chattel before the action can be maintained.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser & Keeton on Law of Torts 87 (5th ed. 1984) (here- inafter Prosser & Keeton). Here, there was no actual damage to the vehicle to which the GPS device was attached.
2 UNITED STATES v. JONES
ALITO, J., concurring in judgment
This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.
I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.
I A
The Fourth Amendment prohibits “unreasonable searches and seizures,” and the Court makes very little effort to explain how the attachment or use of the GPS device fits within these terms. The Court does not contend that there was a seizure. A seizure of property occurs when there is “some meaningful interference with an in- dividual’s possessory interests in that property,” United States v. Jacobsen, 466 U. S. 109, 113 (1984), and here there was none. Indeed, the success of the surveillance technique that the officers employed was dependent on the fact that the GPS did not interfere in any way with the operation of the vehicle, for if any such interference had been detected, the device might have been discovered.
The Court does claim that the installation and use of the GPS constituted a search, see ante, at 3–4, but this con- clusion is dependent on the questionable proposition that these two procedures cannot be separated for purposes of Fourth Amendment analysis. If these two procedures are analyzed separately, it is not at all clear from the Court’s opinion why either should be regarded as a search. It is clear that the attachment of the GPS device was not itself a search; if the device had not functioned or if the officers had not used it, no information would have been obtained. And the Court does not contend that the use of the device constituted a search either. On the contrary, the Court
3 Cite as: 565 U. S. ____ (2012)
ALITO, J., concurring in judgment
accepts the holding in United States v. Knotts, 460 U. S. 276 (1983), that the use of a surreptitiously planted elec- tronic device to monitor a vehicle’s movements on public roads did not amount to a search. See ante, at 7.
The Court argues—and I agree—that “we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’ ” Ante, at 5 (quoting Kyllo v. United States, 533 U. S. 27, 34 (2001)). But it is almost impossible to think of late- 18th-century situations that are analogous to what took place in this case. (Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner?3) The Court’s theory seems to be that the concept of a search, as originally un- derstood, comprehended any technical trespass that led to the gathering of evidence, but we know that this is in- correct. At common law, any unauthorized intrusion on private property was actionable, see Prosser & Keeton 75, but a trespass on open fields, as opposed to the “curtilage” of a home, does not fall within the scope of the Fourth Amendment because private property outside the curtilage is not part of a “hous[e]” within the meaning of the Fourth Amendment. See Oliver v. United States, 466 U. S. 170 (1984); Hester v. United States, 265 U. S. 57 (1924).
B The Court’s reasoning in this case is very similar to that
in the Court’s early decisions involving wiretapping and electronic eavesdropping, namely, that a technical tres- pass followed by the gathering of evidence constitutes a
—————— 3 The Court suggests that something like this might have occurred in
1791, but this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience.
4 UNITED STATES v. JONES
ALITO, J., concurring in judgment
search. In the early electronic surveillance cases, the Court concluded that a Fourth Amendment search oc- curred when private conversations were monitored as a result of an “unauthorized physical penetration into the premises occupied” by the defendant. Silverman v. United States, 365 U. S. 505, 509 (1961). In Silverman, police officers listened to conversations in an attached home by inserting a “spike mike” through the wall that this house shared with the vacant house next door. Id., at 506. This procedure was held to be a search because the mike made contact with a heating duct on the other side of the wall and thus “usurp[ed] . . . an integral part of the premises.” Id., at 511.
By contrast, in cases in which there was no trespass, it was held that there was no search. Thus, in Olmstead v. United States, 277 U. S. 438 (1928), the Court found that the Fourth Amendment did not apply because “[t]he taps from house lines were made in the streets near the houses.” Id., at 457. Similarly, the Court concluded that no search occurred in Goldman v. United States, 316 U. S. 129, 135 (1942), where a “detectaphone” was placed on the outer wall of defendant’s office for the purpose of overhear- ing conversations held within the room.
This trespass-based rule was repeatedly criticized. In Olmstead, Justice Brandeis wrote that it was “immaterial where the physical connection with the telephone wires was made.” 277 U. S., at 479 (dissenting opinion). Al- though a private conversation transmitted by wire did not fall within the literal words of the Fourth Amendment, he argued, the Amendment should be understood as prohibit- ing “every unjustifiable intrusion by the government upon the privacy of the individual.” Id., at 478. See also, e.g., Silverman, supra, at 513 (Douglas, J., concurring) (“The concept of ‘an unauthorized physical penetration into the premises,’ on which the present decision rests seems to me beside the point. Was not the wrong . . . done when the
5 Cite as: 565 U. S. ____ (2012)
ALITO, J., concurring in judgment
intimacies of the home were tapped, recorded, or revealed? The depth of the penetration of the electronic device—even the degree of its remoteness from the inside of the house— is not the measure of the injury”); Goldman, supra, at 139 (Murphy, J., dissenting) (“[T]he search of one’s home or office no longer requires physical entry, for science has brought forth far more effective devices for the invasion of a person’s privacy than the direct and obvious methods of oppression which were detested by our forebears and which inspired the Fourth Amendment”).
Katz v. United States, 389 U. S. 347 (1967), finally did away with the old approach, holding that a trespass was not required for a Fourth Amendment violation. Katz in- volved the use of a listening device that was attached to the outside of a public telephone booth and that allowed police officers to eavesdrop on one end of the target’s phone conversation. This procedure did not physically intrude on the area occupied by the target, but the Katz Court “repudiate[ed]” the old doctrine, Rakas v. Illinois, 439 U. S. 128, 143 (1978), and held that “[t]he fact that the electronic device employed . . . did not happen to penetrate the wall of the booth can have no constitutional signifi- cance,” 389 U. S., at 353 (“[T]he reach of th[e] [Fourth] Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure”); see Rakas, supra, at 143 (describing Katz as holding that the “ca- pacity to claim the protection for the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place”); Kyllo, supra, at 32 (“We have since decou- pled violation of a person’s Fourth Amendment rights from trespassory violation of his property”). What mattered, the Court now held, was whether the conduct at issue “violated the privacy upon which [the defendant] justifi- ably relied while using the telephone booth.” Katz, supra,
6 UNITED STATES v. JONES
ALITO, J., concurring in judgment
at 353. Under this approach, as the Court later put it when
addressing the relevance of a technical trespass, “an actu- al trespass is neither necessary nor sufficient to establish a constitutional violation.” United States v. Karo, 468 U. S. 705, 713 (1984) (emphasis added). Ibid. (“Com- par[ing] Katz v. United States, 389 U. S. 347 (1967) (no trespass, but Fourth Amendment violation), with Oliver v. United States, 466 U. S. 170 (1984) (trespass, but no Fourth Amendment violation)”). In Oliver, the Court wrote:
“The existence of a property right is but one element in determining whether expectations of privacy are legitimate. ‘The premise that property interests con- trol the right of the Government to search and seize has been discredited.’ Katz, 389 U. S., at 353, (quot- ing Warden v. Hayden, 387 U. S. 294, 304 (1967); some internal quotation marks omitted).” 466 U. S., at 183.
II The majority suggests that two post-Katz decisions—
Soldal v. Cook County, 506 U. S. 56 (1992), and Alderman v. United States, 394 U. S. 165 (1969)—show that a tech- nical trespass is sufficient to establish the existence of a search, but they provide little support.
In Soldal, the Court held that towing away a trailer home without the owner’s consent constituted a seizure even if this did not invade the occupants’ personal privacy. But in the present case, the Court does not find that there was a seizure, and it is clear that none occurred.
In Alderman, the Court held that the Fourth Amend- ment rights of homeowners were implicated by the use of a surreptitiously planted listening device to monitor third- party conversations that occurred within their home. See 394 U. S., at 176–180. Alderman is best understood to
7 Cite as: 565 U. S. ____ (2012)
ALITO, J., concurring in judgment
mean that the homeowners had a legitimate expectation of privacy in all conversations that took place under their roof. See Rakas, 439 U. S., at 144, n. 12 (citing Alderman for the proposition that “the Court has not altogether abandoned use of property concepts in determining the presence or absence of the privacy interests protected by that Amendment”); 439 U. S., at 153 (Powell, J., concur- ring) (citing Alderman for the proposition that “property rights reflect society’s explicit recognition of a person’s au- thority to act as he wishes in certain areas, and there- fore should be considered in determining whether an individual’s expectations of privacy are reasonable); Karo, supra, at 732 (Stevens, J., concurring in part and dissent- ing in part) (citing Alderman in support of the proposition that “a homeowner has a reasonable expectation of privacy in the contents of his home, including items owned by others”).
In sum, the majority is hard pressed to find support in post-Katz cases for its trespass-based theory.
III Disharmony with a substantial body of existing case law
is only one of the problems with the Court’s approach in this case.
I will briefly note four others. First, the Court’s reason- ing largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation). Attaching such an object is generally regarded as so trivial that it does not provide a basis for recovery under modern tort law. See Prosser & Keeton §14, at 87 (harmless or trivial contact with personal prop- erty not actionable); D. Dobbs, Law of Torts 124 (2000) (same). But under the Court’s reasoning, this conduct
8 UNITED STATES v. JONES
ALITO, J., concurring in judgment
may violate the Fourth Amendment. By contrast, if long- term monitoring can be accomplished without committing a technical trespass—suppose, for example, that the Fed- eral Government required or persuaded auto manufactur- ers to include a GPS tracking device in every car—the Court’s theory would provide no protection.
Second, the Court’s approach leads to incongruous results. If the police attach a GPS device to a car and use the device to follow the car for even a brief time, under the Court’s theory, the Fourth Amendment applies. But if the police follow the same car for a much longer period using unmarked cars and aerial assistance, this tracking is not subject to any Fourth Amendment constraints.
In the present case, the Fourth Amendment applies, the Court concludes, because the officers installed the GPS device after respondent’s wife, to whom the car was regis- tered, turned it over to respondent for his exclusive use. See ante, at 8. But if the GPS had been attached prior to that time, the Court’s theory would lead to a different result. The Court proceeds on the assumption that re- spondent “had at least the property rights of a bailee,” ante, at 3, n. 2, but a bailee may sue for a trespass to chattel only if the injury occurs during the term of the bailment. See 8A Am. Jur. 2d, Bailment §166, pp. 685– 686 (2009). So if the GPS device had been installed before respondent’s wife gave him the keys, respondent would have no claim for trespass—and, presumably, no Fourth Amendment claim either.
Third, under the Court’s theory, the coverage of the Fourth Amendment may vary from State to State. If the events at issue here had occurred in a community property State4 or a State that has adopted the Uniform Marital
—————— 4 See, e.g., Cal. Family Code Ann. §760 (West 2004).
9 Cite as: 565 U. S. ____ (2012)
ALITO, J., concurring in judgment
Property Act,5 respondent would likely be an owner of the vehicle, and it would not matter whether the GPS was installed before or after his wife turned over the keys. In non-community-property States, on the other hand, the registration of the vehicle in the name of respondent’s wife would generally be regarded as presumptive evidence that she was the sole owner. See 60 C. J. S., Motor Vehicles §231, pp. 398–399 (2002); 8 Am. Jur. 2d, Automobiles §1208, pp. 859–860 (2007).
Fourth, the Court’s reliance on the law of trespass will present particularly vexing problems in cases involving surveillance that is carried out by making electronic, as opposed to physical, contact with the item to be tracked. For example, suppose that the officers in the present case had followed respondent by surreptitiously activating a stolen vehicle detection system that came with the car when it was purchased. Would the sending of a radio signal to activate this system constitute a trespass to chattels? Trespass to chattels has traditionally required a physical touching of the property. See Restatement (Se- cond) of Torts §217 and Comment e (1963 and 1964); Dobbs, supra, at 123. In recent years, courts have wres- tled with the application of this old tort in cases involving unwanted electronic contact with computer systems, and some have held that even the transmission of electrons that occurs when a communication is sent from one com- puter to another is enough. See, e.g., CompuServe, Inc. v. Cyber Promotions, Inc. 962 F. Supp. 1015, 1021 (SD Ohio 1997); Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559, 1566, n. 6 (1996). But may such decisions be followed in applying the Court’s trespass theory? Assuming that what matters under the Court’s theory is the law of tres- pass as it existed at the time of the adoption of the Fourth
—————— 5 See Uniform Marital Property Act §4, 9A U. L. A. 116 (1998).
10 UNITED STATES v. JONES
ALITO, J., concurring in judgment
Amendment, do these recent decisions represent a change in the law or simply the application of the old tort to new situations?
IV A
The Katz expectation-of-privacy test avoids the problems and complications noted above, but it is not without its own difficulties. It involves a degree of circularity, see Kyllo, 533 U. S., at 34, and judges are apt to confuse their own expectations of privacy with those of the hypothetical reasonable person to which the Katz test looks. See Minnesota v. Carter, 525 U. S. 83, 97 (1998) (SCALIA, J., concurring). In addition, the Katz test rests on the as- sumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. But technology can change those expectations. Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce sig- nificant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this develop- ment as inevitable.6
On the other hand, concern about new intrusions on privacy may spur the enactment of legislation to protect against these intrusions. This is what ultimately hap- pened with respect to wiretapping. After Katz, Congress
—————— 6 See, e.g., NPR, The End of Privacy http://www.npr.org/series/
114250076/the-end-of-privacy (all Internet materials as visited Jan. 20, 2012, and available in Clerk of Court’s case file); Time Magazine, Everything About You Is Being Tracked—Get Over It, Joel Stein, Mar. 21, 2011, Vol. 177, No. 11.
11 Cite as: 565 U. S. ____ (2012)
ALITO, J., concurring in judgment
did not leave it to the courts to develop a body of Fourth Amendment case law governing that complex subject. Instead, Congress promptly enacted a comprehensive statute, see 18 U. S. C. §§2510–2522 (2006 ed. and Supp. IV), and since that time, the regulation of wiretapping has been governed primarily by statute and not by case law.7
In an ironic sense, although Katz overruled Olmstead, Chief Justice Taft’s suggestion in the latter case that the regulation of wiretapping was a matter better left for Congress, see 277 U. S., at 465–466, has been borne out.
B Recent years have seen the emergence of many new
devices that permit the monitoring of a person’s move- ments. In some locales, closed-circuit television video monitoring is becoming ubiquitous. On toll roads, auto- matic toll collection systems create a precise record of the movements of motorists who choose to make use of that convenience. Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car’s location at any time so that roadside assistance may be provided if needed and the car may be found if it is stolen.
Perhaps most significant, cell phones and other wireless devices now permit wireless carriers to track and record the location of users—and as of June 2011, it has been reported, there were more than 322 million wireless devic- es in use in the United States.8 For older phones, the accuracy of the location information depends on the den- sity of the tower network, but new “smart phones,” which
—————— 7 See Kerr, The Fourth Amendment and New Technologies: Constitu-
tional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 850–851 (2004) (hereinafter Kerr).
8 See CTIA Consumer Info, 50 Wireless Quick Facts, http://www. ctia.org/consumer_info/index.cfm/AID/10323.
12 UNITED STATES v. JONES
ALITO, J., concurring in judgment
are equipped with a GPS device, permit more precise tracking. For example, when a user activates the GPS on such a phone, a provider is able to monitor the phone’s location and speed of movement and can then report back real-time traffic conditions after combining (“crowdsourc- ing”) the speed of all such phones on any particular road.9
Similarly, phone-location-tracking services are offered as “social” tools, allowing consumers to find (or to avoid) others who enroll in these services. The availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.
V In the pre-computer age, the greatest protections of
privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely under- taken. The surveillance at issue in this case—constant monitoring of the location of a vehicle for four weeks— would have required a large team of agents, multiple vehicles, and perhaps aerial assistance.10 Only an investi- gation of unusual importance could have justified such an
—————— 9 See, e.g., The bright side of sitting in traffic: Crowdsourcing road
congestion data, Google Blog, http://googleblog.blogspot.com/2009/08/ bright-side-of-sitting-in-traffic.html.
10 Even with a radio transmitter like those used in United States v. Knotts, 460 U. S. 276 (1983), or United States v. Karo, 468 U. S. 705 (1984), such long-term surveillance would have been exceptionally demanding. The beepers used in those cases merely “emit[ted] periodic signals that [could] be picked up by a radio receiver.” Knotts, 460 U.S., at 277. The signal had a limited range and could be lost if the police did not stay close enough. Indeed, in Knotts itself, officers lost the signal from the beeper, and only “with the assistance of a monitoring device located in a helicopter [was] the approximate location of the signal . . . picked up again about one hour later.” Id., at 278.
13 Cite as: 565 U. S. ____ (2012)
ALITO, J., concurring in judgment
expenditure of law enforcement resources. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap. In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. See, e.g., Kerr, 102 Mich. L. Rev., at 805–806. A legislative body is well situ- ated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a com- prehensive way.
To date, however, Congress and most States have not enacted statutes regulating the use of GPS tracking tech- nology for law enforcement purposes. The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a rea- sonable person would not have anticipated.
Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. See Knotts, 460 U. S., at 281–282. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and cata- logue every single movement of an individual’s car for a very long period. In this case, for four weeks, law en- forcement agents tracked every movement that respond- ent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveil
14 UNITED STATES v. JONES
ALITO, J., concurring in judgment
lance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant.11 We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously avail- able techniques.
* * * For these reasons, I conclude that the lengthy monitor-
ing that occurred in this case constituted a search under the Fourth Amendment. I therefore agree with the major- ity that the decision of the Court of Appeals must be affirmed.
—————— 11 In this case, the agents obtained a warrant, but they did not comply
with two of the warrant’s restrictions: They did not install the GPS device within the 10-day period required by the terms of the warrant and by Fed. Rule Crim. Proc. 41(e)(2)(B)(i), and they did not install the GPS device within the District of Columbia, as required by the terms of the warrant and by 18 U. S. C. §3117(a) and Rule 41(b)(4). In the courts below the Government did not argue, and has not argued here, that the Fourth Amendment does not impose these precise restrictions and that the violation of these restrictions does not demand the sup- pression of evidence obtained using the tracking device. See, e.g., United States v. Gerber, 994 F. 2d 1556, 1559–1560 (CA11 1993); United States v. Burke, 517 F. 2d 377, 386–387 (CA2 1975). Because it was not raised, that question is not before us.
__MACOSX/Freedom, Privacy and Tech./._Jones%20v%20US%20GPS%20Supreme%20Ct.pdf
Freedom, Privacy and Tech./Katz%20v%20US%20prompts.docx
Katz v. U.S.
Majority Decision-Stewart
1. Does Stewart recognize a general constitutional right to privacy through the 4th Amendment? Explain.
2. Stewart says the 4th protects people, not places. Explain his reasoning and its consequences for search and seizure cases.
3. What would have made the surveillance legal?
4. Stewart cites Wong Sun v. U.S.
Elaborate on the role of the judiciary in “antecedent justification.”
Concurring Opinions
5. Explain the controversy between Douglas and White.
6. Harlan elaborates on the concept of reasonable expectation of privacy. Describe.
7. Harlan describes Goldman as “bad physics as well as bad law”. Explain
Dissent- Black
1. Describe Black’s primary objection to overturning Katz.
2. Eavesdropping v. search and seizure. Explain.
3. What does Black mean when he refers to the court as “ a continuously functioning constitutional convention”?
__MACOSX/Freedom, Privacy and Tech./._Katz%20v%20US%20prompts.docx
Freedom, Privacy and Tech./Katz%20v.%20U.S..docx
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=389&invol=347
U.S. Supreme Court
KATZ v. UNITED STATES, 389 U.S. 347 (1967)
389 U.S. 347
KATZ v. UNITED STATES. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 35. Argued October 17, 1967. Decided December 18, 1967.
Petitioner was convicted under an indictment charging him with transmitting wagering information by telephone across state lines in violation of 18 U.S.C. 1084. Evidence of petitioner's end of the conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the telephone booth from which the calls were made, was introduced at the trial. The Court of Appeals affirmed the conviction, finding that there was no Fourth Amendment violation since there was "no physical entrance into the area occupied by" petitioner. Held:
1. The Government's eavesdropping activities violated the privacy upon which petitioner justifiably relied while using the telephone booth and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. Pp. 350-353.
(a) The Fourth Amendment governs not only the seizure of tangible items but extends as well to the recording of oral statements. Silverman v. United States, 365 U.S. 505, 511 . P. 353.
(b) 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. Pp. 351, 353.
2. Although the surveillance in this case may have been so narrowly circumscribed that it could constitutionally have been authorized in advance, it was not in fact conducted pursuant to the warrant procedure which is a constitutional precondition of such electronic surveillance. Pp. 354-359.
369 F.2d 130, reversed.
John S. Martin, Jr., argued the cause for the United States. With him on the brief were Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Beatrice Rosenberg.
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner was convicted in the District Court for the Southern District of California under an eight-count indictment charging him with transmitting wagering information by telephone from Los Angeles to Miami and Boston, in violation of a federal statute. 1 At trial the Government was permitted, over the petitioner's objection, to introduce evidence of the petitioner's end of telephone conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the public telephone booth from which he had placed his calls. In affirming his conviction, the Court of Appeals rejected the contention that the recordings had been obtained in violation of the Fourth Amendment, [389 U.S. 347, 349] because "[t]here was no physical entrance into the area occupied by [the petitioner]." 2 We granted certiorari in order to consider the constitutional questions thus presented. 3
The petitioner has phrased those questions as follows:
"A. Whether a public telephone booth is a constitutionally protected area so that evidence obtained by attaching an electronic listening recording device to the top of such a booth is obtained in violation of the right to privacy of the user of the booth. [389 U.S. 347, 350]
"B. Whether physical penetration of a constitutionally protected area is necessary before a search and seizure can be said to be violative of the Fourth Amendment to the United States Constitution."
We decline to adopt this formulation of the issues. In the first place, the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase "constitutionally protected area." Secondly, the Fourth Amendment cannot be translated into a general constitutional "right to privacy." That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. 4 Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. 5 But the protection of a person's general right to privacy - his right to be let alone by other people 6 - is, like the [389 U.S. 347, 351] protection of his property and of his very life, left largely to the law of the individual States. 7
Because of the misleading way the issues have been formulated, the parties have attached great significance to the characterization of the telephone booth from which the petitioner placed his calls. The petitioner has strenuously argued that the booth was a "constitutionally protected area." The Government has maintained with equal vigor that it was not. 8 But this effort to decide whether or not a given "area," viewed in the abstract, is "constitutionally protected" deflects attention from the problem presented by this case. 9 For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210 ; United States v. Lee, 274 U.S. 559, 563 . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. [389 U.S. 347, 352] See Rios v. United States, 364 U.S. 253 ; Ex parte Jackson, 96 U.S. 727, 733 .
The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye - it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, 10 in a friend's apartment, 11 or in a taxicab, 12 a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.
The Government contends, however, that the activities of its agents in this case should not be tested by Fourth Amendment requirements, for the surveillance technique they employed involved no physical penetration of the telephone booth from which the petitioner placed his calls. It is true that the absence of such penetration was at one time thought to foreclose further Fourth Amendment inquiry, Olmstead v. United States, 277 U.S. 438, 457 , 464, 466; Goldman v. United States, 316 U.S. 129, 134 -136, for that Amendment was thought to limit only searches and seizures of tangible [389 U.S. 347, 353] property. 13 But "[t]he premise that property interests control the right of the Government to search and seize has been discredited." Warden v. Hayden, 387 U.S. 294, 304 . Thus, although a closely divided Court supposed in Olmstead that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narrow view on which that decision rested. Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, over-heard without any "technical trespass under . . . local property law." Silverman v. United States, 365 U.S. 505, 511 . Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people - and not simply "areas" - against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.
The question remaining for decision, then, is whether the search and seizure conducted in this case complied with constitutional standards. In that regard, the Government's position is that its agents acted in an entirely defensible manner: They did not begin their electronic surveillance until investigation of the petitioner's activities had established a strong probability that he was using the telephone in question to transmit gambling information to persons in other States, in violation of federal law. Moreover, the surveillance was limited, both in scope and in duration, to the specific purpose of establishing the contents of the petitioner's unlawful telephonic communications. The agents confined their surveillance to the brief periods during which he used the telephone booth, 14 and they took great care to overhear only the conversations of the petitioner himself. 15
Accepting this account of the Government's actions as accurate, it is clear that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the Government asserts in fact took place. Only last Term we sustained the validity of [389 U.S. 347, 355] such an authorization, holding that, under sufficiently "precise and discriminate circumstances," a federal court may empower government agents to employ a concealed electronic device "for the narrow and particularized purpose of ascertaining the truth of the . . . allegations" of a "detailed factual affidavit alleging the commission of a specific criminal offense." Osborn v. United States, 385 U.S. 323, 329 -330. Discussing that holding, the Court in Berger v. New York, 388 U.S. 41 , said that "the order authorizing the use of the electronic device" in Osborn "afforded similar protections to those . . . of conventional warrants authorizing the seizure of tangible evidence." Through those protections, "no greater invasion of privacy was permitted than was necessary under the circumstances." Id., at 57. 16 Here, too, a similar [389 U.S. 347, 356] judicial order could have accommodated "the legitimate needs of law enforcement" 17 by authorizing the carefully limited use of electronic surveillance.
The Government urges that, because its agents relied upon the decisions in Olmstead and Goldman, and because they did no more here than they might properly have done with prior judicial sanction, we should retroactively validate their conduct. That we cannot do. It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive [389 U.S. 347, 357] means consistent with that end. Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," Agnello v. United States, 269 U.S. 20, 33 , for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police . . . ." Wong Sun v. United States, 371 U.S. 471, 481 -482. "Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes," United States v. Jeffers, 342 U.S. 48, 51 , and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment 18 - subject only to a few specifically established and well-delineated exceptions. 19
It is difficult to imagine how any of those exceptions could ever apply to the sort of search and seizure involved in this case. Even electronic surveillance substantially contemporaneous with an individual's arrest could hardly be deemed an "incident" of that arrest. 20 [389 U.S. 347, 358] Nor could the use of electronic surveillance without prior authorization be justified on grounds of "hot pursuit." 21 And, of course, the very nature of electronic surveillance precludes its use pursuant to the suspect's consent. 22
The Government does not question these basic principles. Rather, it urges the creation of a new exception to cover this case. 23 It argues that surveillance of a telephone booth should be exempted from the usual requirement of advance authorization by a magistrate upon a showing of probable cause. We cannot agree. Omission of such authorization
"bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the . . . search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment." Beck v. Ohio, 379 U.S. 89, 96 .
These considerations do not vanish when the search in question is transferred from the setting of a home, an office, or a hotel room to that of a telephone booth. Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures. The government agents here ignored "the procedure of antecedent justification . . . that is central to the Fourth Amendment," 24 a procedure that we hold to be a constitutional precondition of the kind of electronic surveillance involved in this case. Because the surveillance here failed to meet that condition, and because it led to the petitioner's conviction, the judgment must be reversed.
It is so ordered.
MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.
Footnotes 2-24 for this opinion are at the very end of the document
[ Footnote 1 ] 18 U.S.C. 1084. That statute provides in pertinent part:
"(a) Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest, or for the transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information assisting in the placing of bets or wagers, shall be fined not more than $10,000 or imprisoned not more than two years, or both.
"(b) Nothing in this section shall be construed to prevent the transmission in interstate or foreign commerce of information for use in news reporting of sporting events or contests, or for the transmission of information assisting in the placing of bets or wagers on a sporting event or contest from a State where betting on that sporting event or contest is legal into a State in which such betting is legal."
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN joins, concurring.
While I join the opinion of the Court, I feel compelled to reply to the separate concurring opinion of my Brother WHITE, which I view as a wholly unwarranted green light for the Executive Branch to resort to electronic eaves-dropping without a warrant in cases which the Executive Branch itself labels "national security" matters.
Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved they are not detached, disinterested, and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate [389 U.S. 347, 360] and prevent breaches of national security and prosecute those who violate the pertinent federal laws. The President and Attorney General are properly interested parties, cast in the role of adversary, in national security cases. They may even be the intended victims of subversive action. Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner, I cannot agree that where spies and saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and Attorney General assume both the position of adversary-and-prosecutor and disinterested, neutral magistrate.
There is, so far as I understand constitutional history, no distinction under the Fourth Amendment between types of crimes. Article III, 3, gives "treason" a very narrow definition and puts restrictions on its proof. But the Fourth Amendment draws no lines between various substantive offenses. The arrests in cases of "hot pursuit" and the arrests on visible or other evidence of probable cause cut across the board and are not peculiar to any kind of crime.
I would respect the present lines of distinction and not improvise because a particular crime seems particularly heinous. When the Framers took that step, as they did with treason, the worst crime of all, they made their purpose manifest.
MR. JUSTICE HARLAN, concurring.
I join the opinion of the Court, which I read to hold only (a) that an enclosed telephone booth is an area where, like a home, Weeks v. United States, 232 U.S. 383 , and unlike a field, Hester v. United States, 265 U.S. 57 , a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment; [389 U.S. 347, 361] and (c) that the invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant.
As the Court's opinion states, "the Fourth Amendment protects people, not places." The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a "place." My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable." Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the "plain view" of outsiders are not "protected" because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable. Cf. Hester v. United States, supra.
The critical fact in this case is that "[o]ne who occupies it, [a telephone booth] shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume" that his conversation is not being intercepted. Ante, at 352. The point is not that the booth is "accessible to the public" at other times, ante, at 351, but that it is a temporarily private place whose momentary occupants' expectations of freedom from intrusion are recognized as reasonable. Cf. Rios v. United States, 364 U.S. 253 .
In Silverman v. United States, 365 U.S. 505 , we held that eavesdropping accomplished by means of an electronic device that penetrated the premises occupied by petitioner was a violation of the Fourth Amendment. [389 U.S. 347, 362] That case established that interception of conversations reasonably intended to be private could constitute a "search and seizure," and that the examination or taking of physical property was not required. This view of the Fourth Amendment was followed in Wong Sun v. United States, 371 U.S. 471 , at 485, and Berger v. New York, 388 U.S. 41 , at 51. Also compare Osborn v. United States, 385 U.S. 323 , at 327. In Silverman we found it unnecessary to re-examine Goldman v. United States, 316 U.S. 129 , which had held that electronic surveillance accomplished without the physical penetration of petitioner's premises by a tangible object did not violate the Fourth Amendment. This case requires us to reconsider Goldman, and I agree that it should now be overruled. * Its limitation on Fourth Amendment protection is, in the present day, bad physics as well as bad law, for reasonable expectations of privacy may be defeated by electronic as well as physical invasion.
Finally, I do not read the Court's opinion to declare that no interception of a conversation one-half of which occurs in a public telephone booth can be reasonable in the absence of a warrant. As elsewhere under the Fourth Amendment, warrants are the general rule, to which the legitimate needs of law enforcement may demand specific exceptions. It will be time enough to consider any such exceptions when an appropriate occasion presents itself, and I agree with the Court that this is not one.
[ Footnote * ] I also think that the course of development evinced by Silverman, supra, Wong Sun, supra, Berger, supra, and today's decision must be recognized as overruling Olmstead v. United States, 277 U.S. 438 , which essentially rested on the ground that conversations were not subject to the protection of the Fourth Amendment.
MR. JUSTICE WHITE, concurring.
I agree that the official surveillance of petitioner's telephone conversations in a public booth must be subjected [389 U.S. 347, 363] to the test of reasonableness under the Fourth Amendment and that on the record now before us the particular surveillance undertaken was unreasonable absent a warrant properly authorizing it. This application of the Fourth Amendment need not interfere with legitimate needs of law enforcement. *
In joining the Court's opinion, I note the Court's acknowledgment that there are circumstances in which it is reasonable to search without a warrant. In this connection, in footnote 23 the Court points out that today's decision does not reach national security cases. Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. See Berger v. New York, 388 U.S. 41, 112 -118 (1967) (WHITE, J., [389 U.S. 347, 364] dissenting). We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.
[ Footnote * ] In previous cases, which are undisturbed by today's decision, the Court has upheld, as reasonable under the Fourth Amendment, admission at trial of evidence obtained (1) by an undercover police agent to whom a defendant speaks without knowledge that he is in the employ of the police, Hoffa v. United States, 385 U.S. 293 (1966); (2) by a recording device hidden on the person of such an informant, Lopez v. United States, 373 U.S. 427 (1963); Osborn v. United States, 385 U.S. 323 (1966); and (3) by a policeman listening to the secret micro-wave transmissions of an agent conversing with the defendant in another location, On Lee v. United States, 343 U.S. 747 (1952). When one man speaks to another he takes all the risks ordinarily inherent in so doing, including the risk that the man to whom he speaks will make public what he has heard. The Fourth Amendment does not protect against unreliable (or law-abiding) associates. Hoffa v. United States, supra. It is but a logical and reasonable extension of this principle that a man take the risk that his hearer, free to memorize what he hears for later verbatim repetitions, is instead recording it or transmitting it to another. The present case deals with an entirely different situation, for as the Court emphasizes the petitioner "sought to exclude . . . the uninvited ear," and spoke under circumstances in which a reasonable person would assume that uninvited ears were not listening.
MR. JUSTICE BLACK, dissenting.
If I could agree with the Court that eavesdropping carried on by electronic means (equivalent to wiretapping) constitutes a "search" or "seizure," I would be happy to join the Court's opinion. For on that premise my Brother STEWART sets out methods in accord with the Fourth Amendment to guide States in the enactment and enforcement of laws passed to regulate wiretapping by government. In this respect today's opinion differs sharply from Berger v. New York, 388 U.S. 41 , decided last Term, which held void on its face a New York statute authorizing wiretapping on warrants issued by magistrates on showings of probable cause. The Berger case also set up what appeared to be insuperable obstacles to the valid passage of such wiretapping laws by States. The Court's opinion in this case, however, removes the doubts about state power in this field and abates to a large extent the confusion and near-paralyzing effect of the Berger holding. Notwithstanding these good efforts of the Court, I am still unable to agree with its interpretation of the Fourth Amendment.
While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses on such nebulous subjects as privacy, for me the language of the Amendment is the crucial place to look in construing a written document such as our Constitution. The Fourth Amendment says that
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The first clause protects "persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." These words connote the idea of tangible things with size, form, and weight, things capable of being searched, seized, or both. The second clause of the Amendment still further establishes its Framers' purpose to limit its protection to tangible things by providing that no warrants shall issue but those "particularly describing the place to be searched, and the persons or things to be seized." A conversation overheard by eavesdropping, whether by plain snooping or wiretapping, is not tangible and, under the normally accepted meanings of the words, can neither be searched nor seized. In addition the language of the second clause indicates that the Amendment refers not only to something tangible so it can be seized but to something already in existence so it can be described. Yet the Court's interpretation would have the Amendment apply to overhearing future conversations which by their very nature are nonexistent until they take place. How can one "describe" a future conversation, and, if one cannot, how can a magistrate issue a warrant to eavesdrop one in the future? It is argued that information showing what [389 U.S. 347, 366] is expected to be said is sufficient to limit the boundaries of what later can be admitted into evidence; but does such general information really meet the specific language of the Amendment which says "particularly describing"? Rather than using language in a completely artificial way, I must conclude that the Fourth Amendment simply does not apply to eavesdropping.
Tapping telephone wires, of course, was an unknown possibility at the time the Fourth Amendment was adopted. But eavesdropping (and wiretapping is nothing more than eavesdropping by telephone) was, as even the majority opinion in Berger, supra, recognized, "an ancient practice which at common law was condemned as a nuisance. 4 Blackstone, Commentaries 168. In those days the eavesdropper listened by naked ear under the eaves of houses or their windows, or beyond their walls seeking out private discourse." 388 U.S., at 45 . There can be no doubt that the Framers were aware of this practice, and if they had desired to outlaw or restrict the use of evidence obtained by eavesdropping, I believe that they would have used the appropriate language to do so in the Fourth Amendment. They certainly would not have left such a task to the ingenuity of language-stretching judges. No one, it seems to me, can read the debates on the Bill of Rights without reaching the conclusion that its Framers and critics well knew the meaning of the words they used, what they would be understood to mean by others, their scope and their limitations. Under these circumstances it strikes me as a charge against their scholarship, their common sense and their candor to give to the Fourth Amendment's language the eavesdropping meaning the Court imputes to it today.
I do not deny that common sense requires and that this Court often has said that the Bill of Rights' safeguards should be given a liberal construction. This [389 U.S. 347, 367] principle, however, does not justify construing the search and seizure amendment as applying to eavesdropping or the "seizure" of conversations. The Fourth Amendment was aimed directly at the abhorred practice of breaking in, ransacking and searching homes and other buildings and seizing people's personal belongings without warrants issued by magistrates. The Amendment deserves, and this Court has given it, a liberal construction in order to protect against warrantless searches of buildings and seizures of tangible personal effects. But until today this Court has refused to say that eavesdropping comes within the ambit of Fourth Amendment restrictions. See, e. g., Olmstead v. United States, 277 U.S. 438 (1928), and Goldman v. United States, 316 U.S. 129 (1942).
So far I have attempted to state why I think the words of the Fourth Amendment prevent its application to eavesdropping. It is important now to show that this has been the traditional view of the Amendment's scope since its adoption and that the Court's decision in this case, along with its amorphous holding in Berger last Term, marks the first real departure from that view.
The first case to reach this Court which actually involved a clear-cut test of the Fourth Amendment's applicability to eavesdropping through a wiretap was, of course, Olmstead, supra. In holding that the interception of private telephone conversations by means of wiretapping was not a violation of the Fourth Amendment, this Court, speaking through Mr. Chief Justice Taft, examined the language of the Amendment and found, just as I do now, that the words could not be stretched to encompass overheard conversations:
. . . . .
"Justice Bradley in the Boyd case [Boyd v. United States, 116 U.S. 616 ], and Justice Clark[e] in the Gouled case [Gouled v. United States, 255 U.S. 298 ], said that the Fifth Amendment and the Fourth Amendment were to be liberally construed to effect the purpose of the framers of the Constitution in the interest of liberty. But that can not justify enlargement of the language employed beyond the possible practical meaning of houses, persons, papers, and effects, or so to apply the words search and seizure as to forbid hearing or sight." 277 U.S., at 464 -465.
Goldman v. United States, 316 U.S. 129 , is an even clearer example of this Court's traditional refusal to consider eavesdropping as being covered by the Fourth Amendment. There federal agents used a detectaphone, which was placed on the wall of an adjoining room, to listen to the conversation of a defendant carried on in his private office and intended to be confined within the four walls of the room. This Court, referring to Olmstead, found no Fourth Amendment violation.
It should be noted that the Court in Olmstead based its decision squarely on the fact that wiretapping or eavesdropping does not violate the Fourth Amendment. As shown, supra, in the cited quotation from the case, the Court went to great pains to examine the actual language of the Amendment and found that the words used simply could not be stretched to cover eavesdropping. That there was no trespass was not the determinative factor, and indeed the Court in citing Hester v. United States, 265 U.S. 57 , indicated that even where there was a trespass the Fourth Amendment does not automatically apply to evidence obtained by "hearing or [389 U.S. 347, 369] sight." The Olmstead majority characterized Hester as holding "that the testimony of two officers of the law who trespassed on the defendant's land, concealed themselves one hundred yards away from his house and saw him come out and hand a bottle of whiskey to another, was not inadmissible. While there was a trespass, there was no search of person, house, papers or effects." 277 U.S., at 465 . Thus the clear holding of the Olmstead and Goldman cases, undiluted by any question of trespass, is that eavesdropping, in both its original and modern forms, is not violative of the Fourth Amendment.
While my reading of the Olmstead and Goldman cases convinces me that they were decided on the basis of the inapplicability of the wording of the Fourth Amendment to eavesdropping, and not on any trespass basis, this is not to say that unauthorized intrusion has not played an important role in search and seizure cases. This Court has adopted an exclusionary rule to bar evidence obtained by means of such intrusions. As I made clear in my dissenting opinion in Berger v. New York, 388 U.S. 41, 76 , I continue to believe that this exclusionary rule formulated in Weeks v. United States, 232 U.S. 383 , rests on the "supervisory power" of this Court over other federal courts and is not rooted in the Fourth Amendment. See Wolf v. Colorado, concurring opinion, 338 U.S. 25, 39 , at 40. See also Mapp v. Ohio, concurring opinion, 367 U.S. 643, 661 -666. This rule has caused the Court to refuse to accept evidence where there has been such an intrusion regardless of whether there has been a search or seizure in violation of the Fourth Amendment. As this Court said in Lopez v. United States, 373 U.S. 427, 438 -439, "The Court has in the past sustained instances of `electronic eavesdropping' against constitutional challenge, when devices have been used to enable government agents to overhear conversations which would have been beyond the reach of the human ear [citing [389 U.S. 347, 370] Olmstead and Goldman]. It has been insisted only that the electronic device not be planted by an unlawful physical invasion of a constitutionally protected area. Silverman v. United States."
To support its new interpretation of the Fourth Amendment, which in effect amounts to a rewriting of the language, the Court's opinion concludes that "the underpinnings of Olmstead and Goldman have been . . . eroded by our subsequent decisions . . . ." But the only cases cited as accomplishing this "eroding" are Silverman v. United States, 365 U.S. 505 , and Warden v. Hayden, 387 U.S. 294 . Neither of these cases "eroded" Olmstead or Goldman. Silverman is an interesting choice since there the Court expressly refused to re-examine the rationale of Olmstead or Goldman although such a re-examination was strenuously urged upon the Court by the petitioners' counsel. Also it is significant that in Silverman, as the Court described it, "the eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied by the petitioners," 365 U.S., at 509 , thus calling into play the supervisory exclusionary rule of evidence. As I have pointed out above, where there is an unauthorized intrusion, this Court has rejected admission of evidence obtained regardless of whether there has been an unconstitutional search and seizure. The majority's decision here relies heavily on the statement in the opinion that the Court "need not pause to consider whether or not there was a technical trespass under the local property law relating to party walls." (At 511.) Yet this statement should not becloud the fact that time and again the opinion emphasizes that there has been an unauthorized intrusion: "For a fair reading of the record in this case shows that the eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied by the petitioners." (At 509, emphasis added.) "Eavesdropping [389 U.S. 347, 371] accomplished by means of such a physical intrusion is beyond the pale of even those decisions . . . ." (At 509, emphasis added.) "Here . . . the officers overheard the petitioners' conversations only by usurping part of the petitioners' house or office . . . ." (At 511, emphasis added.) "[D]ecision here . . . is based upon the reality of an actual intrusion . . . ." (At 512, emphasis added.) "We find no occasion to re-examine Goldman here, but we decline to go beyond it, by even a fraction of an inch." (At 512, emphasis added.) As if this were not enough, Justices Clark and Whittaker concurred with the following statement: "In view of the determination by the majority that the unauthorized physical penetration into petitioners' premises constituted sufficient trespass to remove this case from the coverage of earlier decisions, we feel obliged to join in the Court's opinion." (At 513, emphasis added.) As I made clear in my dissent in Berger, the Court in Silverman held the evidence should be excluded by virtue of the exclusionary rule and "I would not have agreed with the Court's opinion in Silverman . . . had I thought that the result depended on finding a violation of the Fourth Amendment . . . ." 388 U.S., at 79 -80. In light of this and the fact that the Court expressly refused to re-examine Olmstead and Goldman, I cannot read Silverman as overturning the interpretation stated very plainly in Olmstead and followed in Goldman that eavesdropping is not covered by the Fourth Amendment.
The other "eroding" case cited in the Court's opinion is Warden v. Hayden, 387 U.S. 294 . It appears that this case is cited for the proposition that the Fourth Amendment applies to "intangibles," such as conversation, and the following ambiguous statement is quoted from the opinion: "The premise that property interests control the right of the Government to search and seize has been discredited." 387 U.S., at 304 . But far from being concerned [389 U.S. 347, 372] with eavesdropping, Warden v. Hayden upholds the seizure of clothes, certainly tangibles by any definition. The discussion of property interests was involved only with the common-law rule that the right to seize property depended upon proof of a superior property interest.
Thus, I think that although the Court attempts to convey the impression that for some reason today Olmstead and Goldman are no longer good law, it must face up to the fact that these cases have never been overruled or even "eroded." It is the Court's opinions in this case and Berger which for the first time since 1791, when the Fourth Amendment was adopted, have declared that eavesdropping is subject to Fourth Amendment restrictions and that conversations can be "seized." * I must align myself with all those judges who up to this year have never been able to impute such a meaning to the words of the Amendment. [389 U.S. 347, 373]
Since I see no way in which the words of the Fourth Amendment can be construed to apply to eavesdropping, that closes the matter for me. In interpreting the Bill of Rights, I willingly go as far as a liberal construction of the language takes me, but I simply cannot in good conscience give a meaning to words which they have never before been thought to have and which they certainly do not have in common ordinary usage. I will not distort the words of the Amendment in order to "keep the Constitution up to date" or "to bring it into harmony with the times." It was never meant that this Court have such power, which in effect would make us a continuously functioning constitutional convention.
With this decision the Court has completed, I hope, its rewriting of the Fourth Amendment, which started only recently when the Court began referring incessantly to the Fourth Amendment not so much as a law against unreasonable searches and seizures as one to protect an individual's privacy. By clever word juggling the Court finds it plausible to argue that language aimed specifically at searches and seizures of things that can be searched and seized may, to protect privacy, be applied to eavesdropped evidence of conversations that can neither be searched nor seized. Few things happen to an individual that do not affect his privacy in one way or another. Thus, by arbitrarily substituting the Court's language, designed to protect privacy, for the Constitution's language, designed to protect against unreasonable searches and seizures, the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court's broadest concept of privacy. As I said in Griswold v. Connecticut, 381 U.S. 479 , "The Court talks about a constitutional `right of privacy' as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the `privacy' [389 U.S. 347, 374] of individuals. But there is not." (Dissenting opinion, at 508.) I made clear in that dissent my fear of the dangers involved when this Court uses the "broad, abstract and ambiguous concept" of "privacy" as a "comprehensive substitute for the Fourth Amendment's guarantee against `unreasonable searches and seizures.'" (See generally dissenting opinion, at 507-527.)
The Fourth Amendment protects privacy only to the extent that it prohibits unreasonable searches and seizures of "persons, houses, papers, and effects." No general right is created by the Amendment so as to give this Court the unlimited power to hold unconstitutional everything which affects privacy. Certainly the Framers, well acquainted as they were with the excesses of governmental power, did not intend to grant this Court such omnipotent lawmaking authority as that. The history of governments proves that it is dangerous to freedom to repose such powers in courts.
For these reasons I respectfully dissent.
[ Footnote * ] The first paragraph of my Brother HARLAN'S concurring opinion is susceptible of the interpretation, although probably not intended, that this Court "has long held" eavesdropping to be a violation of the Fourth Amendment and therefore "presumptively unreasonable in the absence of a search warrant." There is no reference to any long line of cases, but simply a citation to Silverman, and several cases following it, to establish this historical proposition. In the first place, as I have indicated in this opinion, I do not read Silverman as holding any such thing; and in the second place, Silverman was decided in 1961. Thus, whatever it held, it cannot be said it "has [been] long held." I think my Brother HARLAN recognizes this later in his opinion when he admits that the Court must now overrule Olmstead and Goldman. In having to overrule these cases in order to establish the holding the Court adopts today, it becomes clear that the Court is promulgating new doctrine instead of merely following what it "has long held." This is emphasized by my Brother HARLAN'S claim that it is "bad physics" to adhere to Goldman. Such an assertion simply illustrates the propensity of some members of the Court to rely on their limited understanding of modern scientific subjects in order to fit the Constitution to the times and give its language a meaning that it will not tolerate. [389 U.S. 347, 375]
Footnotes 2-24 from Main Decision
[ Footnote 2 ] 369 F.2d 130, 134.
[ Footnote 3 ] 386 U.S. 954 . The petition for certiorari also challenged the validity of a warrant authorizing the search of the petitioner's premises. In light of our disposition of this case, we do not reach that issue.
We find no merit in the petitioner's further suggestion that his indictment must be dismissed. After his conviction was affirmed by the Court of Appeals, he testified before a federal grand jury concerning the charges involved here. Because he was compelled to testify pursuant to a grant of immunity, 48 Stat. 1096, as amended, 47 U.S.C. 409(l), it is clear that the fruit of his testimony cannot be used against him in any future trial. But the petitioner asks for more. He contends that his conviction must be vacated and the charges against him dismissed lest he be "subjected to [a] penalty . . . on account of [a] . . . matter . . . concerning which he [was] compelled . . . to testify . . . ." 47 U.S.C. 409 (l). Frank v. United States, 347 F.2d 486. We disagree. In relevant part, 409 (l) substantially repeats the language of the Compulsory Testimony Act of 1893, 27 Stat. 443, 49 U.S.C. 46, which was Congress' response to this Court's statement that an immunity statute can supplant the Fifth Amendment privilege against self-incrimination only if it affords adequate protection from future prosecution or conviction. Counselman v. Hitchcock, 142 U.S. 547, 585 -586. The statutory provision here involved was designed to provide such protection, see Brown v. United States, 359 U.S. 41, 45 -46, not to confer immunity from punishment pursuant to a prior prosecution and adjudication of guilt. Cf. Reina v. United States, 364 U.S. 507, 513 -514.
[ Footnote 4 ] "The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. . . . And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home." Griswold v. Connecticut, 381 U.S. 479, 509 (dissenting opinion of MR. JUSTICE BLACK).
[ Footnote 5 ] The First Amendment, for example, imposes limitations upon governmental abridgment of "freedom to associate and privacy in one's associations." NAACP v. Alabama, 357 U.S. 449, 462 . The Third Amendment's prohibition against the unconsented peace-time quartering of soldiers protects another aspect of privacy from governmental intrusion. To some extent, the Fifth Amendment too "reflects the Constitution's concern for . . . `. . . the right of each individual "to a private enclave where he may lead a private life."'" Tehan v. Shott, 382 U.S. 406, 416 . Virtually every governmental action interferes with personal privacy to some degree. The question in each case is whether that interference violates a command of the United States Constitution.
[ Footnote 6 ] See Warren & Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
[ Footnote 7 ] See, e. g., Time, Inc. v. Hill, 385 U.S. 374 . Cf. Breard v. Alexandria, 341 U.S. 622 ; Kovacs v. Cooper, 336 U.S. 77 .
[ Footnote 8 ] In support of their respective claims, the parties have compiled competing lists of "protected areas" for our consideration. It appears to be common ground that a private home is such an area, Weeks v. United States, 232 U.S. 383 , but that an open field is not. Hester v. United States, 265 U.S. 57 . Defending the inclusion of a telephone booth in his list the petitioner cites United States v. Stone, 232 F. Supp. 396, and United States v. Madison, 32 L. W. 2243 (D.C. Ct. Gen. Sess.). Urging that the telephone booth should be excluded, the Government finds support in United States v. Borgese, 235 F. Supp. 286.
[ Footnote 9 ] It is true that this Court has occasionally described its conclusions in terms of "constitutionally protected areas," see, e. g., Silverman v. United States, 365 U.S. 505, 510 , 512; Lopez v. United States, 373 U.S. 427, 438 -439; Berger v. New York, 388 U.S. 41, 57 , 59, but we have never suggested that this concept can serve as a talismanic solution to every Fourth Amendment problem.
[ Footnote 10 ] Silverthorne Lumber Co. v. United States, 251 U.S. 385 .
[ Footnote 11 ] Jones v. United States, 362 U.S. 257 .
[ Footnote 12 ] Rios v. United States, 364 U.S. 253 .
[ Footnote 13 ] See Olmstead v. United States, 277 U.S. 438, 464 -466. We do not deal in this case with the law of detention or arrest under the Fourth Amendment.
[ Footnote 15 ] On the single occasion when the statements of another person were inadvertently intercepted, the agents refrained from listening to them.
[ Footnote 16 ] Although the protections afforded the petitioner in Osborn were "similar . . . to those . . . of conventional warrants," they were not identical. A conventional warrant ordinarily serves to notify the suspect of an intended search. But if Osborn had been told in advance that federal officers intended to record his conversations, the point of making such recordings would obviously have been lost; the evidence in question could not have been obtained. In omitting any requirement of advance notice, the federal court that authorized electronic surveillance in Osborn simply recognized, as has this Court, that officers need not announce their purpose before conducting an otherwise authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence. See Ker v. California, 374 U.S. 23, 37 -41.
Nor do the Federal Rules of Criminal Procedure impose an inflexible requirement of prior notice. Rule 41 (d) does require federal officers to serve upon the person searched a copy of the warrant and a receipt describing the material obtained, but it does not invariably require that this be done before the search takes place. Nordelli v. United States, 24 F.2d 665, 666-667.
Thus the fact that the petitioner in Osborn was unaware that his words were being electronically transcribed did not prevent this Court from sustaining his conviction, and did not prevent the Court in Berger from reaching the conclusion that the use of the recording device sanctioned in Osborn was entirely lawful. 388 U.S. 41, 57 .
[ Footnote 17 ] Lopez v. United States, 373 U.S. 427, 464 (dissenting opinion of MR. JUSTICE BRENNAN).
[ Footnote 18 ] See, e. g., Jones v. United States, 357 U.S. 493, 497 -499; Rios v. United States, 364 U.S. 253, 261 ; Chapman v. United States, 365 U.S. 610, 613 -615; Stoner v. California, 376 U.S. 483, 486 -487.
[ Footnote 19 ] See, e. g., Carroll v. United States, 267 U.S. 132, 153 , 156; McDonald v. United States, 335 U.S. 451, 454 -456; Brinegar v. United States, 338 U.S. 160, 174 -177; Cooper v. California, 386 U.S. 58 ; Warden v. Hayden, 387 U.S. 294, 298 -300.
[ Footnote 20 ] In Agnello v. United States, 269 U.S. 20, 30 , the Court stated:
"The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted."
Whatever one's view of "the long-standing practice of searching for other proofs of guilt within the control of the accused found upon arrest," United States v. Rabinowitz, 339 U.S. 56, 61 ; cf. id., at [389 U.S. 347, 358] 71-79 (dissenting opinion of Mr. Justice Frankfurter), the concept of an "incidental" search cannot readily be extended to include surreptitious surveillance of an individual either immediately before, or immediately after, his arrest.
[ Footnote 21 ] Although "[t]he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others," Warden v. Hayden, 387 U.S. 294, 298 -299, there seems little likelihood that electronic surveillance would be a realistic possibility in a situation so fraught with urgency.
[ Footnote 22 ] A search to which an individual consents meets Fourth Amendment requirements, Zap v. United States, 328 U.S. 624 , but of course "the usefulness of electronic surveillance depends on lack of notice to the suspect." Lopez v. United States, 373 U.S. 427, 463 (dissenting opinion of MR. JUSTICE BRENNAN).
[ Footnote 24 ] See Osborn v. United States, 385 U.S. 323, 330 .
__MACOSX/Freedom, Privacy and Tech./._Katz%20v.%20U.S..docx
Freedom, Privacy and Tech./Kyllo%20v%20US%20Supreme%20Ct.docx
533 U.S. 27 (2001)
KYLLO v. UNITED STATES
United States Supreme Court.
Argued February 20, 2001.
Decided June 11, 2001.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
28*28 29*29 Scalia, J., delivered the opinion of the Court, in which Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which Rehnquist, C. J., and O'Connor and Kennedy, JJ., joined, post, p. 41.
Kenneth Lerner, by appointment of the Court, 531 U. S. 955, argued the cause and filed briefs for petitioner.
Justice Scalia, delivered the opinion of the Court.
This case presents the question whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a "search" within the meaning of the Fourth Amendment.
I
In 1991 Agent William Elliott of the United States Department of the Interior came to suspect that marijuana was being grown in the home belonging to petitioner Danny Kyllo, part of a triplex on Rhododendron Drive in Florence, Oregon. Indoor marijuana growth typically requires highintensity lamps. In order to determine whether an amount of heat was emanating from petitioner's home consistent with the use of such lamps, at 3:20 a.m. on January 16, 1992, Agent Elliott and Dan Haas used an Agema Thermovision 210 thermal imager to scan the triplex. Thermal imagers detect infrared radiation, which virtually all objects emit but which is not visible to the naked eye. The imager converts radiation into images based on relative warmth—black 30*30 is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a video camera showing heat images. The scan of Kyllo's home took only a few minutes and was performed from the passenger seat of Agent Elliott's vehicle across the street from the front of the house and also from the street in back of the house. The scan showed that the roof over the garage and a side wall of petitioner's home were relatively hot compared to the rest of the home and substantially warmer than neighboring homes in the triplex. Agent Elliott concluded that petitioner was using halide lights to grow marijuana in his house, which indeed he was. Based on tips from informants, utility bills, and the thermal imaging, a Federal Magistrate Judge issued a warrant authorizing a search of petitioner's home, and the agents found an indoor growing operation involving more than 100 plants. Petitioner was indicted on one count of manufacturing marijuana, in violation of 21 U. S. C. § 841(a)(1). He unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea.
The Court of Appeals for the Ninth Circuit remanded the case for an evidentiary hearing regarding the intrusiveness of thermal imaging. On remand the District Court found that the Agema 210 "is a non-intrusive device which emits no rays or beams and shows a crude visual image of the heat being radiated from the outside of the house"; it "did not show any people or activity within the walls of the structure"; "[t]he device used cannot penetrate walls or windows to reveal conversations or human activities"; and "[n]o intimate details of the home were observed." Supp. App. to Pet. for Cert. 39-40. Based on these findings, the District Court upheld the validity of the warrant that relied in part upon the thermal imaging, and reaffirmed its denial of the motion to suppress. A divided Court of Appeals initially reversed, 140 F. 3d 1249 (1998), but that 31*31 opinion was withdrawn and the panel (after a change in composition) affirmed, 190 F. 3d 1041 (1999), with Judge Noonan dissenting. The court held that petitioner had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home, id., at 1046, and even if he had, there was no objectively reasonable expectation of privacy because the imager "did not expose any intimate details of Kyllo's life," only "amorphous `hot spots' on the roof and exterior wall," id., at 1047. We granted certiorari. 530 U. S. 1305 (2000).
II
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." "At the very core" of the Fourth Amendment "stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U. S. 505, 511 (1961) . With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no. See Illinois v. Rodriguez, 497 U. S. 177, 181 (1990) ; Payton v. New York, 445 U. S. 573, 586 (1980) .
On the other hand, the antecedent question whether or not a Fourth Amendment "search" has occurred is not so simple under our precedent. The permissibility of ordinary visual surveillance of a home used to be clear because, well into the 20th century, our Fourth Amendment jurisprudence was tied to common-law trespass. See, e. g., Goldman v. United States, 316 U. S. 129, 134-136 (1942) ; Olmstead v. United States, 277 U. S. 438, 464-466 (1928) . Cf. Silverman v. United States, supra, at 510-512 (technical trespass not necessary for Fourth Amendment violation; it suffices if there is "actual intrusion into a constitutionally protected area"). Visual surveillance was unquestionably lawful because "`the 32*32 eye cannot by the laws of England be guilty of a trespass.' " Boyd v. United States, 116 U. S. 616, 628 (1886) (quoting Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (K. B. 1765) ). We have since decoupled violation of a person's Fourth Amendment rights from trespassory violation of his property, see Rakas v. Illinois, 439 U. S. 128, 143 (1978), but the lawfulness of warrantless visual surveillance of a home has still been preserved. As we observed in California v. Ciraolo, 476 U. S. 207, 213 (1986), "[t]he Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares."
One might think that the new validating rationale would be that examining the portion of a house that is in plain public view, while it is a "search" [1] despite the absence of trespass, is not an "unreasonable" one under the Fourth Amendment. See Minnesota v. Carter, 525 U. S. 83, 104 (1998) (Breyer, J., concurring in judgment) . But in fact we have held that visual observation is no "search" at all— perhaps in order to preserve somewhat more intact our doctrine that warrantless searches are presumptively unconstitutional. See Dow Chemical Co. v. United States, 476 U. S. 227, 234-235, 239 (1986) . In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz v. United States, 389 U. S. 347 (1967) . Katz involved eavesdropping by means of an electronic listening device placed on the outside of a telephone booth—a location not within the catalog ("persons, houses, papers, and effects") that the Fourth Amendment protects against unreasonable searches. We held that the 33*33 Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he "justifiably relied" upon the privacy of the telephone booth. Id., at 353. As Justice Harlan's oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. See id., at 361. We have subsequently applied this principle to hold that a Fourth Amendment search does not occur—even when the explicitly protected location of a house is concerned—unless "the individual manifested a subjective expectation of privacy in the object of the challenged search," and "society [is] willing to recognize that expectation as reasonable." Ciraolo, supra, at 211 . We have applied this test in holding that it is not a search for the police to use a pen register at the phone company to determine what numbers were dialed in a private home, Smith v. Maryland, 442 U. S. 735, 743-744 (1979), and we have applied the test on two different occasions in holding that aerial surveillance of private homes and surrounding areas does not constitute a search, Ciraolo, supra ; Florida v. Riley, 488 U. S. 445 (1989) .
The present case involves officers on a public street engaged in more than naked-eye surveillance of a home. We have previously reserved judgment as to how much technological enhancement of ordinary perception from such a vantage point, if any, is too much. While we upheld enhanced aerial photography of an industrial complex in Dow Chemical, we noted that we found "it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened," 476 U. S., at 237, n. 4 (emphasis in original).
III
It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been 34*34 entirely unaffected by the advance of technology. For example, as the cases discussed above make clear, the technology enabling human flight has exposed to public view (and hence, we have said, to official observation) uncovered portions of the house and its curtilage that once were private. See Ciraolo, supra, at 215 . The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.
The Katz test—whether the individual has an expectation of privacy that society is prepared to recognize as reasonable—has often been criticized as circular, and hence subjective and unpredictable. See 1 W. LaFave, Search and Seizure § 2.1(d), pp. 393-394 (3d ed. 1996); Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 S. Ct. Rev. 173, 188; Carter, supra, at 97 (Scalia, J., concurring). But see Rakas, supra, at 143-144, n. 12 . While it may be difficult to refine Katz when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences is at issue, in the case of the search of the interior of homes—the prototypical and hence most commonly litigated area of protected privacy— there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by senseenhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area," Silverman, 365 U. S., at 512, constitutes a search— at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. On the basis of this criterion, the 35*35 information obtained by the thermal imager in this case was the product of a search. [2]
The Government maintains, however, that the thermal imaging must be upheld because it detected "only heat radiating from the external surface of the house," Brief for United States 26. The dissent makes this its leading point, see post, at 41, contending that there is a fundamental difference between what it calls "off-the-wall" observations and "through-the-wall surveillance." But just as a thermal imager captures only heat emanating from a house, so also a powerful directional microphone picks up only sound emanating from a house—and a satellite capable of scanning from many miles away would pick up only visible light emanating from a house. We rejected such a mechanical interpretation of the Fourth Amendment in Katz, where the eavesdropping device picked up only sound waves that reached the exterior of the phone booth. Reversing that approach would leave the homeowner at the mercy of advancing technology— including imaging technology that could discern all human 36*36 activity in the home. While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development. [3] The dissent's reliance on the distinction between "off-the-wall" and "through-the-wall" observation is entirely incompatible with the dissent's belief, which we discuss below, that thermal-imaging observations of the intimate details of a home are impermissible. The most sophisticated thermal-imaging devices continue to measure heat "off-the-wall" rather than "through-the-wall"; the dissent's disapproval of those more sophisticated thermalimaging devices, see post, at 49, is an acknowledgment that there is no substance to this distinction. As for the dissent's extraordinary assertion that anything learned through "an inference" cannot be a search, see post, at 44, that would validate even the "through-the-wall" technologies that the dissent purports to disapprove. Surely the dissent does not believe that the through-the-wall radar or ultrasound technology produces an 8-by-10 Kodak glossy that needs no analysis ( i. e., the making of inferences). And, of course, the novel proposition that inference insulates a search is blatantly contrary to United States v. Karo, 468 U. S. 705 (1984), where the police "inferred" from the activation of a beeper that a certain can of ether was in the home. The police activity 37*37 was held to be a search, and the search was held unlawful. [4]
The Government also contends that the thermal imaging was constitutional because it did not "detect private activities occurring in private areas," Brief for United States 22. It points out that in Dow Chemical we observed that the enhanced aerial photography did not reveal any "intimate details." 476 U. S., at 238 . Dow Chemical, however, involved enhanced aerial photography of an industrial complex, which does not share the Fourth Amendment sanctity of the home. The Fourth Amendment's protection of the home has never been tied to measurement of the quality or quantity of information obtained. In Silverman, for example, we made clear that any physical invasion of the structure of the home, "by even a fraction of an inch," was too much, 365 U. S., at 512, and there is certainly no exception to the warrant requirement for the officer who barely cracks open the front door and sees nothing but the nonintimate rug on the vestibule floor. In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes. Thus, in Karo, supra , the only thing detected was a can of ether in the 38*38 home; and in Arizona v. Hicks, 480 U. S. 321 (1987), the only thing detected by a physical search that went beyond what officers lawfully present could observe in "plain view" was the registration number of a phonograph turntable. These were intimate details because they were details of the home, just as was the detail of how warm—or even how relatively warm—Kyllo was heating his residence. [5]
Limiting the prohibition of thermal imaging to "intimate details" would not only be wrong in principle; it would be impractical in application, failing to provide "a workable accommodation between the needs of law enforcement and the interests protected by the Fourth Amendment," Oliver v. United States, 466 U. S. 170, 181 (1984) . To begin with, there is no necessary connection between the sophistication of the surveillance equipment and the "intimacy" of the details that it observes—which means that one cannot say (and the police cannot be assured) that use of the relatively crude equipment at issue here will always be lawful. The Agema Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath—a detail that many would consider "intimate"; and a much more sophisticated system might detect nothing more intimate than the fact that someone left a closet light on. We could not, in other words, develop a rule approving only that through-the-wall surveillance which identifies objects no smaller than 36 by 36 inches, but would have to develop a jurisprudence specifying which 39*39 home activities are "intimate" and which are not. And even when (if ever) that jurisprudence were fully developed, no police officer would be able to know in advance whether his through-the-wall surveillance picks up "intimate" details— and thus would be unable to know in advance whether it is constitutional.
The dissent's proposed standard—whether the technology offers the "functional equivalent of actual presence in the area being searched," post, at 47—would seem quite similar to our own at first blush. The dissent concludes that Katz was such a case, but then inexplicably asserts that if the same listening device only revealed the volume of the conversation, the surveillance would be permissible, post, at 49-50. Yet if, without technology, the police could not discern volume without being actually present in the phone booth, Justice Stevens should conclude a search has occurred. Cf. Karo, 468 U. S., at 735 (Stevens, J., concurring in part and dissenting in part) ("I find little comfort in the Court's notion that no invasion of privacy occurs until a listener obtains some significant information by use of the device. . . . A bathtub is a less private area when the plumber is present even if his back is turned"). The same should hold for the interior heat of the home if only a person present in the home could discern the heat. Thus the driving force of the dissent, despite its recitation of the above standard, appears to be a distinction among different types of information—whether the "homeowner would even care if anybody noticed," post, at 50. The dissent offers no practical guidance for the application of this standard, and for reasons already discussed, we believe there can be none. The people in their houses, as well as the police, deserve more precision. [6]
40*40 We have said that the Fourth Amendment draws "a firm line at the entrance to the house," Payton, 445 U. S., at 590 . That line, we think, must be not only firm but also bright— which requires clear specification of those methods of surveillance that require a warrant. While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no "significant" compromise of the homeowner's privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward.
"The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens." Carroll v. United States, 267 U. S. 132, 149 (1925) .
Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant.
Since we hold the Thermovision imaging to have been an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant issued in this case was supported by probable cause—and if not, whether there is any other basis for supporting admission of the evidence that the search pursuant to the warrant produced.
41*41 * * *
The judgment of the Court of Appeals is reversed; the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Stevens, with whom The Chief Justice, Justice O'Connor, and Justice Kennedy join, dissenting.
I
There is no need for the Court to craft a new rule to decide this case, as it is controlled by established principles from 42*42 our Fourth Amendment jurisprudence. One of those core principles, of course, is that "searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U. S. 573, 586 (1980) (emphasis added). But it is equally well settled that searches and seizures of property in plain view are presumptively reasonable. See id., at 586-587. [2] Whether that property is residential or commercial, the basic principle is the same: "`What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.' " California v. Ciraolo, 476 U. S. 207, 213 (1986) (quoting Katz v. United States, 389 U. S. 347, 351 (1967) ); see Florida v. Riley, 488 U. S. 445, 449-450 (1989) ; California v. Greenwood, 486 U. S. 35, 40-41 (1988) ; Dow Chemical Co. v. United States, 476 U. S. 227, 235-236 (1986) ; Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp., 416 U. S. 861, 865 (1974) . That is the principle implicated here.
While the Court "take[s] the long view" and decides this case based largely on the potential of yet-to-be-developed technology that might allow "through-the-wall surveillance," ante, at 38-40; see ante, at 36, n. 3, this case involves nothing more than off-the-wall surveillance by law enforcement officers to gather information exposed to the general public from the outside of petitioner's home. All that the infrared camera did in this case was passively measure heat emitted 43*43 from the exterior surfaces of petitioner's home; all that those measurements showed were relative differences in emission levels, vaguely indicating that some areas of the roof and outside walls were warmer than others. As still images from the infrared scans show, see Appendix, infra, no details regarding the interior of petitioner's home were revealed. Unlike an x-ray scan, or other possible "throughthe-wall" techniques, the detection of infrared radiation emanating from the home did not accomplish "an unauthorized physical penetration into the premises," Silverman v. United States, 365 U. S. 505, 509 (1961), nor did it "obtain information that it could not have obtained by observation from outside the curtilage of the house," United States v. Karo, 468 U. S. 705, 715 (1984) .
Indeed, the ordinary use of the senses might enable a neighbor or passerby to notice the heat emanating from a building, particularly if it is vented, as was the case here. Additionally, any member of the public might notice that one part of a house is warmer than another part or a nearby building if, for example, rainwater evaporates or snow melts at different rates across its surfaces. Such use of the senses would not convert into an unreasonable search if, instead, an adjoining neighbor allowed an officer onto her property to verify her perceptions with a sensitive thermometer. Nor, in my view, does such observation become an unreasonable search if made from a distance with the aid of a device that merely discloses that the exterior of one house, or one area of the house, is much warmer than another. Nothing more occurred in this case.
Thus, the notion that heat emissions from the outside of a dwelling are a private matter implicating the protections of the Fourth Amendment (the text of which guarantees the right of people "to be secure in their . . . houses" against unreasonable searches and seizures (emphasis added)) is not only unprecedented but also quite difficult to take seriously. Heat waves, like aromas that are generated in a kitchen, or 44*44 in a laboratory or opium den, enter the public domain if and when they leave a building. A subjective expectation that they would remain private is not only implausible but also surely not "one that society is prepared to recognize as `reasonable.' " Katz, 389 U. S., at 361 (Harlan, J., concurring).
To be sure, the homeowner has a reasonable expectation of privacy concerning what takes place within the home, and the Fourth Amendment's protection against physical invasions of the home should apply to their functional equivalent. But the equipment in this case did not penetrate the walls of petitioner's home, and while it did pick up "details of the home" that were exposed to the public, ante, at 38, it did not obtain "any information regarding the interior of the home," ante, at 34 (emphasis added). In the Court's own words, based on what the thermal imager "showed" regarding the outside of petitioner's home, the officers "concluded" that petitioner was engaging in illegal activity inside the home. Ante, at 30. It would be quite absurd to characterize their thought processes as "searches," regardless of whether they inferred (rightly) that petitioner was growing marijuana in his house, or (wrongly) that "the lady of the house [was taking] her daily sauna and bath." Ante, at 38. In either case, the only conclusions the officers reached concerning the interior of the home were at least as indirect as those that might have been inferred from the contents of discarded garbage, see California v. Greenwood, 486 U. S. 35 (1988), or pen register data, see Smith v. Maryland, 442 U. S. 735 (1979), or, as in this case, subpoenaed utility records, see 190 F. 3d 1041, 1043 (CA9 1999). For the first time in its history, the Court assumes that an inference can amount to a Fourth Amendment violation. See ante, at 36-37. [3]
45*45 Notwithstanding the implications of today's decision, there is a strong public interest in avoiding constitutional litigation over the monitoring of emissions from homes, and over the inferences drawn from such monitoring. Just as "the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public," Greenwood, 486 U. S., at 41, so too public officials should not have to avert their senses or their equipment from detecting emissions in the public domain such as excessive heat, traces of smoke, suspicious odors, odorless gases, airborne particulates, or radioactive emissions, any of which could identify hazards to the community. In my judgment, monitoring such emissions with "sense-enhancing technology," ante, at 34, and drawing useful conclusions from such monitoring, is an entirely reasonable public service.
On the other hand, the countervailing privacy interest is at best trivial. After all, homes generally are insulated to keep heat in, rather than to prevent the detection of heat going out, and it does not seem to me that society will suffer from a rule requiring the rare homeowner who both intends to engage in uncommon activities that produce extraordinary amounts of heat, and wishes to conceal that production from outsiders, to make sure that the surrounding area is well insulated. Cf. United States v. Jacobsen, 466 U. S. 109, 122 (1984) ("The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well 46*46 justified, that certain facts will not come to the attention of the authorities"). The interest in concealing the heat escaping from one's house pales in significance to "the chief evil against which the wording of the Fourth Amendment is directed," the "physical entry of the home," United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U. S. 297, 313 (1972), and it is hard to believe that it is an interest the Framers sought to protect in our Constitution.
II
Instead of trying to answer the question whether the use of the thermal imager in this case was even arguably unreasonable, the Court has fashioned a rule that is intended to provide essential guidance for the day when "more sophisticated systems" gain the "ability to `see' through walls and other opaque barriers." Ante, at 36, and n. 3. The newly minted rule encompasses "obtaining [1] by senseenhancing technology [2] any information regarding the interior of the home [3] that could not otherwise have been obtained without physical intrusion into a constitutionally protected area . . . [4] at least where (as here) the technology in question is not in general public use." Ante, at 34 (internal quotation marks omitted). In my judgment, the 47*47 Court's new rule is at once too broad and too narrow, and is not justified by the Court's explanation for its adoption. As I have suggested, I would not erect a constitutional impediment to the use of sense-enhancing technology unless it provides its user with the functional equivalent of actual presence in the area being searched.
Despite the Court's attempt to draw a line that is "not only firm but also bright," ante, at 40, the contours of its new rule are uncertain because its protection apparently dissipates as soon as the relevant technology is "in general public use," ante, at 34. Yet how much use is general public use is not even hinted at by the Court's opinion, which makes the somewhat doubtful assumption that the thermal imager used in this case does not satisfy that criterion. [5] In any event, putting aside its lack of clarity, this criterion is somewhat perverse because it seems likely that the threat to privacy will grow, rather than recede, as the use of intrusive equipment becomes more readily available.
It is clear, however, that the category of "sense-enhancing technology" covered by the new rule, ibid., is far too broad. It would, for example, embrace potential mechanical substitutes for dogs trained to react when they sniff narcotics. But in United States v. Place, 462 U. S. 696, 707 (1983), we held that a dog sniff that "discloses only the presence or absence of narcotics" does "not constitute a `search' within the meaning of the Fourth Amendment," and it must follow that sense-enhancing equipment that identifies nothing but illegal 48*48 activity is not a search either. Nevertheless, the use of such a device would be unconstitutional under the Court's rule, as would the use of other new devices that might detect the odor of deadly bacteria or chemicals for making a new type of high explosive, even if the devices (like the dog sniffs) are "so limited both in the manner in which" they obtain information and "in the content of the information" they reveal. Ibid. If nothing more than that sort of information could be obtained by using the devices in a public place to monitor emissions from a house, then their use would be no more objectionable than the use of the thermal imager in this case.
The application of the Court's new rule to "any information regarding the interior of the home," ante, at 34, is also unnecessarily broad. If it takes sensitive equipment to detect an odor that identifies criminal conduct and nothing else, the fact that the odor emanates from the interior of a home should not provide it with constitutional protection. See supra, at 47 and this page. The criterion, moreover, is too sweeping in that information "regarding" the interior of a home apparently is not just information obtained through its walls, but also information concerning the outside of the building that could lead to (however many) inferences "regarding" what might be inside. Under that expansive view, I suppose, an officer using an infrared camera to observe a man silently entering the side door of a house at night carrying a pizza might conclude that its interior is now occupied by someone who likes pizza, and by doing so the officer would be guilty of conducting an unconstitutional "search" of the home.
Because the new rule applies to information regarding the "interior" of the home, it is too narrow as well as too broad. Clearly, a rule that is designed to protect individuals from the overly intrusive use of sense-enhancing equipment should not be limited to a home. If such equipment 49*49 did provide its user with the functional equivalent of access to a private place—such as, for example, the telephone booth involved in Katz, or an office building—then the rule should apply to such an area as well as to a home. See Katz, 389 U. S., at 351 ("[T]he Fourth Amendment protects people, not places").
The final requirement of the Court's new rule, that the information "could not otherwise have been obtained without physical intrusion into a constitutionally protected area," ante, at 34 (internal quotation marks omitted), also extends too far as the Court applies it. As noted, the Court effectively treats the mental process of analyzing data obtained from external sources as the equivalent of a physical intrusion into the home. See supra, at 44. As I have explained, however, the process of drawing inferences from data in the public domain should not be characterized as a search.
Second, the Court argues that the permissibility of "through-the-wall surveillance" cannot depend on a distinction between observing "intimate details" such as "the lady of the house [taking] her daily sauna and bath," and noticing only "the nonintimate rug on the vestibule floor" or "objects no smaller than 36 by 36 inches." Ante, at 37, 38-39. This entire argument assumes, of course, that the thermal imager in this case could or did perform "through-thewall surveillance" that could identify any detail "that would previously have been unknowable without physical intrusion." Ante, at 39-40. In fact, the device could not, see n. 1, supra, and did not, see Appendix, infra, enable its user to identify either the lady of the house, the rug on the vestibule floor, or anything else inside the house, whether smaller or larger than 36 by 36 inches. Indeed, the vague thermal images of petitioner's home that are reproduced in the Appendix were submitted by him to the District Court as part of an expert report raising the question whether the device could even take "accurate, consistent infrared images" of the 51*51 outside of his house. Defendant's Exh. 107, p. 4. But even if the device could reliably show extraordinary differences in the amounts of heat leaving his home, drawing the inference that there was something suspicious occurring inside the residence—a conclusion that officers far less gifted than Sherlock Holmes would readily draw—does not qualify as "through-the-wall surveillance," much less a Fourth Amendment violation.
III
Although the Court is properly and commendably concerned about the threats to privacy that may flow from advances in the technology available to the law enforcement profession, it has unfortunately failed to heed the tried and true counsel of judicial restraint. Instead of concentrating on the rather mundane issue that is actually presented by the case before it, the Court has endeavored to craft an all-encompassing rule for the future. It would be far wiser to give legislators an unimpeded opportunity to grapple with these emerging issues rather than to shackle them with prematurely devised constitutional constraints.
I respectfully dissent. [Appendix to opinion of Stevens, J., follows this page.]
52*52 APPENDIX TO OPINION OF STEVENS, J.
(Images and text reproduced from defendant's exhibit 107) Top left: Infrared image of a video frame from the videotape submitted as evidence in this case. The thermogram indicates the suspect house as it appeared with the Gain and contrast in its default setting. Only the outline of the house is visible. The camera used was the Thermovision 210. Top Right: Infrared image of a subsequent videoframe taken from the videotape. The gain and contrast settings have been increased in order to make the walls and roof of the structure appear hotter than what it actually is. Bottom Left: Infrared image of the opposite side of the suspects house. The thermogram is also taken from the same videotape. The camera settings are in the default mode and the outline of the house is barely visible. Only the hot electrical transformer and the street light are identifiable. Bottom Right: The same image, but with the gain and contrast increased. This change in camera settings cause any object to appear hotter than what it actually is. The arrow indicates the overloading of an area immediately around a hot object in this case the electrical transformer and the streetlight. This overloading of the image is an inherent design flaw in the camera itself.
[*] Briefs of amici curiae urging reversal were filed for the Liberty Project by Julie M. Carpenter; and for the National Association of Criminal Defense Lawyers et al. by James J. Tomkovicz, Lisa B. Kemler, and Steven R. Shapiro.
[1] When the Fourth Amendment was adopted, as now, to "search" meant "[t]o look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a thief." N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989).
[2] The dissent's repeated assertion that the thermal imaging did not obtain information regarding the interior of the home, post, at 43, 44 (opinion of Stevens, J.), is simply inaccurate. A thermal imager reveals the relative heat of various rooms in the home. The dissent may not find that information particularly private or important, see post, at 43-44, 45, 49-50, but there is no basis for saying it is not information regarding the interior of the home. The dissent's comparison of the thermal imaging to various circumstances in which outside observers might be able to perceive, without technology, the heat of the home—for example, by observing snowmelt on the roof, post, at 43—is quite irrelevant. The fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment. The police might, for example, learn how many people are in a particular house by setting up year-round surveillance; but that does not make breaking and entering to find out the same information lawful. In any event, on the night of January 16, 1992, no outside observer could have discerned the relative heat of Kyllo's home without thermal imaging.
[3] The ability to "see" through walls and other opaque barriers is a clear, and scientifically feasible, goal of law enforcement research and development. The National Law Enforcement and Corrections Technology Center, a program within the United States Department of Justice, features on its Internet Website projects that include a "RadarBased Through-the-Wall Surveillance System," "Handheld Ultrasound Through the Wall Surveillance," and a "Radar Flashlight" that "will enable law enforcement officers to detect individuals through interior building walls." www.nlectc.org/techproj/ (visited May 3, 2001). Some devices may emit low levels of radiation that travel "through-the-wall," but others, such as more sophisticated thermal-imaging devices, are entirely passive, or "off-the-wall" as the dissent puts it.
[4] The dissent asserts, post, at 44-45, n. 3, that we have misunderstood its point, which is not that inference insulates a search, but that inference alone is not a search. If we misunderstood the point, it was only in a good-faith effort to render the point germane to the case at hand. The issue in this case is not the police's allegedly unlawful inferencing, but their allegedly unlawful thermal-imaging measurement of the emanations from a house. We say such measurement is a search; the dissent says it is not, because an inference is not a search. We took that to mean that, since the technologically enhanced emanations had to be the basis of inferences before anything inside the house could be known, the use of the emanations could not be a search. But the dissent certainly knows better than we what it intends. And if it means only that an inference is not a search, we certainly agree. That has no bearing, however, upon whether hi-tech measurement of emanations from a house is a search.
[5] The Government cites our statement in California v. Ciraolo, 476 U. S. 207 (1986), noting apparent agreement with the State of California that aerial surveillance of a house's curtilage could become "`invasive' " if "`modern technology' " revealed "`those intimate associations, objects or activities otherwise imperceptible to police or fellow citizens.' " Id., at 215, n.3 (quoting Brief for State of California 14-15). We think the Court's focus in this secondhand dictum was not upon intimacy but upon otherwise-imperceptibility, which is precisely the principle we vindicate today.
[6] The dissent argues that we have injected potential uncertainty into the constitutional analysis by noting that whether or not the technology is in general public use may be a factor. See post, at 47. That quarrel, however, is not with us but with this Court's precedent. See Ciraolo, supra, at 215 ("In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet"). Given that we can quite confidently say that thermal imaging is not "routine," we decline in this case to reexamine that factor.
[1] After an evidentiary hearing, the District Court found: "[T]he use of the thermal imaging device here was not an intrusion into Kyllo's home. No intimate details of the home were observed, and there was no intrusion upon the privacy of the individuals within the home. The device used cannot penetrate walls or windows to reveal conversations or human activities. The device recorded only the heat being emitted from the home." Supp. App. to Pet. for Cert. 40.
[2] Thus, for example, we have found consistent with the Fourth Amendment, even absent a warrant, the search and seizure of garbage left for collection outside the curtilage of a home, California v. Greenwood, 486 U. S. 35 (1988) ; the aerial surveillance of a fenced-in backyard from an altitude of 1,000 feet, California v. Ciraolo, 476 U. S. 207 (1986) ; the aerial observation of a partially exposed interior of a residential greenhouse from 400 feet above, Florida v. Riley, 488 U. S. 445 (1989) ; the aerial photography of an industrial complex from several thousand feet above, Dow Chemical Co. v. United States, 476 U. S. 227 (1986) ; and the observation of smoke emanating from chimney stacks, Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp., 416 U. S. 861 (1974) .
[3] Although the Court credits us with the "novel proposition that inference insulates a search," ante, at 36, our point simply is that an inference cannot be a search, contrary to the Court's reasoning. See supra this page. Thus, the Court's use of United States v. Karo, 468 U. S. 705 (1984), to refute a point we do not make underscores the fact that the Court has no real answer (either in logic or in law) to the point we do make. Of course, Karo itself does not provide any support for the Court's view that inferences can amount to unconstitutional searches. The illegality in that case was "the monitoring of a beeper in a private residence" to obtain information that "could not have [been] obtained by observation from outside," id., at 714-715, rather than any thought processes that flowed from such monitoring.
[4] This view comports with that of all the Courts of Appeals that have resolved the issue. See 190 F. 3d 1041 (CA9 1999); United States v. Robinson, 62 F. 3d 1325 (CA11 1995) (upholding warrantless use of thermal imager); United States v. Myers, 46 F. 3d 668 (CA7 1995) (same); United States v. Ishmael, 48 F. 3d 850 (CA5 1995) (same); United States v. Pinson, 24 F. 3d 1056 (CA8 1994) (same). But see United States v. Cusumano, 67 F. 3d 1497 (CA10 1995) (warrantless use of thermal imager violated Fourth Amendment), vacated and decided on other grounds, 83 F. 3d 1247 (CA10 1996) (en banc) .
[5] The record describes a device that numbers close to a thousand manufactured units; that has a predecessor numbering in the neighborhood of 4,000 to 5,000 units; that competes with a similar product numbering from 5,000 to 6,000 units; and that is "readily available to the public" for commercial, personal, or law enforcement purposes, and is just an 800number away from being rented from "half a dozen national companies" by anyone who wants one. App. 18. Since, by virtue of the Court's new rule, the issue is one of first impression, perhaps it should order an evidentiary hearing to determine whether these facts suffice to establish "general public use."
[6] The use of the latter device would be constitutional given Smith v. Maryland, 442 U. S.735, 741 (1979), which upheld the use of pen registers to record numbers dialed on a phone because, unlike "the listening device employed in Katz . .. pen registers do not acquire the contents of communications."
__MACOSX/Freedom, Privacy and Tech./._Kyllo%20v%20US%20Supreme%20Ct.docx
Freedom, Privacy and Tech./Marx%20and%20Smith%20Intro%20Technological%20Determinism.pdf
__MACOSX/Freedom, Privacy and Tech./._Marx%20and%20Smith%20Intro%20Technological%20Determinism.pdf
Freedom, Privacy and Tech./Marx%20GT%20Soft%20Surveillance%20Dissent%202005.pdf
3636363636 ����� DISSENT / Fall 2005
Gary T. Marx
n Truro, Massachusetts, at the end of 2004, police politely asked all male resi- dents to provide a DNA sample to match
with DNA material found at the scene of an unsolved murder. Residents were approached in a non-threatening manner and asked to help solve the crime. This tactic of rounding up all the usual suspects and then some is still rare in the United States for historical, legal, and logistical reasons, but it is becoming more com- mon. The Truro case illustrates expanding trends in surveillance and social control.
There is increased reliance on “soft” means for collecting personal information. In crimi- nal justice contexts these means involve some or all of the following: persuasion to gain vol- untary compliance, universality or at least in- creased inclusiveness, and emphasis on the needs of the community relative to the rights of the individual.
As with other new forms of surveillance and detection, the process of gathering the DNA information is quick and painless, involving a mouth swab, and is generally not felt to be in- vasive. This makes such requests seem harm- less relative to the experience of having blood drawn, having an observer watch while a urine drug sample is produced, or being patted down or undergoing a more probing physical search.
In contrast, more traditional police meth- ods, such as an arrest, a custodial interroga- tion, a search, a subpoena, or traffic stop, are “hard.” They involve coercion and threat to gain involuntary compliance. They may also involve a crossing of intimate personal borders, as with a strip or body-cavity search. In principle such means are restricted by law and policy to per- sons there are reasons to suspect, and thus they implicitly recognize the liberty of the individual
relative to the needs of the community. Yet the culture of social control is chang-
ing. Hard forms of control are not receding, but soft forms are expanding. I note several forms of this, from requesting volunteers based on appeals to good citizenship or patriotism to using disingenuous communication to profil- ing based on lifestyle and consumption to uti- lizing hidden or low-visibility, information col- lection techniques.
The theme of volunteering as good citizen- ship or patriotism can increasingly be seen in other contexts. Consider a Justice Department “Watch Your Car” program found in many states. Decals that car owners place on their vehicles serve as an invitation to police any- where in the United States to stop the car if they see it being driven late at night.
A related form of voluntarism involves us- ing citizens as adjuncts to law enforcement by watching others. Beyond the traditional Neigh- borhood Watch, we can note new post-9/11 programs, such as a police-sponsored C.A.T. EYES (Community Anti-Terrorism Training Initiative), and efforts to encourage truckers, utility workers, taxi drivers, and delivery per- sons to report suspicious activity.
There also appears to be an increase in fed- eral prosecutors’ asking corporations under in- vestigation to waive their attorney/client privi- lege. This can provide information that is not otherwise available—in return for indicting only lower level personnel. Plea bargaining shares a similar logic of coercive “volunteer- ing,” often hidden under a judicially sanctified and sanitized veneer of disguised coercion.
Another “soft” method involves disingenu- ous communication that seeks to create the impression that one is volunteering when that isn’t the case. Consider the following: • the ubiquitous building signs, “In entering here you have agreed to be searched” • a message from the Social Security Admin-
Soft Surveillance Mandatory Voluntarism and the Collection of Personal Data
I
DISSENT / Fall 2005 ����� 3737373737
istration to potential recipients: “While it is voluntary for you to furnish this information, we may not be able to pay benefits to your spouse unless you give us the information” • a Canadian airport announcement: “Notice: Security measures are being taken to observe and inspect persons. No passengers are obliged to submit to a search of persons or goods if they choose not to board our aircraft”
A related form of soft surveillance involves corporations more than government. Note the implicit bargain with respect to technologies of consumption in which the collection of per- sonally identifiable (and often subsequently marketed) information is built into the very activity. We gladly, if often barely consciously, give up this information in return for the ease of buying and communicating and the seduc- tions of frequent-flyer and other reward pro- grams. Information collection is unseen and automated (in a favored engineering goal, “the human is out of the loop”), generating the ap- pearance of actions that are neutral and ob- jective and ignoring the choices inherent in the design of the system. Data gathering is “natu- rally” folded into routine activities such as driv- ing a car; watching television; or using a credit card, computer, or telephone.
And then there are those who agree to re- port their consumption behavior and attitudes in more detail as part of market research. A new variant goes beyond the traditional paid “volunteers” of the Nielsen ratings and other consumer research. Volunteers are given free samples and talking points. They seek to cre- ate “buzz” about new products without reveal- ing their connection to the sponsoring busi- ness. According to a New York Times Magazine story, Procter and Gamble for example has 240,000 volunteers in its teenage product pro- paganda/diffusion network. Although many call, few are chosen (10 percent–15 percent) for this highly coveted role. These volunteer intelligence and marketing agents report on their own and others’ responses to products, take surveys, and participate in focus groups.
What is at stake here isn’t merely im- proved advertising in intensely competitive industries but a new and morally ambiguous form of tattling. Regardless of whether they are compensated, the providers of information
to marketing research are also volunteering information on those who share their charac- teristics and experiences. However, no direct benefits flow to the mass of persons the spon- soring agency learns about. There are paral- lels to DNA analysis here: an individual who voluntarily offers his or her information also simultaneously offers information on family members who have not agreed to this. We lack an adequate conceptual, ethical, and legal framework for considering this spillover effect from voluntary to involuntary disclosure in- volving third parties.
We can also note changes in a related cul- tural area, involving the willing, even gleeful public exposure of private information— whether in dress styles, cell phone conversa- tions, or the mass media. Many Americans are drawn to new communications technologies like nails to a magnet, unable to resist the pru- rient call to watch others, but also with a near Dostoyevskian compulsion to offer information about themselves. There can be psychological gratifications from revelation for both the revealer and the recipient of the information.
The prying and often inane television talk and reality shows, Web cam pages, Web logs, the goofy waving of fans at televised events, and videotaping of conceptions, births, and last wills and testaments suggest the extent to which we have become both a performance and a spectator society—literally from the be- ginning of life to the end.
Searching Made Easy Many forms of voluntarism are encouraged by techniques designed to be less directly inva- sive. Computers scan dispersed personal records for suspicious cases, avoiding, at least initially, any direct review by a human. Simi- larly X-ray and scent machines “search” per- sons and goods for contraband without touch- ing them. Inkless fingerprints can be taken without the stained thumb symbolic of the ar- rested person. Classified government programs are said to permit the remote reading of com- puters and their transmissions without the need to directly install a bugging device.
Beyond the ease of gathering DNA, con- sider the change from a urine drug test requir- ing an observer, to drug tests that require a
SOFT SURVEILLANCE
3838383838 ����� DISSENT / Fall 2005
strand of hair, sweat, or saliva. Saliva is par- ticularly interesting. Whatever can be revealed from the analysis of blood or urine is also po- tentially found (although in smaller quantities) in saliva—not only evidence of disease and DNA, but also of drugs taken and pregnancy. The recent development of non-electrical sen- sors now makes it possible to detect molecules at minute levels in saliva.
To take blood is to pierce the body’s pro- tective armor. But expectorating occurs easily, frequently, and is more “natural” than punc- turing a vein. Nor does it involve the unwanted observation required for a urine drug sample. Saliva samples can be taken easily and end- lessly, and the changes charted in them make possible the early identification of problems.
This may offer medical diagnostic advan- tages to the individual. Diagnostic spitting as a condition of employment is obviously of in- terest to employers concerned with rising health costs and resistance to urine drug tests—and eager to avoid liability for the ill- nesses of those who work around hazardous chemicals.
Authorities concerned with identifying those who spit when not requested to can also use the technology. The transit authority in Sheffield, England, as part of an anti-spitting campaign, distributed three thousand DNA swab kits to transportation staff. Posters pro- claim “Spit? It’s Out” and warn persons who spit that “ . . . you can be traced—and pros- ecuted. Even if we don’t know what you look like. And your record will be on the national DNA database. Forever.”
The automated analysis of urine offers many of the advantages of saliva. A diagnostic test routinely used in some Japanese employ- ment contexts requires that each employee who enters a stall be identified through an ac- cess card. This permits a comprehensive record of flushed offerings over time. It is said to be of great benefit in the early diagnosis of health problems, and it can also determine drug use, recent sexual activity, and pregnancy.
In many of these cases citizens are at least informed of what is going on, even if the mean- ing of their consent is open to question. More troubling is the development of tactics that need not rely on the subject’s consenting or
even being informed. New hidden or low-vis- ibility technologies increasingly offer the tempting possibility of bypassing awareness, and thus any need for direct consent, alto- gether.
New technologies overcome traditional barriers, such as darkness or walls. Night-vi- sion technology illuminates what darkness tra- ditionally protected (and the technology is it- self protected, unlike an illuminated spotlight). Thermal imaging technology applied from out- side can offer a rough picture of a building’s interior based on heat patterns. There is no need for the observer to enter the space.
A person’s DNA can be collected from a drinking glass or from discarded dental floss. Facial-scanning requires only a tiny lens. Smart machines can “smell” contraband, eliminating the need for a warrant or for asking subjects for permission to invade their olfactory space or “see” through their clothes and luggage. Be- yond the traditional reading of visual clues of- fered by facial expression, there are claims that
SOFT SURVEILLANCE
PHOTO BY CLIVE NORRIS
DISSENT / Fall 2005 ����� 3939393939
the covert analysis of heat patterns around the eyes and of tremors in the voice and the mea- surement of brain wave patterns offer windows into feelings and truth telling. The face still remains a tool for protecting inner feelings and thoughts, but for how long?
Individuals need not be informed that their communications devices, vehicles, wallet cards, and consumer items increasingly will have RFID (Radio Frequency Identification) chips embedded in them that can be designed to be passively read by unseen sensors from up to thirty feet away.
In the convoluted logic of those who jus- tify covert (or non-informed) data collection and use, individuals “volunteer” their data by walking or driving on public streets or enter- ing a shopping mall; by failing to hide their faces or wear gloves or encrypt their commu- nications; or by choosing to use a phone, com- puter, or a credit card. The statement of a di- rect marketer nicely illustrates this: “Never ever underestimate the willingness of the American public to tell you about itself. That data be- longs to us! . . . [I]t isn’t out there because we stole it . . . Someone gave it away and now it’s out there for us to use.”
No Easy Answers In an environment of intense concern about crime and terrorism and a legal framework gen- erated in a far simpler time, the developments discussed above are hardly surprising. Demo- cratic governments need to be reasonably ef- fective and to maintain their legitimacy (even as research on the complex relationships be- tween effectiveness and legitimacy is needed). Working together and sacrificing a bit of one- self for the common good, particularly in times of crisis, is hardly controversial. Relative to tra- ditional authoritarian settings, many of the above examples show respect for the person in offering notice and some degree of choice and in minimizing invasiveness. Such efforts draw on the higher civic traditions of demo- cratic participation, self-help, and community. They may also deter. Yet there is something troubling about them.
The accompanying rhetoric is often dishon- est and insulting to one’s intelligence. Typical is a phone company executive who, in defense
of unblockable caller ID, said, “When you choose to make a phone call you are choosing to release your telephone number.” In the same World Cup League of Disingenuousness is the statement of a personnel manager in a one-in- dustry town, “We don’t require anyone to take a drug test, only those who choose to work here.”
To be meaningful, choice should imply genuine alternatives and refusal costs that are not wildly exorbitant. Absent that, we have trickery, double-talk, and inequitable relation- ships. When we are told that for the good of the community we must voluntarily submit to searches or provide information, we run the danger of the tyranny of turning presumptions of innocence upside down. If only the guilty need worry, why bother with a Bill of Rights and other limits on authority? There also comes a point beyond which social pressure seems un- reasonable. If the case for categorical informa- tion is strong, then the law ought to require it without need of the verbal gymnastics of ask- ing for volunteers or arguing that subjects are in fact taking voluntary action in the full mean- ing of the term, when they aren’t.
Those who fail to volunteer can be viewed as having something to hide or as being bad citizens. The positive reasons for rejecting such requests are ignored. Yet we all have things to hide or, more properly, to reveal selectively, depending on the relationship and context. The general social value we place on sealed first- class letters, window blinds, and bathroom doors, and our opposition to indiscriminate wiretapping, bugging, and informing, or to giv- ing up anonymity in public places (absent cause), are hardly driven by an interest in aid- ing the guilty. Sealing juvenile criminal records does not reflect a perverse strategy for infil- trating miscreants into adult life, but rather an understanding of, and some compassion for, the mistakes of youth.
We value privacy not to protect wrongdo- ing, but because an appropriate degree of con- trol over personal and social information is cen- tral to our sense of self, autonomy, and mate- rial well-being—as well as being necessary for independent group actions. A healthy, if nec- essarily qualified, suspicion of authority is also a factor in restricting information sought by the
SOFT SURVEILLANCE
4040404040 ����� DISSENT / Fall 2005
more powerful. As consumers and citizens we have an interest in avoiding the manipulation, discrimination, and theft that can flow from combining bits of personal information that are innocuous by themselves.
Many of the new controls may seem more acceptable (or at least are less likely to be chal- lenged) because they are hidden or built-in and less invasive relative to the traditional forms of crossing personal and physical borders. We are also often complicit in their application— whether out of fear, convenience, or for fre- quent-shopper awards. Converting privacy to a commodity in which the seller receives some- thing in return to compensate for the invasion is a clever and defensible means of overcom- ing resistance.
Exchanges and less invasive searches are certainly preferable to data rip-offs and more invasive searches. However, the nature of the means does not determine its acceptability. What matters most is the appropriateness of collecting the information and only secondarily the way that it is collected. A search is still a search, regardless of how it is carried out. The issue of searches and the crossing of traditional borders between the civil and state sectors or the self and others involves much more than painless, quick, inexpensive (or positively re- warding), and non-embarrassing means.
Other factors being equal, soft ways are to be preferred to hard, even if the control/instru- mental goals of those applying the surveillance remain the same. Yet coercion at least has the virtue (if that’s what it is) of letting the sub- ject (or object) know what is happening. What we don’t know can hurt us as well.
No More Happy Overlaps There are also pragmatic issues: does the tac- tical work? I have found no cases where the request for voluntarily offered samples solved the case. A guilty person would have to be very stupid indeed to come forth and volunteer a DNA sample. In the Truro case, a suspect was eventually arrested, but the arrest was based on other evidence.
Traditionally (if accidentally) there was a happy overlap between three factors that lim- ited searches and protected personal informa- tion. The first was logistical. It was not cost-
or time-effective to search everyone. The sec- ond was law. More invasive searches were pro- hibited or inadmissible, absent cause and a warrant. The third reflected the affront expe- rienced in our culture when certain personal borders were involuntarily crossed (for ex- ample, strip and body-cavity searches, taking body fluids, and to a lesser degree, fingerprint- ing). Limited resources, the unpleasantness of invasive searchers (for both the searched and the searcher), and the ethos of a democratic society historically restricted searches.
These supports are no longer overlapping. Instead, they are being undermined by the mass media’s encouragement of fear and per- ceptions of crises and by the seductiveness of consumption—together with the development of inexpensive, less invasive, broad searching tools. Under these conditions one does not need a meteorologist to describe wind patterns.
The willingness to offer personal informa- tion and the fascination with the private as- pects of others’ lives is a partial legacy of the openness and transparency of the 1960s. But it also speaks to some need of the modern per- son (and perhaps, in particular, the American) to see and be seen and to know and be known about through the ubiquitous camera and re- lated means.
Volunteering one’s data and being digitally recorded and tracked is coming to be taken for granted as a means of asserting selfhood. This willful blurring of some of the lines between the public and private self and the ready avail- ability of technologies to transmit and receive personal data give new meaning to David Riesman’s concern with “other direction.”
Of course our sense of self and social par- ticipation have always depended on validation from others—on seeing ourselves in, and through, their eyes. But contemporary forms of validation induce a sense of pseudo-authen- ticity, an unbecoming narcissism, and a suspi- cious spy culture. The social functions of reti- cence and embarrassment and the role of with- held personal information as a currency of trust, friendship, and intimacy are greatly weak- ened.
The abundance of new opportunities for self-expression offered by contemporary tech- nologies must be considered alongside the less-
SOFT SURVEILLANCE
DISSENT / Fall 2005 ����� 4141414141
ened control we have over information in dis- tant computer systems. Data shadows or ghosts based on tangents of personal information (stripped of context) increasingly affect our life chances. The subject often has little knowledge of the existence or consequences of these data- bases and of how they are constructed or might be challenged.
This complicated issue of reducing the richness of personal and social contexts to a limited number of variables is at the core of the ability of science to predict. It is central to current ideas about economic competitiveness. The data analyst goes from known empirical cases to equivalent cases that are not directly known. Because a given case can be classified relative to a statistical model as involving a high or low risk, it is presumed to be understood and thus controllable (at least on statistical or “probabilistic” bases). This may work fine for business or medical decisions, but civil liber- ties and civil rights are not based on statistical categories. They are presumed to be univer- sally applicable absent cause to deny them. So rationality and efficiency increasingly clash with many of our basic Enlightenment ideas of individualism and dignity—ideas that were better articulated and less contestable, in tech- nologically simpler times.
There is a chilling drift into a society where you have to provide ever-more personal infor- mation in order to prove that you are the kind of person who does not merit even more in- tensive scrutiny. Here we confront the insa- tiable information appetite generated by sci- entific knowledge in a risk-adverse society. In such a society, knowing more may only serve to increase the need for more information.
My concern is more with cultural and be- havioral developments than with the law. Cer- tainly we do not lack for contemporary ex- amples of constricted or trampled legal rights (for example, the unwelcome elements of the Patriot Act or American citizens held on ter- rorism charges without trial). Still, the grow- ing institutionalization of civil rights and civil liberties over the last century (involving race, gender, children, work, freedom of expression and association, searches, and lifestyles) is un- likely to be reversed. Jagged cycles rather than clean linearity will continue to characterize this
turbulent history. Wartime restrictions (whether Lincoln’s suspending of habeas cor- pus or limits on speech during the Second World War) have been lifted as calmer times returned. To be sure the evidence of ebbs is undeniable, but even in the shadow of 9/11 there are some flows as well, particularly at the state and local level. Consider, for example, the many cities that have passed resolutions criti- cal of the Patriot Act.
The cultural changes are worrisome be- cause they are diffuse, subtle, and unseen— and they often reflect choices that are diffi- cult to challenge in a democratic society. The possibility of wrongful choice is an inherent risk of democracy.
One’s liberty can be used to smoke, eat rich foods, drive environmentally unfriendly cars, and watch unreality television, as well as to volunteer personal information—whether to government or the commercial sector. A bad law can be challenged in court or repealed. A dangerous technology can be banned, regu- lated, or countered with a different technol- ogy. But the only way to respond to liberty- threatening choices of the kind discussed here is through dialogue and education (tools that are already disproportionately available to those supporting the current developments).
Is It Happening Here? Contrary to the familiar Orwellian concerns about the all-knowing eyes and ears of govern- ment, recent history suggests to some observ- ers the reverse problem—blindness, deafness, and inefficiency (for example, the 9/11 danger known only in retrospect, the failure of vari- ous airline passenger screening programs, wrongful convictions, and so on). In one sense, there are two problems with the new surveil- lance technologies. One is that they don’t work, and the other is that they work too well. If the first, they fail to prevent disasters, bring mis- carriages of justice, and waste resources. If the second, they can further inequality and invidi- ous social categorization; they chill liberty. These twin threats are part of the enduring paradox of democratic government that must be strong enough to maintain reasonable or- der but not so strong as to become undemo- cratic.
SOFT SURVEILLANCE
4242424242 ����� DISSENT / Fall 2005
The surveillance developments noted here are consistent with the strengthening of the neoliberal ethos of the last decade. The idea of voluntary compliance seems to fit with in- creased individual choices, costs, and risks. It simultaneously weakens many social protec- tions and pays less attention to the ways the social order produces bad choices and collec- tive problems. The consequences of these are then left to individual and private solutions. This generates a suspicious society in which paranoia is entangled with reality.
There is no single answer to how the new personal information collection techniques ought to be viewed and what, if anything, should (or can) be done about them. From genuine to mandatory voluntarism and from open to secret data collection—these are points on continuums. There are important moral differences between what can be known through the unaided senses and what can only be known through technologically enhanced senses. The moral and practical issues around the initial collection of information are distinct from its subsequent uses and protections.
Diverse settings—national security, domes- tic law enforcement, public order mainte- nance, health and welfare, commerce, bank- ing, insurance, public and private spaces and roles—do not allow for the rigid application of the same policies. The different roles of em- ployer-employee, merchant-consumer, land- lord-renter, police-suspect, and health pro- vider-patient involve legitimate conflicts of in- terests. Any social practice is likely to involve conflict of values.
We need a situational or contextual per- spective that acknowledges the richness of dif- ferent contexts, as well as the multiplicity of conflicting values within and across them.
n the face of the simplistic rhetoric of po- larized ideologues in dangerous times, we need attention to trade-offs and to the ap-
propriate weighing of conflicting values. There is no fixed golden balance point. However the procedures for accountability and oversight so central to the founding and endurance of the country must remain strong. We must resist the appeals to morality and panic that can erode these procedures.
It would be foolish to elevate consent to an absolute, but neither should we continue to slide into a world where meaningful con- sent is only of historical interest. At best we can hope to find a compass rather than a map and a moving equilibrium rather than a fixed point for decision making.
Appreciating complexity is surely a virtue, but being immobilized by it is not. The default position should be meaningful consent, absent strong grounds for avoiding it. Consent involves participants who are fully aware of the surveil- lance system’s presence and potential risks and of the conditions under which it operates. Con- sent obtained through deception or unreason- able or exploitative seduction or to avoid dire consequences is hardly consent. The smile that accompanies the statement, “an offer you can’t refuse” reflects that understanding.
We must demand a principle of truth in vol- unteering; it is far better to say clearly that “as a condition of [entering here, working here, receiving this benefit, etc.] we require that you provide personal information.” A golden rule principle ought also to apply: Would the infor- mation collector be comfortable in being the subject, rather than the agent, of surveillance, if the situation were reversed? These are among twenty broad questions and related principles that I suggest be asked in any assessment of personal information collection.
We need to overcome the polite tendency to acquiesce when we are inappropriately asked for personal information. We need to just say “no” when, after we pay with a credit card, a cashier asks for a phone number or when a Web page or warranty form asks for irrelevant personal information or a video store seeks a Social Security number. Offering disinforma- tion may sometimes be appropriate. The junk mail I receive for Groucho and Karl gives me a laugh as well as a way to track the erroneous information I sometimes provide.
Finally, technology needs to be seen as an opportunity, rather than a problem. Technolo- gies can be designed to protect personal infor- mation and notify individuals when their in- formation is collected or has been compro- mised. Thus electronic silencers can inhibit third parties from overhearing cell-phone and face-to-face conversations, and computer pri-
SOFT SURVEILLANCE
I
DISSENT / Fall 2005 ����� 4343434343
vacy screens can block sneaky peeks by any- one not directly in front of the screen. E-ZPass toll collection systems can be programmed to deduct payment, while protecting the anonym- ity of the driver. RFID technology can build in notification by requiring that the chip make physical contact with the sensor (for example, touching the card or item to the sensor), rather than permitting it to be read covertly at a dis- tance. Cell-phone cameras can be designed to emit a telltale sound before a picture is taken (this is required in Japan).
From one perspective, using technology to protect one’s personal information may offer legal support for an expectation of privacy. In Kyllo v. United States, a case involving the le- gality of a search warrant based on evidence from thermal-imaging technology, the dissent- ing judges argued that because the suspect did not take any actions to block the heat emis- sions that passed through his roof from his marijuana grow lights, he did not have an ex- pectation of privacy. There thus is no Fourth Amendment issue, and the police action should not require a warrant. This collapsing of what can be done with what is right involves an inverted logic. Once a technology becomes widely available and is well known, responsi- bility for protection shifts legally (as well of course as practically) to the individual, not to those who would cross personal borders. In failing to act in response to changed circum- stances beyond his or her control, the indi- vidual is seen to be making a choice and, in a sense, volunteering to be searched.
This blame-the-victim caveat subjectus logic cries out for a cartoon entitled, “Where will it end?” Beyond the paper shredder, which has become routine in many homes, the cartoon
would show a citizen protecting privacy by al- ways wearing gloves, a mask, and perfume; hav- ing a closely shaved head; talking in code and encrypting all communications; insulating home, office, and packages in thermal-image- resistant tinfoil; and only using restrooms cer- tified to be monitor free.
Sinclair Lewis hoped in 1935 that It Can’t Happen Here. But of course it can, and in some ways it has. Twenty years ago in reflec- tions on the year and book 1984, I wrote in these pages,
The first task of a society that would have lib- erty and privacy is to guard against the misuse of physical coercion by the state and private parties. The second task is to guard against the softer forms of secret and manipulative con- trol. Because these are often subtle, indirect, invisible, diffuse, deceptive, and shrouded in benign justifications, this is clearly the more difficult task.
Two decades later the hot-button cultural themes of threat, civil order, and security that Lewis emphasized are in greater ascendance and have been joined by the siren calls of con- sumption. If our traditional notions of liberty disappear, it will not be because of a sudden coup d’état. Nor will the iron technologies of industrialization be the central means. Rather, it will occur slowly, with an appeal to traditional American values in a Teflon- and sugar-coated technological context of low visibility, fear, and convenience.
Gary T. Marx is an electronic (garymarx.net) and itinerant scholar and author of Windows Into the Soul: Surveillance and Society in an Age of High Technology (University of Chicago Press, forth- coming).
David Altheide, Creating Fear: News and the Construction of
Crisis (Aldine de Gruyter, 2002).
Barry Glassner, The Culture of Fear (Basic Books, 2000).
Sinclair Lewis, It Can’t Happen Here (New York: Signet Clas-
sics, 1995, re-issued).
Gary Marx, “Seeing Hazily (But Not Darkly) Through the
Lens: Some Recent Empirical Studies of Surveillance Tech-
nologies” (Law and Social Inquiry, Spring 2005).
Ibid, “I’ll Be Watching You: The New Surveillance” (Dissent,
Winter 1985).
David Riesman. et al., The Lonely Crowd (Yale University
Press, 2001).
Rob Walker, “The Corporate Manufacture of Word of Mouth”
(New York Times Magazine, December 5, 2004).
SOFT SURVEILLANCE
•
__MACOSX/Freedom, Privacy and Tech./._Marx%20GT%20Soft%20Surveillance%20Dissent%202005.pdf
Freedom, Privacy and Tech./Olmstead%20v.%20U.S..doc
277 U.S. 438 (1928)
OLMSTEAD ET AL. v. UNITED STATES. GREEN ET AL. v. SAME. McINNIS v. SAME.
Nos. 493, 532 and 533.
Supreme Court of United States.
Argued February 20, 21, 1928.
Decided June 4, 1928.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
439*439 Mr. John F. Dore, with whom Messrs. F.C. Reagan and J.L. Finch were on the brief, for petitioners in No. 493.
Mr. Frank R. Jeffery, for petitioner in No. 533, and some of the petitioners in No. 532.
Messrs. Arthur E. Griffin, George F. Vanderveer, and Samuel B. Bassett, on a brief for petitioners in No. 532.
Mr. Michael J. Doherty, Special Assistant to the Attorney General, with whom Solicitor General Mitchell was on the brief, for the United States.
Messrs. Otto B. Rupp, Charles M. Bracelen, Robert H. Strahan, and Clarence B. Randall on behalf of The Pacific Telephone and Telegraph Company, American Telephone and Telegraph Company, United States Independent Telephone Association, and the Tri-State Telephone and Telegraph Company, as amici curiae, filed a brief by special leave of Court.
455*455 MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
These cases are here by certiorari from the Circuit Court of Appeals for the Ninth Circuit. 19 F. (2d) 842 and 850. The petition in No. 493 was filed August 30, 1927; in Nos. 532 and 533, September 9, 1927. They were granted with the distinct limitation that the hearing should be confined to the single question whether the use of evidence of private telephone conversations between the defendants and others, intercepted by means of wire tapping, amounted to a violation of the Fourth and Fifth Amendments.
The petitioners were convicted in the District Court for the Western District of Washington of a conspiracy to violate the National Prohibition Act by unlawfully possessing, transporting and importing intoxicating liquors and maintaining nuisances, and by selling intoxicating liquors. Seventy-two others in addition to the petitioners were indicted. Some were not apprehended, some were acquitted and others pleaded guilty.
The evidence in the records discloses a conspiracy of amazing magnitude to import, possess and sell liquor unlawfully. 456*456 It involved the employment of not less than fifty persons, of two seagoing vessels for the transportation of liquor to British Columbia, of smaller vessels for coastwise transportation to the State of Washington, the purchase and use of a ranch beyond the suburban limits of Seattle, with a large underground cache for storage and a number of smaller caches in that city, the maintenance of a central office manned with operators, the employment of executives, salesmen, deliverymen, dispatchers, scouts, bookkeepers, collectors and an attorney. In a bad month sales amounted to $176,000; the aggregate for a year must have exceeded two millions of dollars.
Olmstead was the leading conspirator and the general manager of the business. He made a contribution of $10,000 to the capital; eleven others contributed $1,000 each. The profits were divided one-half to Olmstead and the remainder to the other eleven. Of the several offices in Seattle the chief one was in a large office building. In this there were three telephones on three different lines. There were telephones in an office of the manager in his own home, at the homes of his associates, and at other places in the city. Communication was had frequently with Vancouver, British Columbia. Times were fixed for the deliveries of the "stuff," to places along Puget Sound near Seattle and from there the liquor was removed and deposited in the caches already referred to. One of the chief men was always on duty at the main office to receive orders by telephones and to direct their filling by a corps of men stationed in another room — the "bull pen." The call numbers of the telephones were given to those known to be likely customers. At times the sales amounted to 200 cases of liquor per day.
The information which led to the discovery of the conspiracy and its nature and extent was largely obtained by intercepting messages on the telephones of the conspirators by four federal prohibition officers. Small 457*457 wires were inserted along the ordinary telephone wires from the residences of four of the petitioners and those leading from the chief office. The insertions were made without trespass upon any property of the defendants. They were made in the basement of the large office building. The taps from house lines were made in the streets near the houses.
The gathering of evidence continued for many months. Conversations of the conspirators of which refreshing stenographic notes were currently made, were testified to by the government witnesses. They revealed the large business transactions of the partners and their subordinates. Men at the wires heard the orders given for liquor by customers and the acceptances; they became auditors of the conversations between the partners. All this disclosed the conspiracy charged in the indictment. Many of the intercepted conversations were not merely reports but parts of the criminal acts. The evidence also disclosed the difficulties to which the conspirators were subjected, the reported news of the capture of vessels, the arrest of their men and the seizure of cases of liquor in garages and other places. It showed the dealing by Olmstead, the chief conspirator, with members of the Seattle police, the messages to them which secured the release of arrested members of the conspiracy, and also direct promises to officers of payments as soon as opportunity offered.
The Fourth Amendment provides — "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized." And the Fifth: "No person . . . shall be compelled, in any criminal case, to be a witness against himself."
458*458 It will be helpful to consider the chief cases in this Court which bear upon the construction of these Amendments.
Boyd v. United States, 116 U.S. 616, was an information filed by the District Attorney in the federal court in a cause of seizure and forfeiture against thirty-five cases of plate glass, which charged that the owner and importer, with intent to defraud the revenue, made an entry of the imported merchandise by means of a fraudulent or false invoice. It became important to show the quantity and value of glass contained in twenty-nine cases previously imported. The fifth section of the Act of June 22, 1874, provided that in cases not criminal under the revenue laws, the United States Attorney, whenever he thought an invoice, belonging to the defendant, would tend to prove any allegation made by the United States, might by a written motion describing the invoice and setting forth the allegation which he expected to prove, secure a notice from the court to the defendant to produce the invoice, and if the defendant refused to produce it, the allegations stated in the motion should be taken as confessed, but if produced, the United States Attorney should be permitted, under the direction of the court, to make an examination of the invoice, and might offer the same in evidence. This Act had succeeded the Act of 1867, which provided that in such cases the District Judge, on affidavit of any person interested, might issue a warrant to the marshal to enter the premises where the invoice was and take possession of it and hold it subject to the order of the judge. This had been preceded by the Act of 1863 of a similar tenor, except that it directed the warrant to the collector instead of the marshal. The United States Attorney followed the Act of 1874 and compelled the production of the invoice.
The court held the Act of 1874 repugnant to the Fourth and Fifth Amendments. As to the Fourth Amendment, Justice Bradley said (page 621):
459*459 "But, in regard to the Fourth Amendment, it is contended that, whatever might have been alleged against the constitutionality of the acts of 1863 and 1867, that of 1874, under which the order in the present case was made, is free from constitutional objection because it does not authorize the search and seizure of books and papers, but only requires the defendant or claimant to produce them. That is so; but it declares that if he does not produce them, the allegations which it is affirmed they will prove shall be taken as confessed. This is tantamount to compelling their production; for the prosecuting attorney will always be sure to state the evidence expected to be derived from them as strongly as the case will admit of. It is true that certain aggravating incidents of actual search and seizure, such as forcible entry into a man's house and searching amongst his papers, are wanting, and to this extent the proceeding under the Act of 1874 is a mitigation of that which was authorized by the former acts; but it accomplishes the substantial object of those acts in forcing from a party evidence against himself. It is our opinion, therefore, that a compulsory production of a man's private papers to establish a criminal charge against him, or to forfeit his property, is within the scope of the Fourth Amendment to the Constitution, in all cases in which a search and seizure would be; because it is a material ingredient, and effects the sole object and purpose of search and seizure."
Concurring, Mr. Justice Miller and Chief Justice Waite said that they did not think the machinery used to get this evidence amounted to a search and seizure, but they agreed that the Fifth Amendment had been violated.
The statute provided an official demand for the production of a paper or document by the defendant for official search and use as evidence on penalty that by refusal he should be conclusively held to admit the incriminating 460*460 character of the document as charged. It was certainly no straining of the language to construe the search and seizure under the Fourth Amendment to include such official procedure.
The next case, and perhaps the most important, is Weeks v. United States, 232 U.S. 383, — a conviction for using the mails to transmit coupons or tickets in a lottery enterprise. The defendant was arrested by a police officer without a warrant. After his arrest other police officers and the United States marshal went to his house, got the key from a neighbor, entered the defendant's room and searched it, and took possession of various papers and articles. Neither the marshal nor the police officers had a search warrant. The defendant filed a petition in court asking the return of all his property. The court ordered the return of everything not pertinent to the charge, but denied return of relevant evidence. After the jury was sworn, the defendant again made objection, and on introduction of the papers contended that the search without warrant was a violation of the Fourth and Fifth Amendments and they were therefore inadmissible. This court held that such taking of papers by an official of the United States, acting under color of his office, was in violation of the constitutional rights of the defendant, and upon making seasonable application he was entitled to have them restored, and that by permitting their use upon the trial, the trial court erred.
The opinion cited with approval language of Mr. Justice Field in Ex parte Jackson, 96 U.S. 727, 733, saying that the Fourth Amendment as a principle of protection was applicable to sealed letters and packages in the mail and that, consistently with it, such matter could only be opened and examined upon warrants issued on oath or affirmation particularly describing the thing to be seized.
In Silverthorne Lumber Company v. United States, 251 U.S. 385, the defendants were arrested at their homes and 461*461 detained in custody. While so detained, representatives of the Government without authority went to the office of their company and seized all the books, papers and documents found there. An application for return of the things was opposed by the District Attorney, who produced a subpoena for certain documents relating to the charge in the indictment then on file. The court said:
"Thus the case is not that of knowledge acquired through the wrongful act of a stranger, but it must be assumed that the Government planned or at all events ratified the whole performance."
And it held that the illegal character of the original seizure characterized the entire proceeding and under the Weeks case the seized papers must be restored.
In Amos v. United States, 255 U.S. 313, the defendant was convicted of concealing whiskey on which the tax had not been paid. At the trial he presented a petition asking that private property seized in a search of his house and store "within his curtilage," without warrant should be returned. This was denied. A woman, who claimed to be his wife, was told by the revenue officers that they had come to search the premises for violation of the revenue law. She opened the door; they entered and found whiskey. Further searches in the house disclosed more. It was held that this action constituted a violation of the Fourth Amendment, and that the denial of the motion to restore the whiskey and to exclude the testimony was error.
In Gouled v. The United States, 255 U.S. 298, the facts were these: Gouled and two others were charged with conspiracy to defraud the United States. One pleaded guilty and another was acquitted. Gouled prosecuted error. The matter was presented here on questions propounded by the lower court. The first related to the admission in evidence of a paper surreptitiously taken from the office of the defendant by one acting under the direction 462*462 of an officer of the Intelligence Department of the Army of the United States. Gouled was suspected of the crime. A private in the U.S. Army, pretending to make a friendly call on him, gained admission to his office and in his absence, without warrant of any character, seized and carried away several documents. One of these belonging to Gouled, was delivered to the United States Attorney and by him introduced in evidence. When produced, it was a surprise to the defendant. He had had no opportunity to make a previous motion to secure a return of it. The paper had no pecuniary value, but was relevant to the issue made on the trial. Admission of the paper was considered a violation of the Fourth Amendment.
Agnello v. United States, 269 U.S. 20, held that the Fourth and Fifth Amendments were violated by admission in evidence of contraband narcotics found in defendant's house, several blocks distant from the place of arrest, after his arrest, and seized there without a warrant. Under such circumstances the seizure could not be justified as incidental to the arrest.
There is no room in the present case for applying the Fifth Amendment unless the Fourth Amendment was first violated. There was no evidence of compulsion to induce the defendants to talk over their many telephones. They were continually and voluntarily transacting business without knowledge of the interception. Our consideration must be confined to the Fourth Amendment.
The striking outcome of the Weeks case and those which followed it was the sweeping declaration that the Fourth Amendment, although not referring to or limiting the use of evidence in courts, really forbade its introduction if obtained by government officers through a violation of the Amendment. Theretofore many had supposed that under the ordinary common law rules, if the tendered evidence was pertinent, the method of obtaining it was 463*463 unimportant. This was held by the Supreme Judicial Court of Massachusetts in Commonwealth v. Dana, 2 Metcalf, 329, 337 . There it was ruled that the only remedy open to a defendant whose rights under a state constitutional equivalent of the Fourth Amendment had been invaded was by suit and judgment for damages, as Lord Camden held in Entick v. Carrington, 19 Howell State Trials, 1029 . Mr. Justice Bradley made effective use of this case in Boyd v. United States . But in the Weeks case, and those which followed, this Court decided with great emphasis, and established as the law for the federal courts, that the protection of the Fourth Amendment would be much impaired unless it was held that not only was the official violator of the rights under the Amendment subject to action at the suit of the injured defendant, but also that the evidence thereby obtained could not be received.
The well known historical purpose of the Fourth Amendment, directed against general warrants and writs of assistance, was to prevent the use of governmental force to search a man's house, his person, his papers and his effects; and to prevent their seizure against his will. This phase of the misuse of governmental power of compulsion is the emphasis of the opinion of the Court in the Boyd case. This appears too in the Weeks case, in the Silverthorne case and in the Amos case.
Gouled v. United States carried the inhibition against unreasonable searches and seizures to the extreme limit. Its authority is not to be enlarged by implication and must be confined to the precise state of facts disclosed by the record. A representative of the Intelligence Department of the Army, having by stealth obtained admission to the defendant's office, seized and carried away certain private papers valuable for evidential purposes. This was held an unreasonable search and seizure within the Fourth Amendment. A stealthy entrance in such circumstances 464*464 became the equivalent to an entry by force. There was actual entrance into the private quarters of defendant and the taking away of something tangible. Here we have testimony only of voluntary conversations secretly overheard.
The Amendment itself shows that the search is to be of material things — the person, the house, his papers or his effects. The description of the warrant necessary to make the proceeding lawful, is that it must specify the place to be searched and the person or things to be seized.
It is urged that the language of Mr. Justice Field in Ex parte Jackson, already quoted, offers an analogy to the interpretation of the Fourth Amendment in respect of wire tapping. But the analogy fails. The Fourth Amendment may have proper application to a sealed letter in the mail because of the constitutional provision for the Postoffice Department and the relations between the Government and those who pay to secure protection of their sealed letters. See Revised Statutes, §§ 3978 to 3988, whereby Congress monopolizes the carriage of letters and excludes from that business everyone else, and § 3929 which forbids any postmaster or other person to open any letter not addressed to himself. It is plainly within the words of the Amendment to say that the unlawful rifling by a government agent of a sealed letter is a search and seizure of the sender's papers or effects. The letter is a paper, an effect, and in the custody of a Government that forbids carriage except under its protection.
The United States takes no such care of telegraph or telephone messages as of mailed sealed letters. The Amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants.
465*465 By the invention of the telephone, fifty years ago, and its application for the purpose of extending communications, one can talk with another at a far distant place. The language of the Amendment can not be extended and expanded to include telephone wires reaching to the whole world from the defendant's house or office. The intervening wires are not part of his house or office any more than are the highways along which they are stretched.
This Court in Carroll v. United States, 267 U.S. 132, 149, declared:
"The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted and in a manner which will conserve public interests as well as the interests and rights of individual citizens."
Justice Bradley in the Boyd case, and Justice Clark in the Gouled case, said that the Fifth Amendment and the Fourth Amendment were to be liberally construed to effect the purpose of the framers of the Constitution in the interest of liberty. But that can not justify enlargement of the language employed beyond the possible practical meaning of houses, persons, papers, and effects, or so to apply the words search and seizure as to forbid hearing or sight.
Hester v. United States, 265 U.S. 57, held that the testimony of two officers of the law who trespassed on the defendant's land, concealed themselves one hundred yards away from his house and saw him come out and hand a bottle of whiskey to another, was not inadmissible. While there was a trespass, there was no search of person, house, papers or effects. United States v. Lee, 274 U.S. 559, 563 ; Eversole v. State, 106 Tex. Cr. 567 .
Congress may of course protect the secrecy of telephone messages by making them, when intercepted, inadmissible in evidence in federal criminal trials, by direct legislation, 466*466 and thus depart from the common law of evidence. But the courts may not adopt such a policy by attributing an enlarged and unusual meaning to the Fourth Amendment. The reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires beyond his house and messages while passing over them are not within the protection of the Fourth Amendment. Here those who intercepted the projected voices were not in the house of either party to the conversation.
Neither the cases we have cited nor any of the many federal decisions brought to our attention hold the Fourth Amendment to have been violated as against a defendant unless there has been an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house "or curtilage" for the purpose of making a seizure.
We think, therefore, that the wire tapping here disclosed did not amount to a search or seizure within the meaning of the Fourth Amendment.
What has been said disposes of the only question that comes within the terms of our order granting certiorari in these cases. But some of our number, departing from that order, have concluded that there is merit in the two-fold objection overruled in both courts below that evidence obtained through intercepting of telephone messages by government agents was inadmissible because the mode of obtaining it was unethical and a misdemeanor under the law of Washington. To avoid any misapprehension of our views of that objection we shall deal with it in both of its phases.
While a Territory, the English common law prevailed in Washington and thus continued after her admission in 1889. The rules of evidence in criminal cases in courts of the United States sitting there, consequently are those of the common law. United States v. Reid, 12 How. 361, 467*467 363, 366 ; Logan v. United States, 144 U.S. 263, 301 ; Rosen v. United States, 245 U.S. 467 ; Withaup v. United States, 127 Fed. 530, 534 ; Robinson v. United States, 292 Fed. 683, 685 .
The common law rule is that the admissibility of evidence is not affected by the illegality of the means by which it was obtained. Professor Greenleaf in his work on evidence, vol. 1, 12th ed., by Redfield, § 254(a) says:
"It may be mentioned in this place, that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue, to determine that question."
Mr. Jones in his work on the same subject refers to Mr. Greenleaf's statement, and says:
"Where there is no violation of a constitutional guaranty, the verity of the above statement is absolute." Vol. 5, § 2075, note 3.
The rule is supported by many English and American cases cited by Jones in vol. 5, § 2075, note 3, and § 2076, note 6; and by Wigmore, vol. 4, § 2183. It is recognized by this Court in Adams v. New York, 192 U.S. 585 . The Weeks case, announced an exception to the common law rule by excluding all evidence in the procuring of which government officials took part by methods forbidden by the Fourth and Fifth Amendments. Many state courts do not follow the Weeks case. People v. Defore, 242 N.Y. 13 . But those who do, treat it as an exception to the general common law rule and required by constitutional limitations. Hughes v. State, 145 Tenn. 544, 551, 566 ; State v. Wills, 91 W. Va. 659, 677 ; State v. Slamon, 73 Vt. 212, 214, 215 ; Gindrat v. People, 138 Ill. 103, 111 ; People v. Castree, 311 Ill. 392, 396, 397 ; State v. 468*468 Gardner, 77 Mont. 8, 21 ; State v. Fahn, 53 N. Dak. 203, 210. The common law rule must apply in the case at bar.
Nor can we, without the sanction of congressional enactment, subscribe to the suggestion that the courts have a discretion to exclude evidence, the admission of which is not unconstitutional, because unethically secured. This would be at variance with the common law doctrine generally supported by authority. There is no case that sustains, nor any recognized text book that gives color to such a view. Our general experience shows that much evidence has always been receivable although not obtained by conformity to the highest ethics. The history of criminal trials shows numerous cases of prosecutions of oath-bound conspiracies for murder, robbery, and other crimes, where officers of the law have disguised themselves and joined the organizations, taken the oaths and given themselves every appearance of active members engaged in the promotion of crime, for the purpose of securing evidence. Evidence secured by such means has always been received.
A standard which would forbid the reception of evidence if obtained by other than nice ethical conduct by government officials would make society suffer and give criminals greater immunity than has been known heretofore. In the absence of controlling legislation by Congress, those who realize the difficulties in bringing offenders to justice may well deem it wise that the exclusion of evidence should be confined to cases where rights under the Constitution would be violated by admitting it.
The statute of Washington, adopted in 1909, provides (Remington Compiled Statutes, 1922, § 2656-18) that:
"Every person . . . who shall intercept, read or in any manner interrupt or delay the sending of a message over any telegraph or telephone line . . . shall be guilty of a misdemeanor."
469*469 This statute does not declare that evidence obtained by such interception shall be inadmissible, and by the common law, already referred to, it would not be. People v. McDonald, 177 App. Div. (N.Y.) 806 . Whether the State of Washington may prosecute and punish federal officers violating this law and those whose messages were intercepted may sue them civilly is not before us. But clearly a statute, passed twenty years after the admission of the State into the Union can not affect the rules of evidence applicable in courts of the United States in criminal cases. Chief Justice Taney, in United States v. Reid, 12 How. 361, 363, construing the 34th section of the Judiciary Act, said:
"But it could not be supposed, without very plain words to show it, that Congress intended to give the states the power of prescribing the rules of evidence in trials for offenses against the United States. For this construction would place the criminal jurisprudence of one sovereignty under the control of another." See also Withaup v. United States, 127 Fed. 530, 534 .
The judgments of the Circuit Court of Appeals are affirmed. The mandates will go down forthwith under Rule 31.
Affirmed.
MR. JUSTICE HOLMES:
My brother BRANDEIS has given this case so exhaustive an examination that I desire to add but a few words. While I do not deny it, I am not prepared to say that the penumbra of the Fourth and Fifth Amendments covers the defendant, although I fully agree that Courts are apt to err by sticking too closely to the words of a law where those words import a policy that goes beyond them. Gooch v. Oregon Short Line R.R. Co., 258 U.S. 22, 24 . But I think, as MR. JUSTICE BRANDEIS says, that apart from the Constitution the Government ought not to use 470*470 evidence obtained and only obtainable by a criminal act. There is no body of precedents by which we are bound, and which confines us to logical deduction from established rules. Therefore we must consider the two objects of desire, both of which we cannot have, and make up our minds which to choose. It is desirable that criminals should be detected, and to that end that all available evidence should be used. It also is desirable that the Government should not itself foster and pay for other crimes, when they are the means by which the evidence is to be obtained. If it pays its officers for having got evidence by crime I do not see why it may not as well pay them for getting it in the same way, and I can attach no importance to protestations of disapproval if it knowingly accepts and pays and announces that in the future it will pay for the fruits. We have to chose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.
For those who agree with me, no distinction can be taken between the Government as prosecutor and the Government as judge. If the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to succeed. See Silverthorne Lumber Co. v. United States, 251 U.S. 385 . And if all that I have said so far be accepted it makes no difference that in this case wire tapping is made a crime by the law of the State, not by the law of the United States. It is true that a State cannot make rules of evidence for Courts of the United States, but the State has authority over the conduct in question, and I hardly think that the United States would appear to greater advantage when paying for an odious crime against State law than when inciting to the disregard of its own. I am aware of the often repeated statement that in a criminal proceeding the Court will not take notice of the manner in which papers offered in evidence have been 471*471 obtained. But that somewhat rudimentary mode of disposing of the question has been overthrown by Weeks v. United States, 232 U.S. 383 and the cases that have followed it. I have said that we are free to choose between two principles of policy. But if we are to confine ourselves to precedent and logic the reason for excluding evidence obtained by violating the Constitution seems to me logically to lead to excluding evidence obtained by a crime of the officers of the law.
MR. JUSTICE BRANDEIS, dissenting.
The defendants were convicted of conspiring to violate the National Prohibition Act. Before any of the persons now charged had been arrested or indicted, the telephones by means of which they habitually communicated with one another and with others had been tapped by federal officers. To this end, a lineman of long experience in wire-tapping was employed, on behalf of the Government and at its expense. He tapped eight telephones, some in the homes of the persons charged, some in their offices. Acting on behalf of the Government and in their official capacity, at least six other prohibition agents listened over the tapped wires and reported the messages taken. Their operations extended over a period of nearly five months. The type-written record of the notes of conversations overheard occupies 775 typewritten pages. By objections seasonably made and persistently renewed, the defendants objected to the admission of the evidence obtained by wire-tapping, on the ground that the Government's wire-tapping constituted an unreasonable search and seizure, in violation of the Fourth Amendment; and that the use as evidence of the conversations overheard compelled the defendants to be witnesses against themselves, in violation of the Fifth Amendment.
The Government makes no attempt to defend the methods employed by its officers. Indeed, it concedes 472*472 that if wire-tapping can be deemed a search and seizure within the Fourth Amendment, such wire-tapping as was practiced in the case at bar was an unreasonable search and seizure, and that the evidence thus obtained was inadmissible. But it relies on the language of the Amendment; and it claims that the protection given thereby cannot properly be held to include a telephone conversation.
"We must never forget," said Mr. Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 407, "that it is a constitution we are expounding." Since then, this Court has repeatedly sustained the exercise of power by Congress, under various clauses of that instrument, over objects of which the Fathers could not have dreamed. See Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1, 9 ; Northern Pacific Ry. Co. v. North Dakota, 250 U.S. 135 ; Dakota Central Telephone Co. v. South Dakota, 250 U.S. 163 ; Brooks v. United States, 267 U.S. 432 . We have likewise held that general limitations on the powers of Government, like those embodied in the due process clauses of the Fifth and Fourteenth Amendments, do not forbid the United States or the States from meeting modern conditions by regulations which "a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive." Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387 ; Buck v. Bell, 274 U.S. 200 . Clauses guaranteeing to the individual protection against specific abuses of power, must have a similar capacity of adaptation to a changing world. It was with reference to such a clause that this Court said in Weems v. United States, 217 U.S. 349, 373 : "Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions 473*473 and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall `designed to approach immortality as nearly as human institutions can approach it.' The future is their care and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality."
When the Fourth and Fifth Amendments were adopted, "the form that evil had theretofore taken," had been necessarily simple. Force and violence were then the only means known to man by which a Government could directly effect self-incrimination. It could compel the individual to testify — a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life — a seizure effected, if need be, by breaking and entry. Protection against such invasion of "the sanctities of a man's home and the privacies of life" was provided in the Fourth and Fifth Amendments by specific language. Boyd v. United States, 116 U.S. 616, 630 . But "time works changes, brings into existence new conditions and purposes." Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made 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.
474*474 Moreover, "in the application of a constitution, our contemplation cannot be only of what has been but of what may be." The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may some day 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. "That places the liberty of every man in the hands of every petty officer" was said by James Otis of much lesser intrusions than these. [1] To Lord Camden, a far slighter intrusions seemed "subversive of all the comforts of society." [2] Can it be that the Constitution affords no protection against such invasions of individual security?
A sufficient answer is found in Boyd v. United States, 116 U.S. 616, 627-630, a case that will be remembered as long as civil liberty lives in the United States. This Court there reviewed the history that lay behind the Fourth and Fifth Amendments. We said with reference to Lord Camden's judgment in Entick v. Carrington, 19 Howell's State Trials, 1030 : "The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case there before the court, with its adventitious circumstances; they apply to all invasions on the part of the Government and its employes of the sanctities of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, 475*475 personal liberty and private property, where that right has never been forfeited by his conviction of some public offence, — it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence of a crime or to forfeit his goods, is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other." [3]
In Ex parte Jackson, 96 U.S. 727, it was held that a sealed letter entrusted to the mail is protected by the Amendments. The mail is a public service furnished by the Government. The telephone is a public service furnished by its authority. There is, in essence, no difference between the sealed letter and the private telephone message. As Judge Rudkin said below: "True the one is visible, the other invisible; the one is tangible, the other intangible; the one is sealed and the other unsealed, but these are distinctions without a difference." The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations 476*476 between them upon any subject, and although proper, confidential and privileged, may be overheard. Moreover, the tapping of one man's telephone line involves the tapping of the telephone of every other person whom he may call or who may call him. As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire-tapping.
Time and again, this Court in giving effect to the principle underlying the Fourth Amendment, has refused to place an unduly literal construction upon it. This was notably illustrated in the Boyd case itself. Taking language in its ordinary meaning, there is no "search" or "seizure" when a defendant is required to produce a document in the orderly process of a court's procedure. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," would not be violated, under any ordinary construction of language, by compelling obedience to a subpoena. But this Court holds the evidence inadmissible simply because the information leading to the issue of the subpoena has been unlawfully secured. Silverthorne Lumber Co. v. United States, 251 U.S. 385 . Literally, there is no "search" or "seizure" when a friendly visitor abstracts papers from an office; yet we held in Gouled v. United States, 255 U.S. 298, that evidence so obtained could not be used. No court which looked at the words of the Amendment rather than at its underlying purpose would hold, as this Court did in Ex parte Jackson, 96 U.S. 727, 733, that its protection extended to letters in the mails. The provision against self-incrimination in the Fifth Amendment has been given an equally broad construction. The language is: "No person. . . shall be compelled in any criminal case to be a witness against himself." Yet we have held, not only that the 477*477 protection of the Amendment extends to a witness before a grand jury, although he has not been charged with crime, Counselman v. Hitchcock, 142 U.S. 547, 562, 586 . but that: "It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant." McCarthy v. Arndstein, 266 U.S. 34, 40 . The narrow language of the Amendment has been consistently construed in the light of its object, "to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard." Counselman v. Hitchcock, supra, p. 562 .
Decisions of this Court applying the principle of the Boyd case have settled these things. Unjustified search and seizure violates the Fourth Amendment, whatever the character of the paper; [4] whether the paper when taken by the federal officers was in the home, [5] in an office [6] or elsewhere; [7] whether the taking was effected by force, [8] by 478*478 fraud, [9] or in the orderly process of a court's procedure. [10] From these decisions, it follows necessarily that the Amendment is violated by the officer's reading the paper without a physical seizure, without his even touching it; and that use, in any criminal proceeding, of the contents of the paper so examined — as where they are testified to by a federal officer who thus saw the document or where, through knowledge so obtained, a copy has been procured elsewhere [11] — any such use constitutes a violation of the Fifth Amendment.
The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence 479*479 in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.
Applying to the Fourth and Fifth Amendments the established rule of construction, the defendants' objections to the evidence obtained by wire-tapping must, in my opinion, be sustained. It is, of course, immaterial where the physical connection with the telephone wires leading into the defendants' premises was made. And it is also immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. [12]
Independently of the constitutional question, I am of opinion that the judgment should be reversed. By the laws of Washington, wire-tapping is a crime. [13] Pierce's 480*480 Code, 1921, § 8976(18). To prove its case, the Government was obliged to lay bare the crimes committed by its officers on its behalf. A federal court should not permit such a prosecution to continue. Compare Harkin v. Brundage, 276 U.S. 36, id. 604.
481*481 The situation in the case at bar differs widely from that presented in Burdeau v. McDowell, 256 U.S. 465 . There, only a single lot of papers was involved. They had been obtained by a private detective while acting on behalf of a private party; without the knowledge of any federal official; long before anyone had thought of instituting a 482*482 federal prosecution. Here, the evidence obtained by crime was obtained at the Government's expense, by its officers, while acting on its behalf; the officers who committed these crimes are the same officers who were charged with the enforcement of the Prohibition Act; the crimes of these officers were committed for the purpose of securing evidence with which to obtain an indictment and to secure a conviction. The evidence so obtained constitutes the warp and woof of the Government's case. The aggregate of the Government evidence occupies 306 pages of the printed record. More than 210 of them are filled by recitals of the details of the wire-tapping and of facts ascertained thereby. [14] There is literally no other evidence of guilt on the part of some of the defendants except that illegally obtained by these officers. As to nearly all the defendants (except those who admitted guilt), the evidence relied upon to secure a conviction consisted mainly of that which these officers had so obtained by violating the state law.
As Judge Rudkin said below: "Here we are concerned with neither eavesdroppers nor thieves. Nor are we concerned with the acts of private individuals. . . . We are concerned only with the acts of federal agents whose powers are limited and controlled by the Constitution of the United States." The Eighteenth Amendment has not in terms empowered Congress to authorize anyone to violate the criminal laws of a State. And Congress has never purported to do so. Compare Maryland v. Soper, 270 U.S. 9 . The terms of appointment of federal prohibition agents do not purport to confer upon them authority to violate any criminal law. Their superior officer, the Secretary of the Treasury, has not instructed them to commit 483*483 crime on behalf of the United States. It may be assumed that the Attorney General of the United States did not give any such instruction. [15]
When these unlawful acts were committed, they were crimes only of the officers individually. The Government was innocent, in legal contemplation; for no federal official is authorized to commit a crime on its behalf. When the Government, having full knowledge, sought, through the Department of Justice, to avail itself of the fruits of these acts in order to accomplish its own ends, it assumed moral responsibility for the officers' crimes. Compare The Paquete Habana, 189 U.S. 453, 465; O'Reilly deCamara v. Brooke, 209 U.S. 45, 52 ; Dodge v. United States, 272 U.S. 530, 532 ; Gambino v. United States, 275 U.S. 310 . And if this Court should permit the Government, by means of its officers' crimes, to effect its purpose of punishing the defendants, there would seem to be present all the elements of a ratification. If so, the Government itself would become a lawbreaker.
Will this Court by sustaining the judgment below sanction such conduct on the part of the Executive? The governing principle has long been settled. It is that a court will not redress a wrong when he who invokes its aid has unclean hands. [16] The maxim of unclean hands comes 484*484 from courts of equity. [17] But the principle prevails also in courts of law. Its common application is in civil actions between private parties. Where the Government is the actor, the reasons for applying it are even more persuasive. Where the remedies invoked are those of the criminal law, the reasons are compelling. [18]
The door of a court is not barred because the plaintiff has committed a crime. The confirmed criminal is as much entitled to redress as his most virtuous fellow citizen; no record of crime, however long, makes one an outlaw. The court's aid is denied only when he who seeks it has violated the law in connection with the very transaction as to which he seeks legal redress. [19] Then aid is denied despite the defendant's wrong. It is denied in order to maintain respect for law; in order is to promote confidence in the administration of justice; in order to preserve the judicial process from contamination. The rule is one, not of action, but of inaction. It is sometimes 485*485 spoken of as a rule of substantive law. But it extends to matters of procedure as well. [20] A defense may be waived. It is waived when not pleaded. But the objection that the plaintiff comes with unclean hands will be taken by the court itself. [21] It will be taken despite the wish to the contrary of all the parties to the litigation. The court protects itself.
Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. 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.
MR. JUSTICE BUTLER, dissenting.
I sincerely regret that I cannot support the opinion and judgments of the Court in these cases.
486*486 The order allowing the writs of certiorari operated to limit arguments of counsel to the constitutional question. I do not participate in the controversy that has arisen here as to whether the evidence was inadmissible because the mode of obtaining it was unethical and a misdemeanor under state law. I prefer to say nothing concerning those questions because they are not within the jurisdiction taken by the order.
The Court is required to construe the provision of the Fourth Amendment that declares: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated." The Fifth Amendment prevents the use of evidence obtained through searches and seizures in violation of the rights of the accused protected by the Fourth Amendment.
The single question for consideration is this: May the Government, consistently with that clause, have its officers whenever they see fit, tap wires, listen to, take down and report, the private messages and conversations transmitted by telephones?
The United States maintains that "The `wire tapping' operations of the federal prohibition agents were not a `search and seizure' in violation of the security of the `persons, houses, papers and effects' of the petitioners in the constitutional sense or within the intendment of the Fourth Amendment." The Court, adhering to and reiterating the principles laid down and applied in prior decisions [*] construing the search and seizure clause, in substance adopts the contention of the Government.
The question at issue depends upon a just appreciation of the facts.
487*487 Telephones are used generally for transmission of messages concerning official, social, business and personal affairs including communications that are private and privileged — those between physician and patient, lawyer and client, parent and child, husband and wife. The contracts between telephone companies and users contemplate the private use of the facilities employed in the service. The communications belong to the parties between whom they pass. During their transmission the exclusive use of the wire belongs to the persons served by it. Wire tapping involves interference with the wire while being used. Tapping the wires and listening in by the officers literally constituted a search for evidence. As the communications passed, they were heard and taken down.
In Boyd v. United States, 116 U.S. 616, there was no "search or seizure" within the literal or ordinary meaning of the words, nor was Boyd — if these constitutional provisions were read strictly according to the letter — compelled in a "criminal case" to be a "witness" against himself. The statute, there held unconstitutional because repugnant to the search and seizure clause, merely authorized judgment for sums claimed by the Government on account of revenue if the defendant failed to produce his books, invoices and papers. The principle of that case has been followed, developed and applied in this and many other courts. And it is in harmony with the rule of liberal construction that always has been applied to provisions of the Constitution safeguarding personal rights ( Byars v. United States, 273 U.S. 28, 32 ), as well as to those granting governmental powers. McCulloch v. Maryland, 4 Wheat. 316, 404, 406, 407, 421 . Marbury v. Madison, 1 Cranch 137, 153, 176 . Cohens v. Virginia, 6 Wheat. 264 . Myers v. United States, 272 U.S. 52 .
This Court has always construed the Constitution in the light of the principles upon which it was founded. 488*488 The direct operation or literal meaning of the words used do not measure the purpose or scope of its provisions. Under the principles established and applied by this Court, the Fourth Amendment safeguards against all evils that are like and equivalent to those embraced within the ordinary meaning of its words. That construction is consonant with sound reason and in full accord with the course of decisions since McCulloch v. Maryland . That is the principle directly applied in the Boyd case.
When the facts in these cases are truly estimated, a fair application of that principle decides the constitutional question in favor of the petitioners. With great deference, I think they should be given a new trial.
MR. JUSTICE STONE, dissenting.
I concur in the opinions of MR. JUSTICE HOLMES and MR. JUSTICE BRANDEIS. I agree also with that of MR. JUSTICE BUTLER so far as it deals with the merits. The effect of the order granting certiorari was to limit the argument to a single question, but I do not understand that it restrains the Court from a consideration of any question which we find to be presented by the record, for, under Jud. Code, § 240(a), this Court determines a case here on certiorari "with the same power and authority, and with like effect, as if the cause had been brought [here] by unrestricted writ of error or appeal."
[1] Otis' Argument against Writs of Assistance. See Tudor, James Otis, p. 66; John Adams, Works, Vol. II, p. 524; Minot, Continuation of the History of Massachusetts Bay, Vol. II, p. 95.
[2] Entick v. Carrington, 19 Howell's State Trials, 1030, 1066 .
[3] In Interstate Commerce Commission v. Brimson, 154 U.S. 447, 479, the statement made in the Boyd case was repeated; and the Court quoted the statement of Mr. Justice Field in In re Pacific Railway Commission, 32 Fed. 241, 250 : "Of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers, from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value." The Boyd case has been recently reaffirmed in Silverthorne Lumber Co. v. United States, 251 U.S. 385, in Gouled v. United States, 255 U.S. 298, and in Byars v. United States, 273 U.S. 28 .
[4] Gouled v. United States, 255 U.S. 298 .
[5] Weeks v. United States, 232 U.S. 383 ; Amos v. United States, 255 U.S. 313 ; Agnello v. United States, 269 U.S. 20 ; Byars v. United States, 273 U.S. 28 .
[6] Boyd v. United States, 116 U.S. 616 ; Hale v. Henkel, 201 U.S. 43, 70 ; Silverthorne Lumber Co. v. United States, 251 U.S. 385 ; Gouled v. United States, 255 U.S. 298 ; Marron v. United States, 275 U.S. 192 .
[7] Ex parte Jackson, 96 U.S. 727, 733 ; Carroll v. United States, 267 U.S. 132, 156 ; Gambino v. United States, 275 U.S. 310 .
[8] Weeks v. United States, 232 U.S. 383 ; Silverthorne Lumber Co. v. United States, 251 U.S. 385 ; Amos v. United States, 255 U.S. 313 ; Carroll v. United States, 267 U.S. 132, 156 ; Agnello v. United States, 269 U.S. 20 ; Gambino v. United States, 275 U.S. 310 .
[9] Gouled v. United States, 255 U.S. 298 .
[10] Boyd v. United States, 116 U.S. 616 ; Hale v. Henkel, 201 U.S. 43, 70 . See Gouled v. United States, 255 U.S. 298 ; Byars v. United States, 273 U.S. 28 ; Marron v. United States, 275 U.S. 192 .
[11] Silverthorne Lumber Co. v. United States, 251 U.S. 385 . Compare Gouled v. United States, 255 U.S. 298, 307 . In Stroud v. United States, 251 U.S. 15, and Hester v. United States, 265 U.S. 57, the letter and articles admitted were not obtained by unlawful search and seizure. They were voluntary dilosures by the defendant. Compare Smith v. United States, 2 F. (2d) 715 ; United States v. Lee, 274 U.S. 559 .
[12] The point is thus stated by counsel for the telephone companies, who have filed a brief as amici curiae: "Criminals will not escape detection and conviction merely because evidence obtained by tapping wires of a public telephone system is inadmissible, if it should be so held; but, in any event, it is better that a few criminals escape than that the privacies of life of all the people be exposed to the agents of the government, who will act at their own discretion, the honest and the dishonest, unauthorized and unrestrained by the courts. Legislation making wire tapping a crime will not suffice if the courts nevertheless hold the evidence to be lawful."
[13] In the following states it is a criminal offense to intercept a message sent by telegraph and/or telephone: Alabama, Code, 1923, § 5256; Arizona, Revised Statutes, 1913, Penal Code, § 692; Arkansas, Crawford & Moses Digest, 1921, § 10246; California, Deering's Penal Code, 1927, § 640; Colorado, Compiled Laws, 1921, § 6969; Connecticut, General Statutes, 1918, § 6292; Idaho, Compiled Statutes, 1919, §§ 8574, 8586; Illinois, Revised Statutes, 1927, c. 134, § 21; Iowa, Code, 1927, § 13121; Kansas, Revised Statutes, 1923, c. 17, § 1908; Michigan, Compiled Laws, 1915, § 15403; Montana, Penal Code, 1921, § 11518; Nebraska, Compiled Statutes, 1922, § 7115; Nevada, Revised Laws, 1912, §§ 4608, 6572(18); New York, Consolidated Laws, c. 40, § 1423(6); North Dakota, Compiled Laws, 1913, § 10231; Ohio, Page's General Code, 1926, § 13402; Oklahoma, Session Laws, 1923, c. 46; Oregon, Olson's Laws, 1920, § 2265; South Dakota, Revised Code, 1919, § 4312; Tennessee, Shannon's Code, 1919, §§ 1839, 1840; Utah, Compiled Laws, 1917, § 8433; Virginia, Code, 1924, § 4477(2), (3); Washington, Pierce's Code, 1921, § 8976(18); Wisconsin, Statutes, 1927, § 348.37; Wyoming, Compiled Statutes, 1920, § 7148. Compare State v. Behringer, 19 Ariz. 502 ; State v. Nordskog, 76 Wash. 472 .
In the following states it is a criminal offense for a company engaged in the transmission of messages by telegraph and/or telephone, or its employees, or, in many instances, persons conniving with them, to disclose or to assist in the disclosure of any message: Alabama, Code, 1923, §§ 5543, 5545; Arizona, Revised Statutes, 1913, Penal Code, §§ 621, 623, 691; Arkansas, Crawford & Moses Digest, 1921, § 10250; California, Deering's Penal Code, 1927, §§ 619, 621, 639, 641; Colorado, Compiled Laws, 1921, §§ 6966, 6968, 6970; Connecticut, General Statutes, 1918, § 6292; Florida, Revised General Statutes, 1920, §§ 5754, 5755; Idaho, Compiled Statutes, 1919, §§ 8568, 8570; Illinois, Revised Statutes, 1927, c. 134, §§ 7, 7a; Indiana, Burns' Revised Statutes, 1926, § 2862; Iowa, Code, 1924, § 8305; Louisiana, Acts, 1918, c. 134, p. 228; Maine, Revised Statutes, 1916, c. 60, § 24; Maryland, Bagby's Code, 1926, § 489; Michigan, Compiled Statutes, 1915, § 15104; Minnesota, General Statutes, 1923, §§ 10423, 10424; Mississippi, Hemingway's Code, 1927, § 1174; Missouri, Revised Statutes, 1919, § 3605; Montana, Penal Code, 1921, § 11494; Nebraska, Compiled Statutes, 1922, § 7088; Nevada, Revised Laws, 1912, §§ 4603, 4605, 4609, 4631; New Jersey, Compiled Statutes, 1910, p. 5319; New York, Consolidated Laws, c. 40, §§ 552, 553; North Carolina, Consolidated Statutes, 1919, §§ 4497, 4498, 4499; North Dakota, Compiled Laws, 1913, § 10078; Ohio, Page's General Code, 1926, § 13388, 13419; Oklahoma, Session Laws, 1923, c. 46; Oregon, Olson's Laws, 1920, §§ 2260, 2266; Pennsylvania, Statutes, 1920, §§ 6306, 6308, 6309; Rhode Island, General Laws, 1923, § 6104; South Dakota, Revised Code, 1919, §§ 4346, 9801; Tennessee, Shannon's Code, 1919, §§ 1837, 1838; Utah, Compiled Laws, 1917, §§ 8403, 8405, 8434; Washington, Pierce's Code, 1921, §§ 8982, 8983, Wisconsin, Statutes, 1927, § 348.36.
The Alaskan Penal Code, Act of March 3, 1899, c. 429, 30 Stat. 1253, 1278, provides that "if any officer, agent, operator, clerk, or employee of any telegraph company, or any other person, shall wilfully divulge to any other person than the party from whom the same was received, or to whom the same was addressed, or his agent or attorney, any message received or sent, or intended to be sent, over any telegraph line, or the contents, substance, purport, effect, or meaning of such message, or any part thereof,. . . the person so offending shall be deemed guilty of a misdemeanor, and shall be punished by a fine not to exceed one thousand dollars or imprisonment not to exceed one year, or by both such fine and imprisonment, in the discretion of the court."
The Act of October 29, 1918, c. 197, 40 Stat. 1017, provided: "That whoever during the period of governmental operation of the telephone and telegraph systems of the United States . . . shall, without authority and without the knowledge and consent of the other users thereof, except as may be necessary for operation of the service, tap any telegraph or telephone line, or wilfully interfere with the operation of such telephone and telegraph systems or with the transmission of any telephone or telegraph message, or with the delivery of any such message, or whoever being employed in any such telephone or telegraph service shall divulge the contents of any such telephone or telegraph message to any person not duly authorized to receive the same, shall be fined not exceeding $1,000 or imprisoned for not more than one year, or both."
The Radio Act, February 23, 1927, c. 169, § 27, 44 Stat. 1162, 1172, provides that "no person not being authorized by the sender shall intercept any message and divulge or publish the contents, substance, purport, effect, or meaning of such intercepted message to any person."
[14] The above figures relate to Case No. 493. In Nos. 532-533, the Government evidence fills 278 pages, of which 140 are recitals of the evidence obtained by wire-tapping.
[15] According to the Government's brief, p. 41, "The Prohibition Unit of the Treasury disclaims it [wire-tapping] and the Department of Justice has frowned on it." See also "Prohibition Enforcement," 69th Congress, 2d Session, Senate Doc. No. 198, pp. IV, V, 13, 15, referred to Committee, January 25, 1927; also Same, Part 2.
[16] See Hannay v. Eve, 3 Cranch, 242, 247 ; Bank of the United States v. Owens, 2 Pet. 527, 538 ; Bartle v. Coleman, 4 Pet. 184, 188 ; Kennett v. Chambers, 14 How. 38, 52 ; Marshall v. Baltimore & Ohio R.R. Co., 16 How. 314, 334 ; Tool Co. v. Norris, 2 Wall 45, 54 ; The Ouachita Cotton, 6 Wall. 521, 532; Coppell v. Hall, 7 Wall. 542 ; Forsyth v. Woods, 11 Wall. 484, 486 ; Hanauer v. Doane, 12 Wall. 342, 349 ; Trist v. Child, 21 Wall. 441, 448 ; Meguire v. Corwine, 101 U.S. 108, 111 ; Oscanyan v. Arms Co., 103 U.S. 261 ; Irwin v. Williar, 110 U.S. 499, 510 ; Woodstock Iron Co. v. Richmond & Danville Extension Co., 129 U.S. 643 ; Gibbs v. Consolidated Gas Co., 130 U.S. 396, 411 ; Embrey v. Jemison, 131 U.S. 336, 348 ; West v. Camden, 135 U.S. 507, 521 ; McMullen v. Hoffman, 174 U.S. 639, 654 ; Hazelton v. Sheckells, 202 U.S. 71 ; Crocker v. United States, 240 U.S. 74, 78 . Compare Holman v. Johnson, 1 Cowp. 341 .
[17] See Creath's Administrator v. Sims, 5 How. 192, 204 ; Kennett v. Chambers, 14 How. 38, 49 ; Randall v. Howard, 2 Black, 585, 586 ; Wheeler v. Sage, 1 Wall. 518, 530 ; Dent v. Ferguson, 132 U.S. 50, 64 ; Pope Manufacturing Co. v. Gormully, 144 U.S. 224, 236 ; Miller v. Ammon, 145 U.S. 421, 425 ; Hazelton v. Sheckells, 202 U.S. 71, 79 . Compare International News Service v. Associated Press, 248 U.S. 215, 245 .
[18] Compare State v. Simmons, 39 Kan. 262, 264-265 ; State v. Miller, 44 Mo. App. 159, 163-164 ; In re Robinson, 29 Neb. 135 ; Harris v. State, 15 Tex. App. 629, 634-635, 639 .
[19] See Armstrong v. Toler, 11 Wheat. 258 ; Brooks v. Martin, 2 Wall. 70 ; Planters' Bank v. Union Bank, 16 Wall. 483, 499-500 ; Houston & Texas Central R.R. Co. v. Texas, 177 U.S. 66, 99 ; Bothwell v. Buckbee, Mears Co., 275 U.S. 274 .
[20] See Lutton v. Benin, 11 Mod. 50 ; Barlow v. Hall, 2 Anst. 461 ; Wells v. Gurney, 8 Barn. & Cress. 769 ; Ilsley v. Nichols, 12 Pick. 270 ; Carpenter v. Spooner, 2 Sandf. 717 ; Metcalf v. Clark, 41 Barb. 45 ; Williams ads. Reed, 29 N.J.L. 385; Hill v. Goodrich, 32 Conn. 588 ; Townsend v. Smith, 47 Wis. 623 ; Blandin v. Ostrander, 239 Fed. 700 ; Harkin v. Brundage, 276 U.S. 36, id., 604.
[21] Coppell v. Hall, 7 Wall. 542, 558 ; Oscanyan v. Arms Co., 103 U.S. 261, 267 ; Higgins v. McCrea, 116 U.S. 671, 685 . Compare Evans v. Richardson, 3 Mer. 469 ; Norman v. Cole, 3 Esp. 253 ; Northwestern Salt Co. v. Electrolytic Alkali Co., [1913] 3 K.B. 422 .
[*] Ex parte Jackson, 96 U.S. 727 . Boyd v. United States, 116 U.S. 616 . Weeks v. United States, 232 U.S. 383 . Silverthorne Lumber Co. v. United States, 251 U.S. 385 . Gouled v. United States, 255 U.S. 298 . Amos v. United States, 255 U.S. 313 .
__MACOSX/Freedom, Privacy and Tech./._Olmstead%20v.%20U.S..doc
Freedom, Privacy and Tech./Paternalism%20Dworkin%20monist_1972.pdf
PATERNALISM
Neither one person, nor any number of persons, is warranted in saying to another human creature of ripe years, that he shall not do with his life for his own benefit what he chooses to do with it. Mill
I do not want to go along with a volunteer basis. I think a fellow should be compelled to become better and not let him use his dis cretion whether he wants to get smarter, more healthy or more honest. General Hershey
I take as my starting point the "one very simple principle" pro claimed by Mill in On Liberty ... "That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be right fully exercised over any member of a civilized community, against his will, is to prevent harm to others. He cannot rightfully be com pelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right." 1
This principle is neither "one" nor "very simple." It is at least two principles; one asserting that self-protection or the prevention of harm to others is sometimes a sufficient warrant and the other claiming that the individual's own good is never a sufficient warrant for the exercise of compulsion either by the society as a whole or by its individual members. I assume that no one with the possible ex ception of extreme pacifists or anarchists questions the correctness of the first half of the principle. This essay is an examination of the negative claim embodied in Mill's principle-the objection to pa ternalistic interferences with a man's liberty.
1. J. S. Mill, Utilitarianism and On Liberty (Fontana Library Edition, ed. by Mary Warnock, London, 1962), p. 135. All further quotes from Mill are from this edition unless otherwise noted.
PATERNALISM 65
I
By paternalism I shall understand roughly the interference with a person's liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced. One is always well-advised to illustrate one's definitions by examples but it is not easy to find "pure" examples of paternalistic interferences. For almost any piece of legislation is justified by several different kinds of reasons and even if historically a piece of legislation can be shown to have been introduced for, purely paternalistic motives, it may be that advocates of the legisla tion with an anti-paternalistic outlook can find sufficient reasons justifying the legislation without appealing to the reasons which were originally adduced to support it. Thus, for example, it may be that the original legislation requiring motorcyclists to wear safety helmets was introduced for purely paternalistic reasons. But the Rhode Island Supreme Court recently upheld such legislation on the grounds that it was "not persuaded that the legislature is powerless to prohibit individuals from pursuing a course of conduct which could conceivably result in their becoming public charges," thus clearly introducing reasons of a quite different kind. Now I regard this decision as being based on reasoning of a very dubious nature but it illustrates the kind of problem one has in finding examples. The following is a list of the kinds of interferences I have in mind as being paternalistic.
II
1. Laws requiring motorcyclists to wear safety helmets when oper ating their machines.
2. Laws forbidding persons from swimming at a public beach when lifeguards are not on duty.
3. Laws making suicide a criminal offense. 4. Laws making it illegal for women and children to work at
certain types of jobs. 5. Laws regulating certain kinds of sexual conduct, e.g. homo
sexuality among consenting adults in private. 6. Laws regulating the use of certain drugs which may have harm
ful consequences to the user but do not lead to anti-social con duct.
66 GERALD DWORKIN
7. Laws requiring a license to engage in certain professions with those not receiving a license subject to fine or jail sentence if they do engage in the practice.
8. Laws compelling people to spend a specified fraction of their income on the purchase of retirement annuities. (Social Secur- ity)
9. Laws forbidding various forms of gambling (often justified on the grounds that the poor are more likely to throwaway their money on such activities than the rich who can afford to) .
10. Laws regulating the maximum rates of interest for loans. 11. Laws against duelling.
In addition to laws which attach criminal or civil penalties to certain kinds of action there are laws, rules, regulations, decrees, which make it either difficult or impossible for people to carry out their plans and which are also justified on paternalistic grounds. Examples of this are:
1. Laws regulating the types of contracts which will be upheld as valid by the courts, e.g. (an example of Mill's to which I shall return) no man may make a valid contract for perpetual involuntary servitude.
2. Not allowing as a defense to a charge of murder or assault the consent of the victim.
3. Requiring members of certain religious sects to have compulsory blood transfusions. This is made possible by not allowing the patient to have recourse to civil suits for assault and battery and by means of injunctions.
4. Civil commitment procedures when these are specifically justi fied on the basis of preventing the person being committed from harming himself. (The D.C. Hospitalization of the Mentally III Act provides for involuntary hospitalization of a person who "is mentally ill, and because of that illness, is likely to injure himself or others if allowed to remain at liberty." The term injure in this context applies to unintentional as well as inten tional injuries.)
5. Putting fluorides in the community water supply.
All of my examples are of existing restrictions on the liberty of individuals. Obviously one can think of interferences which have not
PATERNALISM 67
yet been imposed. Thus one might ban the sale of cigarettes, or require that people wear safety-belts in automobiles (as opposed to merely having them installed) enforcing this by not allowing motor ists to sue for injuries even when caused by other drivers if the motorist was not wearing a seat-belt at the time of the accident.
I shall not be concerned with activities which though defended on paternalistic grounds are not interferences with the liberty of persons, e.g. the giving of subsidies in kind rather than in cash on the grounds that the recipients would not spend the money on the goods which they really need, or not including a $1000 deductible provision in a basic protection automobile insurance plan on the ground that the peo ple who would elect it could least afford it. Nor shall I be concerned with measures such as "truth-in-advertising" acts and the Pure Food and Drug legislation which are often attacked as paternalistic but which should not be considered so. In these cases all that is provided-it is true by the use of compulsion-is information which it is presumed that rational persons are interested in having in order to make wise decisions. There is no interference with the liberty of the consumer unless one wants to stretch a point beyond good sense and say that his liberty to apply for a loan without knowing the true rate of interest is diminished. It is true that sometimes there is sentiment for going further than providing information, for example when laws against usurious interest are passed preventing those who might wish to contract loans at high rates of interest from doing so, and these measures may correctly be considered paternalistic.
III Bearing these examples in mind let me return to a characterization
of paternalism. I said earlier that I meant by the term, roughly, interference with a person's liberty for his own good. But as some of the examples show the class of persons whose good is involved is not always identical with the class of person's whose freedom is restricted. Thus in the case of professional licensing it is the prac titioner who is directly interfered with and it is the would-be patient whose interests are presumably being served. Not allowing the consent of the victim to be a defense to certain types of crime primarily affects the would-be aggressor but it is the interests of the willing victim that we are trying to protect. Sometimes a person may fall into both classes as would be the case if we banned the manu-
68 GERALD DWORKIN
facture and sale of cigarettes and a given manufacturer happened to be a smoker as well.
Thus we may first divide paternalistic interferences into "pure" and "impure" cases. In "pure" paternalism the class of persons whose freedom is restricted is identical with the class of persons whose benefit is intended to be promoted by such restrictions. Ex amples: the making of suicide a crime, requiring passengers in auto mobiles to wear seat-belts, requiring a Christian Scientist to receive a blood transfusion. In the case of "impure" paternalism in trying to protect the welfare of a class of persons we find that the only way to do so will involve restricting the freedom of other persons besides those who are benefitted. Now it might be thought that there are no cases of "impure" paternalism since any such case could always be justified on non-paternalistic grounds, i.e. in terms of preventing harms to others. Thus we might ban cigarette manufacturers from continuing to manufacture their product on the grounds that we are preventing them from causing illness to others in the same way that we prevent other manufacturers from releasing pollutants into the atmosphere, thereby causing danger to the members of the com munity. The difference is, however, that in the former but not the lat ter case the harm is of such a nature that it could be avoided by those individuals affected if they so chose. The incurring of the harm re quires, so to speak, the active co-operation of the victim. It would be mistaken theoretically and hypocritical in practice to assert that our interference in such cases is just like our interference in standard cases of protecting others from harm. At the very least someone inter fered with in this way can reply that no one is complaining about his activities. It may be that impure paternalism requires arguments or reasons of a stronger kind in order to be justified since there are persons who are losing a portion of their liberty and they do not even have the solace of having it be done "in their own interest." Of course in some sense, if paternalistic justifications are ever correct then we are protecting others, we are preventing some from injuring others, but it is important to see the differences between this and the standard case.
Paternalism then will always involve limitations on the liberty of some individuals in their own interest but it may also extend to interferences with the liberty of parties whose interests are not in question.
P ATERN ALISM 69
IV
Finally, by way of some more preliminary analysis, I want to distinguish paternalistic interferences with liberty from a related type with which it is often confused. Consider, for example, legisla tion which forbids employees to work more than, say, 40 hours per week. It is sometimes argued that such legislation is paternalistic for if employees desired such a restriction on their hours of work they could agree among themselves to impose it voluntarily. But because they do not the society imposes its own conception of their best interests upon them by the use of coercion. Hence this is paternalism.
Now it may be that some legislation of this nature is, in fact, paternalistically motivated. I am not denying that. All I want to point out is that there is another possible way of justifying such measures which is not paternalistic in nature. It is not paternalistic because as Mill puts it in a similar context such measures are "required not to overrule the judgment of individuals respecting their own interest, but to give effect to that judgment: they being unable to give effect to it except by concert, which concert again cannot be effectual unless it receives validity and sanction from the law." 2
The line of reasoning here is a familiar one first found in Hobbes and developed with great sophistication by contemporary economists in the last decade or so. There are restrictions which are in the interests of a class of persons taken collectively but are such that the immediate interest of each individual is furthered by his violating the rule when others adhere to it. In such cases the individuals involved may need the use of compulsion to give effect to their collective judgment of their own interest by guaranteeing each individual compliance by the others. In these cases compulsion is not used to achieve some bene fit which is not recognized to be a benefit by those concerned, but rather because it is the only feasible means of achieving some benefit which is recognized as such by all concerned. This way of viewing matters provides us with another characterization of paternalism in general. Paternalism might be thought of as the use of coercion to achieve a good which is not recognized as such by those persons for whom the good is intended. Again while this formulation captures the heart of the matter-it is surely what Mill is objecting to in
2. J. S. Mill, Principles of Political Economy (New York: P. F. Collier and Sons, 1900), p. 442.
70 GERALD DWORKIN
On Liberty-the matter is not always quite like that. For example when we force motorcyclists to wear helmets we are trying to promote a good-the protection of the person from injury-which is surely recognized by most of the individuals concerned. It is not that a cyclist doesn't value his bodily integrity; rather, as a supporter of such legislation would put it, he either places, perhaps irrationally, another value or good (freedom from wearing a helmet) above that of physical well-being or, perhaps, while recognizing the danger in the abstract, he either does not fully appreciate it or he under estimates the likelihood of its occurring. But now we are approaching the question of possible justifications of paternalistic measures and the rest of this essay will be devoted to that question.
V
I shall begin for dialectical purposes by discussing Mill's objec tions to paternalism and then go on to discuss more positive pro posals.
An initial feature that strikes one is the absolute nature of Mill's prohibitions against paternalism. It is so unlike the carefully qualified admonitions of Mill and his fellow Utilitarians on other moral issues. He speaks of self-protection as the sole end warranting coercion, of the individuals own goals as never being a sufficient warrant. Contrast this with his discussion of the prohibition against lying in Uti!.
Yet that even this, rule, sacred as it is, admits of possible exception, is acknowledged by all moralists, the chief of which is where the with-holding of some fact ... would save an individual ... from great and unmerited evil.s
The same tentativeness is present when he deals with justice.
It is confessedly unjust to break faith with anyone: to violate an engagement, either express or implied, or disappoint expectations raised by our own conduct, at least if we have raised these expecta tions knowingly and voluntarily. Like all the other obligations of justice already spoken of, this one is not regarded as absolute, but as capable of being overruled by a stronger obligation of justice on the other side.4
This anomaly calls for some explanation. The structure of Mill's argument is as follows:
3. Mill, Utilitarianism and On Liberty, p. 174. 4. Ibid., p. 299.
PATERNALISM 71
( 1) Since restraint is an evil the burden of proof is on those who propose such restraint.
(2) Since the conduct which is being considered is purely self regarding, the normal appeal to the protection of the interests of others is not available.
( 3) Therefore we have to consider whether reasons involving refer ence to the individuals own good, happiness, welfare, or in terests are sufficient to overcome the burden of justification.
( 4) We either cannot advance the interests of the individual by compulsion, or the attempt to do so involves evil which out weigh the good done.
(5) Hence the promotion of the individual's own interests does not provide a sufficient warrant for the use of compulsion.
Clearly the operative premise here is (4) and it is bolstered by claims about the status of the individual as judge and appraiser of his welfare, interests, needs, etc.
With respect to his own feelings and circumstances, the most ordi nary man or woman has means of knowledge immeasurably sur passing those that can be possessed by anyone else.5
He is the man most interested in his own well-being: the interest which any other person, except in cases of strong personal attach ment, can have in it, is trifling, compared to that which he himself has.6
These claims are used to support the following generalizations con cerning the utility of compulsion for paternalistic purposes.
The interferences of society to overrule his judgment and purposes in what only regards himself must be grounded on general pre sumptions; which may be altogether wrong, and even if right, are as likely as not to be misapplied to individual cases.7
But the strongest of all the arguments against the interference of the public with purely personal conduct is that when it does inter fere, the odds are that it interferes wrongly and in the wrong place.S
5. Ibid., p. 207.
6. Ibid., p. 206.
7. Ibid., p. 207.
8. Ibid., p. 214.
72 GERALD DWORKIN
All errors which the individual is likely to commit against advice and warning are far outweighed by the evil of allowing others to constrain him to what they deem his good.9
Performing the utilitarian calculation by balancing the advantages and disadvantages we find that:
Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each other to live as seems good to the rest.10
From which follows the operative premise (4).
This classical case of a utilitarian argument with all the premises spelled out is not the only line of reasoning present in Mill's dis cussion. There are asides, and more than asides, which look quite different and I shall deal with them later. But this is clearly the main channel of Mill's thought and it is one which has been subjected to vigorous attack from the moment it appeared-most often by fellow Utilitarians. The link that they have usually seized on is, as Fitzjames Stephen put it, the absence of proof that the "mass of adults are so well acquainted with their own interests and so much disposed to pursue them that no compulsion or restraint put upon them by any others for the purpose of promoting their interest can really promote them." 11 Even so sympathetic a critic as Hart is forced to the con clusion that:
In Chapter 5 of his essay Mill carried his protests against paternal ism to lengths that may now appear to us as fantastic .... No doubt if we no longer sympathise with this criticism this is due, in part, to a general decline in the belief that individuals know their own interest best.12
Mill endows the average individual with "too much of the psy chology of a middle-aged man whose desires are relatively fixed, not liable to be artificially stimulated by external influences; who
9. Ibid., p. 207.
10. Ibid., p. 138. 11. ]. F. Stephens, Liberty, Equality, Fraternity (New York: Henry Holt
& Co., n.d.), p. 24. 12. H. L. A. Hart, Law, Liberty and Morality (Stanford: Stanford Uni
versity Press, 1963), p. 32.
PATERNALISM
knows what he wants and what gives him satisfaction of happiness; and who pursues these things when he can."13
73
Now it is interesting to note that Mill himself was aware of some of the limitations on the doctrine that the individual is the best judge of his own interests. In his discussion of government intervention in general (even where the intervention does not interfere with liberty but provides alternative institutions to those of the market) after making claims which are parallel to those just discussed, e.g.
People understand their own business and their own interests better, and care for them more, than the government does, or can be ex pected to do,14
He goes on to an intelligent discussion of the "very large and con spicuous exceptions" to the maxim that:
Most persons take a juster and more intelligent view of their own interest, and of the means of promoting it than can either be pre scribed to them by a general enactment of the legislature, or pointed out in the particular case by a public functionary.lIi
Thus there are things
of which the utility does not consist in ministering to inclinations, nor in serving the daily uses of life, and the want of which is least felt where the need is greatest. This is peculiarly true of those things which are chiefly useful as tending to raise the character of human beings. The uncultivated cannot be competent judges of cultivation. Those who most need to be made wiser and better, usually desire it least, and, if they desired it, would be incapable of finding the way to it by their own lights.
. . . . A second exception to the doctrine that individuals are the best judges of their own interest, is when an individual attempts to decide irrevocably now what will be best for his interest at some future and distant time. The presumption in favor of individual judgment is only legitimate, where the judgment is grounded on actual, and especially on present, personal experience; not where it
13. Ibid., p. 33.
14. Mill, Principles, II, 448. 15. Ibid., II, 458.
74 GERALD DWORKIN
is formed antecedently to experience, and not suffered to be re versed even after experience has condemned it.16
The upshot of these exceptions is that Mill does not declare that there should never be government interference with the economy but rather that
... in every instance, the burden of making out a strong case should be thrown not on those who resist but on those who recommend government interference. Letting alone, in short, should be the general practice: every departure from it, unless required by some great good, is a certain evi1.17
In short, we get a presumption not an absolute prohibition. The question is why doesn't the argument against paternalism go the same way?
I suggest that the answer lies in seeing that in addition to a purely utilitarian argument Mill uses another as welL As a Utilitarian Mill has to show, in Fitzjames Stephen's words, that:
Self-protection apart, no good object can be attained by any com pulsion which is not in itself a greater evil than the absence of the object which the compulsion obtains.1s
To show this is impossible; one reason being that it isn't true. Pre venting a man from selling himself into slavery (a paternalistic measure which Mill himself accepts as legitimate), or from taking heroin, or from driving a car without wearing seat-belts may constitute a lesser evil than allowing him to do any of these things. A con sistent Utilitarian can only argue against paternalism on the grounds that it (as a matter of fact) does not maximize the good. It is always a contingent question that may be refuted by the evidence. But there is also a non-contingent argument which runs through On Liberty. When Mill states that "there is a part of the life of every person who has come to years of discretion, within which the individuality of that person ought to reign uncontrolled either by any other person or by the public collectively" he is saying something about what it means to be a person, an autonomous agent. It is because coercing a person for his own good denies this status as an independent entity that
16. Ibid., II, 459. 17. Ibid .• II. 451. 18. Stephen. p. 49.
PATERNALISM 75
Mill objects to it so strongly and in such absolute terms. To be able to choose is a good that is independent of the wisdom of what is chosen. A man's "mode of laying out his existence is the best, not because it is the best in itself, but because it is his own mode." 19
It is the privilege and proper condition of a human being, arrived at the maturity of his faculties, to use and interpret experience in his own way.20
As further evidence of this line of reasoning in Mill consider the one exception to his prohibition against paternalism.
In this and most civilised countries, for example, an engagement by which a person should sell himself, or allow himself to be sold, as a slave, would be null and void; neither enforced by law nor by opinion. The ground for thus limiting his power of voluntarily disposing of his own lot in life, is apparent, and is very dearly seen in this extreme case. The reason for not interfering, unless for the sake of others, with a person's voluntary acts, is consideration for his liberty. His voluntary choice is evidence that what he so chooses is desirable, or at least endurable, to him, and his good is on the whole best provided for by allowing him to take his own means of pursuing it. But by selling himself for a slave, he abdicates his liberty; he foregoes any future use of it beyond that single act.
He therefore defeats, in his own case, the very purpose which is the justification of allowing him to dispose of himself. He is no longer free; but is thenceforth in a position which has no longer the pre sumption in its favour, that would be afforded by his voluntarily remaining in it. The principle of freedom cannot require that he should be free not to be free. It is not freedom to be allowed to alienate his freedom.21
Now leaving aside the fudging on the meaning of freedom in the last line it is clear that part of this argument is incorrect. While it is true that future choices of the slave are not reasons for thinking that what he chooses then is desirable for him, what is at issue is limit ing his immediate choice; and since this choice is made freely, the individual may be correct in thinking that his interests are best pro vided for by entering such a contract. But the main consideration
19. Mill, Utilitarianism and On Liberty, p. 197. 20. Ibid., p. 186.
21. Ibid., pp. 235-236.
76 GERALD DWORKIN
for not allowing such a contract is the need to preserve the liberty of the person to make future choices. This gives us a principle-a very narrow one-by which to justify some paternalistic interferences. Paternalism is justified only to preserve a wider range of freedom for the individual in question. How far this principle could be ex tended, whether it can justify all the cases in which we are inclined upon reflection to think paternalistic measures justified remains to be discussed. What I have tried to show so far is that there are two strains of argument in Mill-one a straight-forward Utilitarian mode of reasoning and one which relies not on the goods which free choice leads to but on the absolute value of the choice itself. The first cannot establish any absolute prohibition but at most a presump tion and indeed a fairly weak one given some fairly plausible assump tions about human psychology; the second while a stronger line of argument seems to me to allow on its own grounds a wider range of paternalism then might be suspected. I turn now to a consideration of these matters.
VI
We might begin looking for principles governing the acceptable use of paternalistic power in cases where it is generally agreed that it is legitimate. Even Mill intends his principles to be applicable only to mature individuals, not those in what he calls "non-age". What is it that justifies us in interfering with children? The fact that they lack some of the emotional and cognitive capacities required in order to make fully rational decisions. It is an empirical question to just what extent children have an adequate conception of their own present and future interests but there is not much doubt that there are many deficiencies. For example it is very difficult for a child to defer gratification for any considerable period of time. Given these deficiencies and given the very real and permanent dangers that may befall the child it becomes not only permissible but even a duty of the parent to restrict the child's freedom in various ways. There is however an important moral limitation on the exercise of such par ental power which is provided by the notion of the child eventually coming to see the correctness of his parent's interventions. Parental paternalism may be thought of as a wager by the parent on the child's subsequent recognition of the wisdom of the restrictions. There is an emphasis on what could be called future-oriented consent-on what
PATERNALISM 77
the child will come to welcome, rather than on what he does welcome. The essence of this idea has been incorporated by idealist philoso
phers into various types of "real-will" theory as applied to fully adult persons. Extensions of paternalism are argued for by claiming that in various respects, chronologically mature individuals share the same deficiencies in knowledge, capacity to think rationally, and the ability to carry out decisions that children possess. Hence in interfer ing with such people we are in effect doing what they would do if they were fully rational. Hence we are not really opposing their will, hence we are not really interfering with their freedom. The dangers of this move have been sufficiently exposed by Berlin in his Two Con cepts of Liberty. I see no gain in theoretical clarity nor in practical advantage in trying to pass over the real nature of the interferences with liberty that we impose on others. Still the basic notion of consent is important and seems to me the only acceptable way of trying to delimit an area of justified paternalism.
Let me start by considering a case where the consent is not hypothetical in nature. Under certain conditions it is rational for an individual to agree that others should force him to act in ways in which, at the time of action, the individual may not see as desirable. If, for example, a man knows that he is subject to breaking his resolves when temptation is present, he may ask a friend to refuse to entertain his requests at some later stage.
A classical example is given in the Odyssey when Odysseus com mands his men to tie him to the mast and refuse all future orders to be set free, because he knows the power of the Sirens to enchant men with their songs. Here we are on relatively sound ground in later refusing Odysseus' request to be set free. He may even claim to have changed his mind but since it is just such changes that he wished to guard against we are entitled to ignore them.
A process analogous to this may take place on a social rather than individual basis. An electorate may mandate its representatives to pass legislation which when it comes time to "pay the price" may be unpalatable. I may believe that a tax increase is necessary to halt inflation though I may resent the lower pay check each month. How ever in both this case and that of Odysseus the measure to be en forced is specifically requested by the party involved and at some point in time there is genuine consent and agreement on the part of those persons whose liberty is infringed. Such is not the case for
78 GERALD DWORKIN
the paternalistic measures we have been speaking about. What must be involved here is not consent to specific measures but rather consent to a system of government, run by elected representatives, with an understanding that they may act to safeguard our interests in certain limited ways.
I suggest that since we are all aware of our irrational propensities, deficiencies in cognitive and emotional capacities and avoidable and unavoidable ignorance it is rational and prudent for us to in effect take out "social insurance policies" . We may argue for and against proposed paternalistic measures in terms of what fully rational in dividuals would accept as forms of protection. Now, clearly since the initial agreement is not about specific measures we are dealing with a more-or-less blank check and therefore there have to be carefully defined limits. What I am looking for are certain kinds of conditions which make it plausible to suppose that rational men could reach agreement to limit their liberty even when other men's interests are not affected.
Of course as in any kind of agreement schema there are great difficulties in deciding what rational individuals would or would not accept. Particularly in sensitive areas of personal liberty, there is always a danger of the dispute over agreement and rationality being a disguised version of evaluative and normative disagreement.
Let me suggest types of situations in which it seems plausible to suppose that fully rational individuals would agree to having paternal istic restrictions imposed upon them. It is reasonable to suppose that there are "goods" such as health which any person would want to have in order to pursue his own good-no matter how that good is conceived. This is an argument that is used in connection with com pulsory education for children but it seems to me that it can be ex tended to other goods which have this character. Then one could agree that the attainment of such goods should be promoted even when not recognized to be such, at the moment, by the individuals concerned.
An immediate difficulty that arises stems from the fact that men are always faced with competing goods and that there may be reasons why even a value such as health-or indeed life-may be over ridden by competing values. Thus the problem with the Christian Scientist and blood transfusions. It may be more important for him to reject "impure substances" than to go on living. The difficult prob-
PATERNALISM 79
lem that must be faced is whether one can give sense to the notion of a person irrationally attaching weights to competing values.
Consider a person who knows the statistical data on the prob ability of being injured when not wearing seat belts in an automobile and knows the types and gravity of the various injuries. He also insists that the inconvenience attached to fastening the belt every time he gets in and out of the car outweighs for him the possible risks to himself. I am inclined in this case to think that such a weighing is irrational. Given his life-plans which we are assuming are those of the average person, his interests and commitments already under taken, I think it is safe to predict that we can find inconsistencies in his calculations at some point. I am assuming that this is not a man who for some conscious or unconscious reasons is trying to injure himself nor is he a man who just likes to "live dangerously". I am assuming that he is like us in all the relevant respects but just puts an enormously high negative value on inconvenience-one which does not seem comprehensible or reasonable.
It is always possible, of course to assimilate this person to creatures like myself. I, also, neglect to fasten my seat belt and I concede such behavior is not rational but not because I weigh the inconvenience differently from those who fasten the belts. It is just that having made (roughly) the same calculation as everybody else I ignore it in my actions. [Note: a much better case of weakness of the will than those usually given in ethics texts.} A plausible explanation for this deplorable habit is that although I know in some intellectual sense what the probabilities and risks are I do not fully appreciate them in an emotionally genuine manner.
We have two distinct types of situation in which a man acts in a non-rational fashion. In one case he attaches incorrect weights to some of his values; in the other he neglects to act in accordance with his actual preferences and desires. Clearly there is a stronger and more persuasive argument for paternalism in the latter situation. Here we are really not-by assumption-imposing a good on another person. But why may we not extend our interference to what we might call evaluative delusions? After all in the case of cognitive de lusions we are prepared, often, to act against the expressed will of the person involved. If a man believes that when he jumps out the win dow he will float upwards-Robert Nozick's example-would not we detain him, forcibly if necessary? The reply will be that this man
80 GERALD DWORKIN
doesn't wish to be injured and if we could convince him that he is mistaken as to the consequences of his action he would not wish to perform the action. But part of what is involved in claiming that a man who doesn't fasten his seat-belts is attaching an irrational weight to the inconvenience of fastening them is that if he were to be in volved in an accident and severely injured he would look back and admit that the inconvenience wasn't as bad as all that. So there is a sense in which if I could convince him of the consequences of his action he also would not wish to continue his present course of action. Now the notion of consequences being used here is covering a lot of ground. In one case it's being used to indicate what will or can happen as a result of a course of action and in the other it's making a prediction about the future evaluation of the consequences-in the first sense-of a course of action. And whatever the difference be tween facts and values-whether it be hard and fast or soft and slow-we are genuinely more reluctant to consent to interferences where evaluative differences are the issue. Let me now consider another factor which comes into play in some of these situations which may make an important difference in our willingness to con sent to paternalistic restrictions.
Some of the decisions we make are of such a character that they produce changes which are in one or another way irreversible. Situa tions are created in which it is difficult or impossible to return to any thing like the initial stage at which the decision was made. In par ticular some of these changes will make it impossible to continue to make reasoned choices in the future. I am thinking specifically of decisions which involve taking drugs that are physically or psycho logically addictive and those which are destructive of one's mental and physical capacities.
I suggest we think of the imposition of paternalistic interferences in situations of this kind as being a kind of insurance policy which we take out against making decisions which are far-reaching, potentially dangerous and irreversible. Each of these factors is important. Clearly there are many decisions we make that are relatively irreversible. In deciding to learn to play chess I could predict in view of my general interest in games that some portion of my free-time was going to be pre-empted and that it would not be easy to give up the game once I acquired a certain competence. But my whole life-style was not
PATERNALISM 81
going to be jeopardized in an extreme manner. Further it might be argued that even with addictive drugs such as heroin one's normal life plans would not be seriously interfered with if an inexpensive and adequate supply were readily available. So this type of argument might have a much narrower scope than appears to be the case at first.
A second class of cases concerns decisions which are made under extreme psychological and sociological pressures. I am not thinking here of the making of the decision as being something one is pressured into-e.g. a good reason for making duelling illegal is that unless this is done many people might have to manifest their courage and integrity in ways in which they would rather not do so -but rather of decisions such as that to commit suicide which are usually made at a point where the individual is not thinking clearly and calmly about the nature of his decision. In addition, of course, this comes under the previous heading of all-too-irrevocable decision. Now there are practical steps which a society could take if it wanted to decrease the possibility of suicide-for example not paying social security benefits to the survivors or as religious institutions do, not allowing such persons to be buried with the same status as natural deaths. I think we may count these as interferences with the liberty of persons to attempt suicide and the question is whether they are justi fiable.
Using my argument schema the question is whether rational indi viduals would consent to such limitations. I see no reason for them to consent to an absolute prohibition but I do think it is reasonable for them to agree to some kind of enforced waiting period. Since we are all aware of the possibility of temporary states, such as great fear or depression, that are inimical to the making of well-informed and rational decisions, it would be prudent for all of us if there were some kind of institutional arrangement whereby we were restrained from making a decision which is (all too) irreversible. What this would be like in practice is difficult to envisage and it may be that if no practical arrangements were feasible then we would have to conclude that there should be no restriction at all on this kind of action. But we might have a "cooling 0[£" period, in much the same way that we now require couples who file for divorce to go through a waiting period. Or, more far-fetched, we might imagine a Suicide Board composed of a psychologist and another member picked by
82 GERALD DWORKIN
the applicant. The Board would be required to meet and talk with the person proposing to take his life, though its approval would not be required.
A third class of decisions-these classes are not supposed to be disjoint-involves dangers which are either not sufficiently under stood or appreciated correctly by the persons involved. Let me illus trate, using the example of cigarette smoking, a number of possible cases.
1. A man may not know the facts-e.g. smoking between 1 and 2 packs a day shortens life expectancy 6.2 years, the costs and pain of the illness caused by smoking, etc. 2. A man may know the facts, wish to stop smoking, but not have the requisite will-power. 3. A man may know the facts but not have them play the correct role in his calculation because, say, he discounts the danger psycho logically because it is remote in time and/or inflates the attractiveness of other consequences of his decision which he regards as beneficial.
In case 1 what is called for is education, the posting of warnings, etc. In case 2 there is no theoretical problem. Weare not imposing a good on someone who rejects it. We are simply using coercion to enable people to carry out their own goals. (Note: There obviously is a difficulty in that only a subclass of the individuals affected wish to be prevented from doing what they are doing.) In case 3 there is a sense in which we are imposing a good on someone since given his current appraisal of the facts he doesn't wish to be restricted. But in another sense we are not imposing a good since what is being claimed -and what must be shown or at least argued for-is that an accurate accounting on his part would lead him to reject his current course of action. Now we all know that such cases exist, that we are prone to disregard dangers that are only possibilities, that immediate pleasures are often magnified and distorted.
If in addition the dangers are severe and far-reaching we could agree to allowing the state a certain degree of power to intervene in such situations. The difficulty is in specifying in advance, even vaguely, the class of cases in which intervention will be legitimate.
A related difficulty is that of drawing a line so that it is not the case that all ultra-hazardous activities are ruled out, e.g. mountain climbing, bull-fighting, sports-car racing, etc. There are some risks-
PATERNALISM 83
even very great ones-which a person is entitled to take with his life. A good deal depends on the nature of the deprivation--e.g. does
it prevent the person from engaging in the activity completely or merely limit his participation-and how important to the nature of the activity is the absence of restriction when this is weighed against the role that the activity plays in the life of the person. In the case of automobile seat belts, for example, the restriction is trivial in nature, interferes not at all with the use or enjoyment of the activity, and does, I am assuming, considerably reduce a high risk of serious injury. Whereas, for example, making mountain climbing illegal prevents completely a person engaging in an activity which may play an important role in his life and his conception of the person he is.
In general the easiest cases to handle are those which can be argued about in the terms which Mill thought to be so important-a concern not just for the happiness or welfare, in some broad sense, of the individual but rather a concern for the autonomy and freedom of the person. I suggest that we would be most likely to consent to pa ternalism in those instances in which it preserves and enhances for the individual his ability to rationally consider and carry out his own decisions.
I have suggested in this essay a number of types of situations in which it seems plausible that rational men would agree to granting the legislative powers of a society the right to impose restrictions on what Mill calls "self-regarding" conduct. However, rational men knowing something about the resources of ignorance, ill-will and stupidity available to the law-makers of a society-a good case in point is the history of drug legislation in the United States-will be concerned to limit such intervention to a minimum. I suggest in clos ing two principles designed to achieve this end.
In all cases of paternalistic legislation there must be a heavy and clear burden of proof placed on the authorities to demonstrate the exact nature of the harmful effects (or beneficial consequences) to be avoided (or achieved) and the probability of their occurrence. The burden of proof here is twofold-what lawyers distinguish as the burden of going forward and the burden of persuasion. That the authorities have the burden of going forward means that it is up to them to raise the question and bring forward evidence of the evils to be avoided. Unlike the case of new drugs where the manufacturer must produce some evidence that the drug has been tested and found
84 GERALD DWORKIN
not harmful, no citizen has to show with respect to self-regarding conduct that it is not harmful or promotes his best interests. In addi tion the nature and cogency of the evidence for the harmfulness of the course of action must be set at a high level. To paraphrase a formulation of the burden of proof for criminal proceedings-better 10 men ruin themselves than one man be unjustly deprived of liberty.
Finally I suggest a principle of the least restrictive alternative. If there is an alternative way of accomplishing the desired end without restricting liberty then although it may involve great expense, in convenience, etc. the society must adopt it.
GERALD DWORKIN
MASSACHUSETTS INSTITUTE OF TECHNOLOGY
__MACOSX/Freedom, Privacy and Tech./._Paternalism%20Dworkin%20monist_1972.pdf
Freedom, Privacy and Tech./PrivateIDorothyAllison.pdf
__MACOSX/Freedom, Privacy and Tech./._PrivateIDorothyAllison.pdf
Freedom, Privacy and Tech./PrivateIGonzalez-Crussi.pdf
__MACOSX/Freedom, Privacy and Tech./._PrivateIGonzalez-Crussi.pdf
Freedom, Privacy and Tech./PrivateIMalamudSmith.pdf
__MACOSX/Freedom, Privacy and Tech./._PrivateIMalamudSmith.pdf
Freedom, Privacy and Tech./Surveillance%20Links.docx
I have been looking for some documents of reasonable length to assign for the NSA issue. There are a number below, but today’s New York Times (Sunday) front page article is an excellent overview
“No Morsel is Too Miniscule for All Consuming NSA” by Scott Shane. You should be able to access it www.nytimes.com. The specific address is below. If you cannot for some reason, let me know. Think how it relates to our earlier readings.
This will be the only assigned reading for Tuesday but feel free to explore some of the articles and links listed below the Times address.
http://www.nytimes.com/2013/11/03/world/no-morsel-too-minuscule-for-all-consuming-nsa.html?pagewanted=1&hp---
------------------------------------------------------------------------------------------
Are They Allowed to Do That? A Breakdown of Selected Government Surveillance Programs
July 15, 2013 Brennan Center NewYork University School of Law
Liberty & National Security , Privacy & Profiling , Transparency & Accountability
As news of the government's broad surveillance programs develops, a host of unanswered questions arise. This fact sheet answers many of those questions, examining the legal and practical steps the government may have taken to secretly collect data.
In Secret, Court Vastly Broadens Powers of N.S.A.
By ERIC LICHTBLAU
Published: July 6, 2013 New York Times
http://www.nytimes.com/2013/07/07/us/in-secret-court-vastly-broadens-powers-of-nsa.html?_r=0
The Guardian Series: Glenn Greenwald on security and liberty
http://www.theguardian.com/world/2013/jun/20/fisa-court-nsa-without-warrant
The top secret rules that allow NSA to use US data without a warrant Glenn Greenwald and James Ball Fisa court submissions show broad scope of procedures governing NSA's surveillance of Americans' communication
Annals of Surveillance: The Prism-Privacy in an age of publicity.
by Jill Lepore June 24, 2013 The New Yorker
http://www.newyorker.com/reporting/2013/06/24/130624fa_fact_lepore
The defense of privacy always follows the emergence of technologies for breaching it.
10/10/2013
Beware of Poison Pill Spying Reform
By Robyn Greene, ACLU Washington Legislative Office
https://www.aclu.org/blog/national-security/beware-poison-pill-spying-reform
Electronic Frontier Foundation. https://www.eff.org/
Harpers “The Real Insider Threat” by Scott Horton Suppressing internal leaks
http://harpers.org/blog/2013/07/the-real-insider-threat/
__MACOSX/Freedom, Privacy and Tech./._Surveillance%20Links.docx
Freedom, Privacy and Tech./Two%20Liberties%20I%20Berlin%20extract.docx
Adapted from http://dspace.jorum.ac.uk/xmlui/bitstream/handle/10949/614/Items/A211_2_section6.html
3 Isaiah Berlin's ‘Two Concepts of Liberty’ (1958)
3.2 Negative freedom
The concept of negative freedom centres on freedom from interference. This type of account of freedom is usually put forward in response to the following sort of question:
What is the area within which the subject – a person or group of persons – is or should be left to do or be what he is able to do or be, without interference by other persons?
(Berlin (1969), pp. 121–2; see, p. 155)
Or, more simply, ‘Over what area am I master?’ (ibid., p. xliii). Theories of negative freedom spell out the acceptable limits of interference in individuals’ lives. You restrict my negative freedom when you restrict the number of choices I can make about my life. The extent of my negative freedom is determined by how many possible choices lie open to me, or, to use one of Berlin's metaphors, how many doors are unlocked. It is also determined by the types of choices that are available. Clearly not every sort of choice should be given equal status: some choices are of greater importance than others. For most of us having freedom of speech, even if we don't take advantage of this opportunity, is a more important freedom than the freedom to choose between ten different sorts of washing powder. This is how Berlin puts it:
The extent of a man's negative liberty is, as it were, a function of what doors, and how many are open to him; upon what prospects they open; and how open they are.
(Ibid., p.xlviii)
(It is worth bearing in mind when reading extracts from Berlin's article that it was written in the late 1950s when there was little concern about the apparent sexism of using the word ‘man’ to mean ‘human’, i.e. man or woman. He certainly does not intend to imply that only men can be free, or that only men can limit another's freedom. For ‘man’ read ‘human being’ or ‘person’.)
It doesn't matter whether or not I actually take advantage of the opportunities open to me: I am still free to the extent that I could, if I chose, take advantage of them:
The freedom of which I speak is opportunity for action, rather than action itself. If, although I enjoy the right to walk through open doors, I prefer not to do so, but to sit still and vegetate, I am not thereby rendered less free. Freedom is the opportunity to act, not action itself.
(Ibid, p.xlii)
So, if you park your car across my drive, thereby preventing me from getting my car out, you restrict my freedom; and this is true even if I choose to stay in bed listening to my CDs all day, and would have done so even if you hadn't parked there. Or, if the state prevents me from going on strike by making my actions illegal, even if I don't have anything to strike about, and even if I don't ever intend to strike, my freedom is still curtailed. Negative freedom is a matter of the doors open to me, not of whether I happen to choose to go through them.
However, not all restrictions on my possible choices are infringements of my negative freedom. Berlin states that only restrictions imposed by other people affect my freedom. Colloquially, we might say that because we are human we aren't free to jump ten feet in the air or free to understand what an obscure passage in a difficult book by Hegel means. (Hegel was a philosopher (1790–1831) justifiably renowned for the obscurity of most of his writing.) But when discussing political freedom, the sort we are interested in here, these sorts of restrictions on what we can do, aren't counted as obstacles to freedom, however distressing they may be. Other people limit our freedom by what they do.
Limitations on our action brought about by the nature of the universe or the human body aren't relevant to the discussion of political freedom. Political freedom is a matter of the relations of power which hold between individuals and between individuals and the state.
The clearest cases in which freedom is restricted are when someone forces you to do something. You might be forced to join the army, for instance, if you live in a country which has compulsory military service. The law might force you to wear a crash helmet every time you ride your motorcycle. Your partner might force you to stay in rather than go out to the cinema, or to tidy up the kitchen rather than do another hour's study.
Read the following extract from Berlin's article. Then do the activity below.
I am normally said to be free to the degree to which no man or body of men interferes with my activity. Political liberty in this sense is simply the area within which a man can act unobstructed by others. If I am prevented by others from doing what I could otherwise do, I am to that degree unfree; and if this area is contracted by other men beyond a certain minimum, I can be described as being coerced, or, it may be, enslaved. Coercion is not, however, a term that covers every form of inability. If I say that I am unable to jump more than ten feet in the air, or cannot read because I am blind, or cannot understand the darker pages of Hegel, it would be eccentric to say that I am to that degree enslaved or coerced. Coercion implies the deliberate interference of other human beings within the area in which I could otherwise act. You lack political liberty or freedom only if you are prevented from attaining a goal by human beings. Mere incapacity to attain a goal is not lack of political freedom.*
* Helvetius [1715–71] made this point very clearly: ‘The free man is the man who is not in irons, nor imprisoned in a gaol, nor terrorized like a slave by the fear of punishment… it is not lack of freedom not to fly like an eagle or swim like a whale.’
(Ibid., p. 122; see, p. 156)
Which of the following involve limitations on an individual's negative freedom in the sense outlined by Berlin above? Not all the cases are clearcut.
1. The state prevents you from purchasing certain kinds of pornography.
2. You aren't tall enough to pick quinces from the tree in your garden.
3. You aren't tall enough to join the police force.
4. You aren't rich enough to buy a private island.
5. You aren't permitted to own a handgun.
6. The law forces you to wear a seatbelt when driving.
7. No one has ever selected you to play football for your country.
8. You are forced to study philosophy against your will.
9. Someone has handcuffed you to a lamppost.
10. You can't read because you are blind. Officers of an evil totalitarian regime blinded you to prevent you reading and writing subversive literature. You are denied access to braille books and audio tapes.
11. You are too poor to buy a loaf of bread because you've spent all your money on champagne.
12. You are simply too poor to buy a loaf of bread, not through any fault of your own.
Compare your answers with the answers and explanations below before reading on.
(1), (5), (6), (8), (9) and (10) are all straightforward restrictions of negative freedom. (2) almost certainly isn't (unless someone has somehow restricted your growth). (11) isn't a restriction of negative liberty. (7) probably isn't, unless you are an outstanding footballer whom someone has deliberately prevented from playing football for your country. (4) and (12) could involve restrictions on negative liberty if someone else's actions were making you poor (or at least not rich enough to do the things described).
It might have seemed to follow from Berlin's account of negative freedom that poverty couldn't count as a limitation on individual freedom. True, poverty effectively locks many doors. But these doors aren't necessarily locked by other people's actions; poverty may have other, non-human, causes. It may be due to the effects of freak weather conditions leading to famine; or perhaps to sudden illness or accident. Whether or not poverty is to count as a limitation of negative freedom depends entirely on your view of the causes of the poverty in question. This becomes clear in the following passage from Berlin's essay:
It is argued, very plausibly, that if a man is too poor to afford something on which there is no legal ban – a loaf of bread, a journey round the world, recourse to the law courts – he is as little free to have it as he would be if it were forbidden him by law. If my poverty were a kind of disease, which prevented me from buying bread, or paying for the journey round the world or getting my case heard, as lameness prevents me from running, this inability would not naturally be described as a lack of freedom, least of all political freedom. It is only because I believe that my inability to get a given thing is due to the fact that other human beings have made arrangements whereby I am, whereas others are not, prevented from having enough money with which to pay for it, that I think myself a victim of coercion or slavery.
‘The nature of things does not madden us, only ill will does’, said Rousseau. The criterion of oppression is the part that I believe to be played by other human beings, directly or indirectly with or without the intention of doing so, in frustrating my wishes. By being free in this sense I mean not being interfered with by others. The wider the area of non-interference the wider my freedom.
(Ibid., pp. 122–3; see, p. 156)
If the man described above is too poor to buy a loaf of bread as a consequence of other people's actions, then, whether these other people intended this effect or not, his freedom has been curtailed. But if his poverty is a result of non-human causes, such as a drought-induced famine, or some natural disaster, terrible as his plight might be, it would not limit his negative freedom.
3 Isaiah Berlin's ‘Two Concepts of Liberty’ (1958)
3.3 Positive freedom
Positive freedom is a more difficult notion to grasp than negative. Put simply it is freedom to do something rather than freedom from interference. Negative freedom is simply a matter of the number and kind of options that lie open for you and their relevance for your life; it is a matter of what you aren't prevented from doing; the doors that lie unlocked. Positive freedom, in contrast, is a matter of what you can actually do. All sorts of doors may be open, giving you a large amount of negative freedom, and yet you might find that there are still obstacles to taking full advantage of your opportunities. Berlin sometimes talks of positive liberty in terms of the question ‘Who is master?’ I want to be in control of my life, but there may, for example, be internal obstacles to my living the way I really want to. Here we might talk of my increasing my freedom (in the positive sense) by overcoming my less rational desires.
This is easier to understand if you consider some examples. I might recognise the value of study for making my life go well, but keep getting sidetracked by less important, immediately gratifying activities, such as going out for a drink, or staying in and spending the whole evening watching ‘soaps’ on television. I know that studying is important to me, and will increase my control over my life. But I really enjoy going out for a drink and I really enjoy watching television ‘soaps’. So the short-term gratifications tend to seduce me away from activities which are better for me in the long term. My positive freedom would be increased if my ‘higher’ rational side could overcome my ‘lower’ tendency to be sidetracked. It is not a question of having more, or more significant, opportunities: the opportunity for me to study is there now. Rather it is a question of being able to take advantage of the opportunity by being in control of my life. Positive freedom in this example is a matter of my having the capacity to take the rational option as well as having the opportunity: whereas, according to a concept of negative freedom, the opportunities that I have alone determine the extent of my freedom. I am free to study in the negative sense since no one is preventing me from doing it; no one has locked away my books, or hidden my pen and paper; no one has dragged me out of the door to go to the pub, or chained me to my armchair in front of the television. However, I am not free in the positive sense; I am not truly free, because I am a slave to my tendency to be sidetracked. True positive freedom would involve seizing control of my life and making rational choices for myself. Those who defend positive freedom believe that just because no one is preventing you from doing something, it does not follow that you are genuinely free. Positive freedom is a matter of achieving your potential, not just having potential.
From this it should be clear that the notion of positive liberty may rely on the belief that the self can be split into a higher and a lower self, and that the higher or rational self's priorities should be encouraged to overcome the lower, less rational self's inclinations: the passing desires that if acted on can so upset a life plan. The higher self has desires for what will make the individual's life go well; it wishes to pursue worthwhile and noble goals. The lower self is easily led astray, often by irrational appetites. Consequently, advocates of positive liberty argue, we need to be protected against our own lower selves in order to realize the goals of our higher, ‘true’ selves. In many cases this can only be achieved by coercing us to behave in ways which seem to go against our desires; in fact this coercion is necessary to allow us to fulfil our rational higher desires, desires which we may even be unaware of having. On this view, the freedom which is self-mastery, or positive freedom, may only be achievable if our lower selves are constrained in their actions. By preventing me from going out for a drink or from watching television all night you may help me to realize my ‘true’ freedom which is achievable only if I spend a significant portion of my available time studying.
It is important to realise that Berlin's notion of positive liberty doesn't just apply to self-mastery at the individual level; it also encompasses theories of freedom which emphasize collective control over common life. So, for example, when someone calls a society a free society because its members play an active role in controlling it through their participation in democratic institutions, they are appealing to a notion of positive freedom rather than of negative freedom. In this example the people as a whole are free because they, collectively, have mastery over the life of their society. A free society based upon the concept of negative freedom would typically be one in which state interference in individual lives is kept to a minimum. This would not necessarily be a democratic society since a benevolent dictator might be concerned to provide an extensive realm of individual negative freedom for each of his or her subjects.
Activity 3: Positive and negative freedom
Which sort of conception of freedom, positive or negative, is appealed to in each case?
1. The state intervenes to prevent an alcoholic drinking himself to death on the grounds that this is what, in his sober and rational moments, he would clearly desire and so is a basic condition of his gaining true freedom.
2. The state protects an alcoholic's freedom to consume huge amounts of whisky in the privacy of her own home.
3. I cease to be free when I follow my baser sensual appetites: I am in thrall to mere passing desire.
4. It is an infringement on my freedom to prevent me from engaging in consensual sado-masochism in the privacy of my own dungeon.
5. I don't need the nanny state forcing me to have fluoride in my drinking water for my own good: that infringes my freedom.
6. You can only really be free in a well-governed state with harsh but well-chosen laws which shape your life in a rational way, thereby encouraging you to flourish. Increasing your opportunities to make a mess of your life doesn't increase your freedom in any meaningful sense.
Compare your answers with those below before reading on.
1. positive.
2. negative.
3. positive.
4. negative.
5. negative.
6. positive.
Berlin's distinction between negative and positive freedom remains a useful one, and much of are structured around it. However, his aim in the paper was not simply to make the distinction, but rather to make a claim about the ways in which theories of positive freedom have been misused.
3 Isaiah Berlin's ‘Two Concepts of Liberty’ (1958)
3.4 The misuse of the concept of positive liberty
One of the main claims that Berlin makes in ‘Two Concepts of Liberty’ is a historical one. It is that positive theories of freedom, or perversions of them, have been more frequently used as instruments of oppression than have negative ones. These positive theories typically rely on a split between a ‘higher’ and a ‘lower’ self, or between a ‘rational’ and an ‘empirical’ self as Berlin sometimes puts it. Coercion is justified on the grounds that it leads to a realisation of the aims of the higher or rational self, even if the lower, everyday, empirical self opposes the coercion with all its might. The final humiliation in such a situation is to be told that, despite appearances, what is going on is not coercion, since it actually increases your freedom. In other words, Berlin believes that positive theories of freedom have historically been used to justify some kinds of oppression and that it is a relatively short step from saying that freedom involves self-mastery to the justification of all kinds of state interference in the lives of individuals on the grounds that, in Rousseau's words, it can, in some circumstances, be right to be ‘forced to be free’.
Read the following extract from Berlin's article (ibid., pp. 131–4; see, pp. 161–3), and then answer the questions below.
|
The freedom which consists in being one's own master, and the freedom which consists in not being prevented from choosing as I do by other men, may, on the face of it, seem concepts at no great logical distance from each other – no more than negative and positive ways of saying much the same thing. Yet the The freedom which consists in being one's own master, and the freedom which consists in not being prevented from choosing as I do by other men, may, on the face of it, seem concepts at no great logical distance from each other – no more than negative and positive ways of saying much the same thing. Yet the ‘positive’ and ‘negative’ notions of freedom historically developed in divergent directions not always by logically reputable steps, until, in the end, they came into direct conflict with each other. One way of making this clear is in terms of the independent momentum which the, initially perhaps quite harmless, metaphor of self-mastery acquired. ‘I am my own master’; ‘I am slave to no man’; but may I not (as Platonists or Hegelians tend to say) be a slave to nature? Or to my own ‘unbridled’ passions? Are these not so many species of the identical genus ‘slave’ – some political or legal, others moral or spiritual? Have not men had the experience of liberating themselves from spiritual slavery, or slavery to nature, and do they not in the course of it become aware, on the one hand, of a self which dominates, and, on the other, of something in them which is brought to heel? This dominant self is then variously identified with reason, with my ‘higher nature’, with the self which calculates and aims at what will satisfy it in the long run, with my ‘real’, or ‘ideal’, or ‘autonomous’ self, or with my self ‘at its best’; which is then contrasted with irrational impulse, uncontrolled desires, my ‘lower’ nature, the pursuit of immediate pleasures, my ‘empirical’ or ‘heteronomous’ self, swept by every gust of desire and passion, needing to be rigidly disciplined if it is ever to rise to the full height of its ‘real’ nature. Presently the two selves may be represented as divided by an even larger gap: the real self may be conceived as something wider than the individual (as the term is normally understood), as a social ‘whole’ of which the individual is an element or aspect: a tribe, a race, a church, a state, the great society of the living and the dead and the yet unborn. This entity is then identified as being the ‘true’ self which, by imposing its collective, or ‘organic’, single will upon its recalcitrant ‘members’, achieves its own, and therefore their, ‘higher’ freedom. The perils of using organic metaphors to justify the coercion of some men by others in order to raise them to a ‘higher’ level of freedom have often been pointed out. But what gives such plausibility as it has to this kind of language is that we recognize that it is possible, and at times justifiable, to coerce men in the name of some goal (let us say, justice or public health) which they would, if they were more enlightened, themselves pursue, but do not, because they are blind or ignorant or corrupt. This renders it easy for me to conceive of myself as coercing others for their own sake, in their, not my, interest. I am then claiming that I know what they truly need better than they know it themselves. What, at most, this entails is that they would not resist me if they were rational and as wise as I and understood their interests as I do. But I may go on to claim a good deal more than this. I may declare that they are actually aiming at what in their benighted state they consciously resist, because there exists within them an occult entity – their latent rational will, or their ‘true’ purpose – and that this entity, although it is belied by all that they overtly feel and do and say, is their ‘real’ self, of which the poor empirical self in space and time may know nothing or little; and that this inner spirit is the only self that deserves to have its wishes taken into account. Once I take this view, I am in a position to ignore the actual wishes of men or societies, to bully, oppress, torture them in the name, and on behalf, of their ‘real’ selves, in the secure knowledge that whatever is the true goal of man (happiness, performance of duty, wisdom, a just society, self-fulfilment) must be identical with his freedom – the free choice of his ‘true’, albeit often submerged and inarticulate, self. This paradox has been often exposed. It is one thing to say that I know whatis good for X, while he himself does not; and even to ignore his wishes for its – and his – sake; and a very different one to say that he has eo ipso chosen it, not indeed consciously, not as he seems in everyday life, but in his role as a rational self which his empirical self may not know – the ‘real’ self which discerns the good, and cannot help choosing it once it is revealed. This monstrous impersonation, which consists in equating what X would choose if he were something he is not, or at least not yet, with what X actually seeks and chooses, is at the heart of all political theories of self-realization. It is one thing to say that I may be coerced for my own good which I am too blind to see: this may, on occasion, be for my benefit; indeed it may enlarge the scope of my liberty. It is another to say that if it is my good, then I am not being coerced, for I have willed it, whether I know this or not, and am free (or ‘truly’ free) even while my poor earthly body and foolish mind bitterly reject it, and struggle against those who seek however benevolently to impose it, with the greatest desperation. |
1. Which of the following two phrases describes the concept of positive freedom and which the concept of negative freedom?
1. ‘The freedom which consists in being one's own master.’
2. ‘The freedom which consists in not being prevented from choosing as I do by other men.’
2. Berlin says that coercing people for their own sake is sometimes justifiable. What, then, is the ‘good deal more than this’ which advocates of positive liberty sometimes go on to claim ?
3. A paradox is a situation which yields an apparent contradiction. What is the paradox that Berlin refersto when he says “this paradox has been exposed”?
Compare your answers with those below. Then re-read the whole extract before reading on. You should find that your understanding of the main points made in the passage has increased significantly.
1.
1. positive.
2. negative.
2. Berlin claims that some advocates of positive liberty have gone so far as to insist that other people don't necessarily know what they really want, what their higher selves seek. Such advocates of positive liberty may ignore what other people say they want and bully, oppress or torture them on the grounds that that is what their ‘real’ selves would want. This, they claim, is not coercion, since it is what their victims’ ‘real’ selves wish for. It is not a case of forcing people to do what would be good for them because they can't appreciate what is good for them; it is a matter of forcing people to do what at a level unavailable to them they, allegedly, wish to do.
3. The paradox is that people are forced to do what they say they don't want to do on the grounds that they really do want to do it. What they really want to do, on this analysis, is what they really don't want to do.
Although Berlin doesn't actually use the term, in the passage you have just read Berlin contrasts paternalism with a particular way in which the concept of positive freedom has frequently been misused. Paternalism is coercing people for their own sake. An example of paternalism is putting fluoride in drinking water, whether or not the population wants it there, on the grounds that it will significantly reduce the incidence of tooth decay, and thus improve the health of the population. The fluoride is added for the good of the people who drink the water, whether they realise that it will do them good or not. Misuse of positive freedom differs from this in that it involves the claim that the coercion is something the people coerced have, in a sense, chosen: they have ‘chosen’ it as rational selves, but not in the everyday sense of ‘chosen’. Though it might not seem like it to them, they are, allegedly, freer as a result of the coercion. In other words, this misuse of positive freedom rests on the belief that it can be acceptable to force people to be free. Indeed, in some cases this seems to be the only way in which, according to the theory, some individuals will ever attain ‘true’ freedom. This move from positive liberty to forcing people to be ‘free’ has, in recent history, led to oppression on a massive scale. It has been the source of much misery and many ruined lives.
It is important to realise that Berlin is not saying that only the concept of positive liberty can be misused. In fact it is obvious that versions of the negative concept can also be used to justify some terrible states of affairs. In some situations, preserving individuals' freedom from interference might be tantamount to encouraging the strong to thrive at the expense of the weak. As it has been memorably put, ‘Freedom for the pike is death for the minnows’. The pike might think it an excellent idea to allow fish to go about their business unimpeded by rules or interventions. The minnows, who stand to be his lunch, will no doubt see the limitations of a negative theory of liberty which allowed them to be eaten on the grounds that otherwise the pike's freedom would have been seriously curtailed.
However, although theories based on a concept of negative liberty can lead to unsatisfactory situations, Berlin's point is that historically this is not usually what has happened. It is the theories of positive liberty which have led to human tragedy on a massive scale. The terrible irony is that the justification for oppression has so often been that coercion actually increases the ‘real’ or ‘true’ freedom of the coerced.
Berlin has sometimes been interpreted as saying that all theories of positive freedom are bad, and that the only type of theory worth defending is one based on the concept of negative freedom – freedom from interference. But this is a misinterpretation which he has been at pains to dispel. For instance, he has written:
‘Positive’ liberty, conceived as the answer to the question, ‘By whom am I to be governed?’, is a valid universal goal. I do not know why I should have been held to doubt this… I can only repeat that the perversion of the notion of positive liberty into its opposite – the apotheosis of authority – did occur, and has for a long while been one of the most familiar and depressing phenomena of our time. For whatever reason or cause, the notion of ‘negative’ liberty (conceived as the answer to the question ‘How much am I governed?’) however disastrous the consequences of its unbridled forms, has not historically been twisted by its theorists as often or as effectively into anything so darkly metaphysical or socially sinister or remote from its original meaning as its ‘positive’ counterpart. The first can be turned into its opposite and still exploit the favourable associations of its innocent origins. The second has, much more frequently, been seen, for better and for worse, for what it was; there has been no lack of emphasis, in the last hundred years, upon its more disastrous implications. Hence, the greater need, it seems to me, to expose the aberrations of positive liberty than those of its negative brother.
(Berlin (1969), p. xlvii)
He has also expanded on this topic in an interview:
The only reason for which I have been suspected of defending negative liberty against positive and saying that it is more civilized, is because I do think that the concept of positive liberty, which is of course essential to a decent existence, has been more often abused or perverted than that of negative liberty. Both are genuine questions; both are inescapable… Both these concepts have been politically and morally twisted into their opposites. George Orwell is excellent on this. People say ‘I express your real wishes. You may think that you know what you want, but I, the Fuhrer, we the Party Central Committee, know you better than you know yourself, and provide you with what you would ask for if you recognised your "real" needs.’ Negative liberty is twisted when I am told that liberty must be equal for the tigers and for the sheep and that this cannot be avoided even if it enables the former to eat the latter if coercion by the state is not to be used. Of course unlimited liberty for capitalists destroys the liberty of the workers, unlimited liberty for factory-owners or parents will allow children to be employed in the coal-mines. Certainly the weak must be protected against the strong, and liberty to that extent be curtailed. Negative liberty must be curtailed if positive liberty is to be sufficiently realised; there must be a balance between the two, about which no clear principles can be enunciated. Positive and negative liberty are both perfectly valid concepts, but it seems to me that historically more damage has been done by pseudo-positive than by pseudo-negative liberty in the modern world.
(Jahanbegloo (1993), p. 41)
__MACOSX/Freedom, Privacy and Tech./._Two%20Liberties%20I%20Berlin%20extract.docx
Freedom, Privacy and Tech./United%20States%20v.U.S.%20District%20(Keith)1972docx.docx
United States v. United States District Court
United States v. United States District Court (No. 70-153)
Argued: February 24, 1972
Decided: June 19, 1972
___
Syllabus
The United States charged three defendants with conspiring to destroy, and one of them with destroying, Government property. In response to the defendants' pretrial motion for disclosure of electronic surveillance information, the Government filed an affidavit of the Attorney General stating that he had approved the wiretaps for the purpose of
gather[ing] intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.
On the basis of the affidavit and surveillance logs (filed in a sealed exhibit), the Government claimed that the surveillances, though warrantless, were lawful as a reasonable exercise of presidential power to protect the national security. The District Court, holding the surveillances violative of the Fourth Amendment, issued an order for disclosure of the overheard conversations, which the Court of Appeals upheld. Title III of the Omnibus Crime Control and Safe Streets Act, which authorizes court-approved electronic surveillance for specified crimes, contains a provision in 18 U.S.C. § 2511 (3) that nothing in that law limits the President's constitutional power to protect against the overthrow of the Government or against "any other clear and present danger to the structure or existence of the Government." The Government relies on § 2511(3) in support of its contention that "in excepting national security surveillances from the Act's warrant requirement, Congress recognized the President's authority to conduct such surveillances without prior judicial approval."
Held:
2. The Fourth Amendment (which shields private speech from unreasonable surveillance) requires prior judicial approval for the type of domestic security surveillance involved in this case. Pp. 314-321; 323-324.
(a) The Government's duty to safeguard domestic security must be weighed against the potential danger that unreasonable surveillances pose to individual privacy and free expression. Pp. 314-315.
(b) The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security suveillances are conducted solely within the discretion of the Executive Branch, without the detached judgment of a neutral magistrate. Pp. 316-318.
(c) Resort to appropriate warrant procedure would not frustrate the legitimate purposes of domestic security searches. Pp. 318-321.
444 F.2d 651, affirmed.
POWELL, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, MARSHALL, STEWART, and BLACKMUN, JJ., joined. DOUGLAS, J., filed a concurring opinion, post, p. 324. BURGER, C.J., concurred in the result. WHITE, J., filed an opinion concurring in the judgment, post, p. 335. REHNQUIST, J., took no part in the consideration or decision of the case. [p299]
TOP
Opinion
POWELL, J., Opinion of the Court
MR. JUSTICE POWELL delivered the opinion of the Court.
The issue before us is an important one for the people of our country and their Government. It involves the delicate question of the President's power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval. Successive Presidents for more than one-quarter of a century have authorized such surveillance in varying degrees, [n1] without guidance from the Congress or a definitive decision of this Court. This case brings the issue here for the first time. Its resolution is a matter of national concern, requiring sensitivity both to the Government's right to protect itself from unlawful subversion and attack and to the citizen's right to be secure in his privacy against unreasonable Government intrusion.
This case arises from a criminal proceeding in the United States District Court for the Eastern District of Michigan, in which the United States charged three defendants with conspiracy to destroy Government property in violation of 18 U.S.C. § 371 . One of the defendants, Plamondon, was charged with the dynamite bombing of an office of the Central Intelligence Agency in Ann Arbor, Michigan.
During pretrial proceedings, the defendants moved to compel the United States to disclose certain electronic [p300] surveillance information and to conduct a hearing to determine whether this information "tainted" the evidence on which the indictment was based or which the Government intended to offer at trial. In response, the Government filed an affidavit of the Attorney General, acknowledging that its agents had overheard conversations in which Plamondon had participated. The affidavit also stated that the Attorney General approved the wiretaps to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government. [n2] The logs of the surveillance [p301] were filed in a sealed exhibit for in camera inspection by the District Court.
On the basis of the Attorney General's affidavit and the sealed exhibit, the Government asserted that the surveillance was lawful, though conducted without prior judicial approval, as a reasonable exercise of the President's power (exercised through the Attorney General) to protect the national security. The District Court held that the surveillance violated the Fourth Amendment, and ordered the Government to make full disclosure to Plamondon of his overheard conversations. 321 F.Supp. 1074 (ED Mich.1971).
The Government then filed in the Court of Appeals for the Sixth Circuit a petition for a writ of mandamus to set aside the District Court order, which was stayed pending final disposition of the case. After concluding that it had jurisdiction, [n3] that court held that the surveillance was unlawful, and that the District Court had properly required disclosure of the overheard conversations, 444 F.2d 651 (1971). We granted certiorari, 403 U.S. 930 .
I
Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510 -2520, authorizes the use of electronic surveillance for classes of crimes carefully [p302] specified in 18 U.S.C. § 2516 . Such surveillance is subject to prior court order. Section 2518 sets forth the detailed and particularized application necessary to obtain such an order, as well as carefully circumscribed conditions for its use. The Act represents a comprehensive attempt by Congress to promote more effective control of crime while protecting the privacy of individual thought and expression. Much of Title III was drawn to meet the constitutional requirements for electronic surveillance enunciated by this Court in Berger v. New York, 388 U.S. 41 "] 388 U.S. 41 (1967), and 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967).
Together with the elaborate surveillance requirements in Title III, there is the following proviso, 18 U.S.C. § 2511 (3):
Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605 ) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, [p303] or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power. (Emphasis supplied.)
The Government relies on § 2511(3). It argues that, in excepting national security surveillances from the Act's warrant requirement, Congress recognized the President's authority to conduct such surveillances without prior judicial approval.
Brief for United States 7, 28. The section thus is viewed as a recognition or affirmance of a constitutional authority in the President to conduct warrantless domestic security surveillance such as that involved in this case.
We think the language of § 2511(3), as well as the legislative history of the statute, refutes this interpretation. The relevant language is that:
Nothing contained in this chapter . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect . . .
against the dangers specified. At most, this is an implicit recognition that the President does have certain powers in the specified areas. Few would doubt this, as the section refers -- among other things -- to protection "against actual or potential attack or other hostile acts of a foreign power." But so far as the use of the President's electronic surveillance power is concerned, the language is essentially neutral.
Section 2511(3) certainly confers no power, as the language is wholly inappropriate for such a purpose. It merely provides that the Act shall not be interpreted to limit or disturb such power as the President may have under the Constitution. In short, Congress simply left presidential powers where it found them. This view is reinforced by the general context of Title III. Section 2511(1) broadly prohibits the use of electronic [p304] surveillance "[e]xcept as otherwise specifically provided in this chapter." Subsection (2) thereof contains four specific exceptions. In each of the specified exceptions, the statutory language is as follows: "It shall not be unlawful . . . to intercept" the particular type of communication described. [n4]
The language of subsection (3), here involved, is to be contrasted with the language of the exceptions set forth in the preceding subsection. Rather than stating that warrantless presidential uses of electronic surveillance "shall not be unlawful," and thus employing the standard language of exception, subsection (3) merely disclaims any intention to "limit the constitutional power of the President."
The express grant of authority to conduct surveillances is found in § 2516, which authorizes the Attorney General to make application to a federal judge when surveillance may provide evidence of certain offenses. These offenses are described with meticulous care and specificity.
Where the Act authorizes surveillance, the procedure to be followed is specified in § 2518. Subsection (1) thereof requires application to a judge of competent jurisdiction for a prior order of approval, and states in detail the information required in such application. [n5] [p305] Subsection (3) prescribes the necessary elements of probable cause which the judge must find before issuing an order authorizing an interception. Subsection (4) sets forth the required contents of such an order. [p306] Subsection (5) sets strict time limits on an order. Provision is made in subsection (7) for "an emergency situation" found to exist by the Attorney General (or by the principal prosecuting attorney of a State) "with respect to conspiratorial activities threatening the national security interest." In such a situation, emergency surveillance may be conducted "if an application for an order approving the interception is made . . . within forty-eight hours." If such an order is not obtained, or the application therefor is denied, the interception is deemed to be a violation of the Act.
In view of these and other interrelated provisions delineating permissible interceptions of particular criminal activity upon carefully specified conditions, it would have been incongruous for Congress to have legislated with respect to the important and complex area of national security in a single brief and nebulous paragraph. This would not comport with the sensitivity of the problem involved, or with the extraordinary care Congress exercised in drafting other sections of the Act. We therefore think the conclusion inescapable that Congress only intended to make clear that the Act simply did not legislate with respect to national security surveillances. [n6]
The legislative history of § 2511(3) supports this interpretation. Most relevant is the colloquy between Senators Hart, Holland, and McClellan on the Senate floor:
Mr. HOLLAND. . . . The section [2511(3)] from which the Senator [Hart] has read does not affirmatively [p307] give any power. . . . We are not affirmatively conferring any power upon the President. We are simply saying that nothing herein shall limit such power as the President has under the Constitution. . . . We certainly do not grant him a thing.
There is nothing affirmative in this statement.
Mr. McCLELLAN. Mr. President, we make it understood that we are not trying to take anything away from him.
Mr. HOLLAND. The Senator is correct.
Mr. HART. Mr. President, there is no intention here to expand by this language a constitutional power. Cleary we could not do so.
Mr. McCLELLAN. Even though intended, we could not do so.
Mr. HART. . . . However, we are agreed that this language should not be regarded as intending to grant any authority, including authority to put a bug on, that the President does not have now.
In addition, Mr. President, as I think our exchange makes clear, nothing in section 2511(3) even attempts to define the limits of the President's national security power under present law, which I have always found extremely vague. . . . Section 2511(3) merely says that, if the President has such a power, then its exercise is in no way affected by title III. [n7]
One could hardly expect a clearer expression of congressional neutrality. The debate above explicitly indicates that nothing in § 2511(3) was intended to expand or to contract or to define whatever presidential surveillance powers existed in matters affecting the national security. If we could accept the Government's characterization of § 2511(3) as a congressionally prescribed exception to the general requirement of a warrant, it would be necessary to consider the question of whether the surveillance in this case came within the exception, and, if so, whether the statutory exception was itself constitutionally valid. But viewing § 2511(3) as a congressional disclaimer and expression of neutrality, we hold that the statute is not the measure of the executive authority asserted in this case. Rather, we must look to the constitutional powers of the President.
II
It is important at the outset to emphasize the limited nature of the question before the Court. This case raises no constitutional challenge to electronic surveillance as specifically authorized by Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Nor is there any question or doubt as to the necessity of obtaining a warrant in the surveillance of crimes unrelated to the national security interest. Katz v. United States, 389 U.S. 347 "] 389 U.S. 347 (1967); 389 U.S. 347 (1967); Berger v. New York, 388 U.S. 41 (1967). Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were [p309] "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government" (emphasis supplied). There is no evidence of any involvement, directly or indirectly, of a foreign power. [n8]
Our present inquiry, though important, is therefore a narrow one. It addresses a question left open by Katz, supra, at 358 n. 23:
Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security. . . .
The determination of this question requires the essential Fourth Amendment inquiry into the "reasonableness" of the search and seizure in question, and the way in which that "reasonableness" derives content and meaning [p310] through reference to the warrant clause. Coolidge v. New Hampshire, 403 U.S. 443 , 473-484 (1971).
We begin the inquiry by noting that the President of the United States has the fundamental duty, under Art. II, § 1, of the Constitution, to "preserve, protect and defend the Constitution of the United States." Implicit in that duty is the power to protect our Government against those who would subvert or overthrow it by unlawful means. In the discharge of this duty, the President -- through the Attorney General -- may find it necessary to employ electronic surveillance to obtain intelligence information on the plans of those who plot unlawful acts against the Government. [n9] The use of such surveillance in internal security cases has been sanctioned more or less continuously by various Presidents and Attorneys General since July, 1946. [n10] [p311] Herbert Brownell, Attorney General under President Eisenhower, urged the use of electronic surveillance both in internal and international security matters on the grounds that those acting against the Government turn to the telephone to carry on their intrigue. The success of their plans frequently rests upon piecing together shreds of information received from many sources and many nests. The participants in the conspiracy are often dispersed and stationed in various strategic positions in government and industry throughout the country. [n11]
Though the Government and respondents debate their seriousness and magnitude, threats and acts of sabotage against the Government exist in sufficient number to justify investigative powers with respect to them. [n12] The covertness and complexity of potential unlawful conduct [p312] against the Government and the necessary dependency of many conspirators upon the telephone make electronic surveillance an effective investigatory instrument in certain circumstances. The marked acceleration in technological developments and sophistication in their use have resulted in new techniques for the planning, commission, and concealment of criminal activities. It would be contrary to the public interest for Government to deny to itself the prudent and lawful employment of those very techniques which are employed against the Government and its law-abiding citizens.
It has been said that "[t]he most basic function of any government is to provide for the security of the individual and of his property." Miranda v. Arizona, 384 U.S. 436 , 539 (1966) (WHITE, J., dissenting). And unless Government safeguards its own capacity to function and to preserve the security of its people, society itself could become so disordered that all rights and liberties would be endangered. As Chief Justice Hughes reminded us in Cox v. New Hampshire, 312 U.S. 569 , 574 (1941):
Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.
But a recognition of these elementary truths does not make the employment by Government of electronic surveillance a welcome development -- even when employed with restraint and under judicial supervision. There is, understandably, a deep-seated uneasiness and apprehension that this capability will be used to intrude upon cherished privacy of law-abiding citizens. [n13] We [p313] look to the Bill of Rights to safeguard this privacy. Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, its broader spirit now shields private speech from unreasonable surveillance. Katz v. United States, supra; Berger v. New York, supra; Silverman v. United States, 365 U.S. 505 (1961). Our decision in Katz refused to lock the Fourth Amendment into instances of actual physical trespass. Rather, the Amendment governs
not only the seizure of tangible items, but extends as well to the recording of oral statements . . . without any "technical trespass under . . . local property law."
National security cases, moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of "ordinary" crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech.
Historically, the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure [p314] power,
Marcus v. Search Warrant, 367 U.S. 717 , 724 (1961). History abundantly documents the tendency of Government -- however benevolent and benign its motive -- to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. Senator Hart addressed this dilemma in the floor debate on § 2511(3):
The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.
III
As the Fourth Amendment is not absolute in its terms, our task is to examine and balance the basic values at stake in this case: the duty of Government [p315] to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression. If the legitimate need of Government to safeguard domestic security requires the use of electronic surveillance, the question is whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken. We must also ask whether a warrant requirement would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow directed against it.
Though the Fourth Amendment speaks broadly of "unreasonable searches and seizures," the definition of "reasonableness" turns, at least in part, on the more specific commands of the warrant clause. Some have argued that "[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable," United States v. Rabinowitz, 339 U.S. 56 , 66 (1950). [n16] This view, however, overlooks the second clause of the Amendment. The warrant clause of the Fourth Amendment is not dead language. Rather, it has been
Coolidge v. New Hampshire, 403 U.S. at 481. See also United States v. Rabinowitz, supra, at 68 (Frankfurter, J., dissenting); Davis v. United States, 328 U.S. 582 , 604 (1946) (Frankfurter, J., dissenting).
Over two centuries ago, Lord Mansfield held that common law principles prohibited warrants that ordered the arrest of unnamed individuals who the officer might conclude were guilty of seditious libel. "It is not fit," said Mansfield,
that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer.
Leach v. Three of the King's Messengers, 19 How.St.Tr. 1001, 1027 (1765).
Lord Mansfield's formulation touches the very heart of the Fourth Amendment directive: that, where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises or conversation. Inherent in the concept of a warrant is its issuance by a "neutral and detached magistrate." Coolidge v. New Hampshire, supra, at 453; Katz v. United States, supra, at 356. The further requirement of "probable cause" instructs the magistrate that baseless searches shall not proceed.
These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive [p317] Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359-360 (DOUGLAS, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech. [n17]
It may well be that, in the instant case, the Government's surveillance of Plamondon's conversations was a reasonable one which readily would have gained prior judicial approval. But this Court
has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end.
Katz, supra, at 356-357. The Fourth Amendment contemplates a prior judicial judgment, [n18] not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government. Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, 49 A.B.A.J. 943-944 (1963). The independent check upon executive discretion is not [p318] satisfied, as the Government argues, by "extremely limited" post-surveillance judicial review. [n19] Indeed, post-surveillance review would never reach the surveillances which failed to result in prosecutions. Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights. Beck v. Ohio, 379 U.S. 89 , 96 (1964).
It is true that there have been some exceptions to the warrant requirement. Chimel v. California, 395 U.S. 752 (1969); Terry v. Ohio, 392 U.S. 1 (1968); McDonald v. United States, 335 U.S. 451 (1948); Carroll v. United States, 267 U.S. 132 (1925). But those exceptions are few in number, and carefully delineated, Katz, supra, at 357; in general, they serve the legitimate needs of law enforcement officers to protect their own wellbeing and preserve evidence from destruction. Even while carving out those exceptions, the Court has reaffirmed the principle that the "police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure," Terry v. Ohio, supra, at 20; Chimel v. California, supra, at 762.
The Government further insists that courts
as a practical matter would have neither the knowledge nor the techniques necessary to determine whether there was probable cause to believe that surveillance was necessary to protect national security.
These security problems, the Government contends, involve "a large number of complex and subtle factors" beyond the competence of courts to evaluate. Reply Brief for United States 4.
As a final reason for exemption from a warrant requirement, the Government believes that disclosure to a magistrate of all or even a significant portion of the information involved in domestic security surveillances
would create serious potential dangers to the national security and to the lives of informants and agents. . . . Secrecy is the essential ingredient in intelligence gathering; requiring prior judicial authorization would create a greater "danger of leaks . . . because, in addition to the judge, you have the clerk, the stenographer and some other officer like a law assistant or bailiff who may be apprised of the nature" of the surveillance.
Brief for United States 24-25.
These contentions in behalf of a complete exemption from the warrant requirement, when urged on behalf of the President and the national security in its domestic implications, merit the most careful consideration. We certainly do not reject them lightly, especially at a time of worldwide ferment and when civil disorders in this country are more prevalent than in the less turbulent [p320] periods of our history. There is, no doubt, pragmatic force to the Government's position.
But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case, we hold that this requires an appropriate prior warrant procedure.
We cannot accept the Government's argument that internal security matters are too subtle and complex for judicial evaluation. Courts regularly deal with the most difficult issues of our society. There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases. Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of "ordinary crime." If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.
Nor do we believe prior judicial approval will fracture the secrecy essential to official intelligence gathering. The investigation of criminal activity has long [p321] involved imparting sensitive information to judicial officers who have respected the confidentialities involved. Judges may be counted upon to be especially conscious of security requirements in national security cases. Title III of the Omnibus Crime Control and Safe Streets Act already has imposed this responsibility on the judiciary in connection with such crimes as espionage, sabotage, and treason, §§ 2516(1)(a) and (c), each of which may involve domestic as well as foreign security threats. Moreover, a warrant application involves no public or adversary proceedings: it is an ex parte request before a magistrate or judge. Whatever security dangers clerical and secretarial personnel may pose can be minimized by proper administrative measures, possibly to the point of allowing the Government itself to provide the necessary clerical assistance.
Thus, we conclude that the Government's concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values. Nor do we think the Government's domestic surveillance powers will be impaired to any significant degree. A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review. By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur.
IV
We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion [p322] as to, the issues which may be involved with respect to activities of foreign powers or their agents. [n20] Nor does our decision rest on the language of § 2511(3) or any other section of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. That Act does not attempt to define or delineate the powers of the President to meet domestic threats to the national security.
Moreover, we do not hold that the same type of standards and procedures prescribed by Title III are necessarily applicable to this case. We recognize that domestic security surveillance may involve different policy and practical considerations from the surveillance of "ordinary crime." The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. The exact targets of such surveillance may be more difficult to identify than in surveillance operations against many types of crime specified in Title III. Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government's preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime.
Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment [p323] if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection. As the Court said in Camara v. Municipal Court, 387 U.S. 523 , 534-535 (1967):
In cases in which the Fourth Amendment requires that a warrant to search be obtained, "probable cause" is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness. . . . In determining whether a particular inspection is reasonable -- and thus in determining whether there is probable cause to issue a warrant for that inspection -- the need for the inspection must be weighed in terms of these reasonable goals of code enforcement.
It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of § 2518, but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e.g., the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in § 2518.
V
As the surveillance of Plamondon's conversations was unlawful, because conducted without prior judicial approval, the courts below correctly held that Alderman v. United States, 394 U.S. 165 (1969), is controlling, and that it requires disclosure to the accused of his own impermissibly intercepted conversations. As stated in Alderman,
the trial court can and should, where appropriate, place a defendant and his counsel under enforceable orders against unwarranted disclosure of the materials which they may be entitled to inspect.
The judgment of the Court of Appeals is hereby
Affirmed.
THE CHIEF JUSTICE concurs in the result.
MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.
----MacCormack note: I’ve moved the footnotes for the majority opinion down, after the concurring opinion of Douglas. Read Douglas, but the footnotes are an optional read, as is the concurring opinion of White (it’s narrow).
TOP
Concurrence
DOUGLAS, J., Concurring Opinion
MR. JUSTICE DOUGLAS, concurring.
While I join in the opinion of the Court, I add these words in support of it.
This is an important phase in the campaign of the police and intelligence agencies to obtain exemptions from the Warrant Clause of the Fourth Amendment. For, due to the clandestine nature of electronic eavesdropping, the need is acute for placing on the Government [p325] the heavy burden to show that "exigencies of the situation [make its] course imperative." [n1] Other abuses, such as the search incident to arrest, have been partly deterred by the threat of damage actions against offending officers, [n2] the risk of adverse publicity, or the possibility of reform through the political process. These latter safeguards, however, are ineffective against lawless wiretapping and "bugging" of which their victims are totally unaware. Moreover, even the risk of exclusion of tainted evidence would here appear to be of negligible deterrent value, inasmuch as the United States frankly concedes that the primary purpose of these searches is to fortify its intelligence collage, rather than to accumulate evidence to support indictments and convictions. If the Warrant Clause were held inapplicable here, then the federal intelligence machine would literally enjoy unchecked discretion.
Here, federal agents wish to rummage for months on end through every conversation, no matter how intimate or personal, carried over selected telephone lines, simply to seize those few utterances which may add to their sense of the pulse of a domestic underground.
We are told that one national security wiretap lasted for 14 months and monitored over 900 conversations. Senator Edward Kennedy found recently that "warrantless devices accounted for an average of 78 to 209 days of listening per device, as compared with a 13-day per device average for those devices installed under court order." [n3] He concluded that the Government's [p326] revelations posed
the frightening possibility that the conversations of untold thousands of citizens of this country are being monitored on secret devices which no judge has authorized and which may remain in operation for months and perhaps years at a time. [n4]
Even the most innocent and random caller who uses or telephones into a tapped line can become a flagged number in the Government's data bank. See Laird v. Tatum, 1971 Term, No. 71-288.
Such gross invasions of privacy epitomize the very evil to which the Warrant Clause was directed. This Court has been the unfortunate witness to the hazards of police intrusions which did not receive prior sanction by independent magistrates. For example, in Weeks v. United States, 232 U.S. 383 ; Mapp v. Ohio, 367 U.S. 643 ; and Chimel v. California, 395 U.S. 752 , entire homes were ransacked pursuant to warrantless searches. Indeed, in Kremen v. United States, 353 U.S. 346 , the entire contents of a cabin, totaling more than 800 items (such as "1 Dish Rag") [n5] were seized incident to an arrest of its occupant and were taken to San Francisco for study by FBI agents. In a similar case, Von Cleef v. New [p327] Jersey, 395 U.S. 814 , police, without a warrant, searched an arrestee's house for three hours, eventually seizing
several thousand articles, including books, magazines, catalogues, mailing lists, private correspondence (both open and unopened), photographs, drawings, and film.
Id. at 815. In Silverthorne Lumber Co. v. United States, 251 U.S. 385 , federal agents "without a shadow of authority" raided the offices of one of the petitioners (the proprietors of which had earlier been jailed) and "made a clean sweep of all the books, papers and documents found there." Justice Holmes, for the Court, termed this tactic an "outrage." Id. at 390, 391. In Stanford v. Texas, 379 U.S. 476 , state police seized more than 2,000 items of literature, including the writings of Mr. Justice Black, pursuant to a general search warrant issued to inspect an alleged subversive's home.
That "domestic security" is said to be involved here does not draw this case outside the mainstream of Fourth Amendment law. Rather, the recurring desire of reigning officials to employ dragnet techniques to intimidate their critics lies at the core of that prohibition. For it was such excesses as the use of general warrants and the writs of assistance that led to the ratification of the Fourth Amendment. In Entick v. Carrington, 19 How.St.Tr. 1029, 95 Eng.Rep. 807, decided in 1765, one finds a striking parallel to the executive warrants utilized here. The Secretary of State had issued general executive warrants to his messengers authorizing them to roam about and to seize libelous material and libellants of the sovereign. Entick, a critic of the Crown, was the victim of one such general search during which his seditious publications were impounded. He brought a successful damage action for trespass against the messengers. The verdict was sustained on appeal. Lord Camden wrote that, if such sweeping tactics were validated, then
Id. at 1063. In a related and similar proceeding, Huckle v. Money, 2 Wils. K.B. 206, 207, 95 Eng.Rep. 768, 769 (1763), the same judge who presided over Entick's appeal held for another victim of the same despotic practice, saying "[t]o enter a man's house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition. . . ." See also Wilkes v. Wood, 19 How.St.Tr. 1153, 98 Eng.Rep. 489 (1763). As early as Boyd v. United States, 116 U.S. 616 , 626, and as recently as Stanford v. Texas, supra, at 485-486; Berger v. New York, 388 U.S. 41 , 49-50; and Coolidge v. New Hampshire, supra, at 455 n. 9, the tyrannical invasions described and assailed in Entick, Huckle, and Wilkes, practices which also were endured by the colonists, [n6] have been recognized [p329] as the primary abuses which ensured the Warrant Clause a prominent place in our Bill of Rights. See J. Landynski, Search and Seizure and the Supreme Court 288 (1966). N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 478 (1937); Note, Warrantless Searches In Light of Chimel: A Return To The Original Understanding, 11 Ariz.L.Rev. 457, 460 476 (1969).
As illustrated by a flood of cases before us this Term, e.g., Laird v. Tatum, No. 71-288; Gelbard v. United States, No. 71-110; United States v. Egan, No. 71-263; United States v. Caldwell, No. 757; United States v. Gravel, No. 71-1026; Kleindienst v. Mandel, No. 71-16, we are currently in the throes of another national seizure of paranoia, resembling the hysteria which surrounded the Alien and Sedition Acts, the Palmer Raids, and the McCarthy era. Those who register dissent or who petition their governments for redress are subjected to scrutiny by grand juries, [n7] by the FBI, [n8] or even by the military. [n9] Their associates are interrogated. [p330] Their home are bugged and their telephones are wiretapped. They are befriended by secret government informers. [n10] Their patriotism and loyalty are questioned. [n11] [p331] Senator Sam Ervin, who has chaired hearings on military surveillance of civilian dissidents, warns that "it is not an exaggeration to talk in terms of hundreds of thousands of . . . dossiers." [n12] Senator Kennedy, as mentioned supra, found "the frightening possibility that the conversations of untold thousands are being monitored on secret devices." More than our privacy is implicated. Also at stake is the reach of the Government's power to intimidate its critics.
When the Executive attempts to excuse these tactics as essential to its defense against internal subversion, we are obliged to remind it, without apology, of this Court's long commitment to the preservation of the Bill of Rights from the corrosive environment of precisely such expedients. [n13] [p332] As Justice Brandeis said, concurring in Whitney v. California, 274 U.S. 357 , 377:
Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty.
Chief Justice Warren put it this way in United States v. Robel, 389 U.S. 258 , 264:
[T]his concept of "national defense" cannot be deemed an end in itself, justifying any . . . power designed to promote such a goal. Implicit in the term "national defense" is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which [make] the defense of the Nation worthwhile.
The Warrant Clause has stood as a barrier against intrusions by officialdom into the privacies of life. But if that barrier were lowered now to permit suspected subversives' most intimate conversations to be pillaged then why could not their abodes or mail be secretly searched by the same authority? To defeat so terrifying a claim of inherent power, we need only stand by the enduring values served by the Fourth Amendment. As we stated last Term in Coolidge v. New Hampshire, 403 U.S. 443 , 455:
We have as much or more to fear from the erosion of our sense of privacy and independence by the omnipresent electronic ear of the Government as we do from the likelihood that fomenters of domestic upheaval will modify our form of governing. [n14] [p334]
1.
See n. 10, infra.
2.
The Attorney General's affidavit reads as follows:
JOHN N. MITCHELL being duly sworn deposes and says:
1. I am the Attorney General of the United States.
2. This affidavit is submitted in connection with the Government's opposition to the disclosure to the defendant Plamondon of information concerning the overhearing of his conversations which occurred during the course of electronic surveillances which the Government contends were legal.
3. The defendant Plamondon has participated in conversations which were overheard by Government agents who were monitoring wiretaps which were being employed to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government. The records of the Department of Justice reflect the installation of these wiretaps had been expressly approved by the Attorney General.
4. Submitted with this affidavit is a sealed exhibit containing the records of the intercepted conversations, a description of the premises that were the subjects of surveillances, and copies of the memoranda reflecting the Attorney General's express approval of the installation of the surveillances.
5. I certify that it would prejudice the national interest to disclose the particular facts concerning these surveillances other than to the court in camera. Accordingly, the sealed exhibit referred to herein is being submitted solely for the court's in camera inspection, and a copy of the sealed exhibit is not being furnished to the defendants. I would request the court, at the conclusion of its hearing on this matter, to place the sealed exhibit in a sealed envelope and return it to the Department of Justice, where it will be retained under seal so that it may be submitted to any appellate court that may review this matter.
3.
Jurisdiction was challenged before the Court of Appeals on the ground that the District Court's order was interlocutory, and not appealable under 28 U.S.C. § 1291 . On this issue, the court correctly held that it did have jurisdiction, relying upon the All Writs Act, 28 U.S.C. § 1651 and cases cited in its opinion, 444 F.2d at 655-656. No attack was made in this Court as to the appropriateness of the writ of mandamus procedure.
4.
These exceptions relate to certain activities of communication common carriers and the Federal Communications Commission, and to specified situations where a party to the communication has consented to the interception.
5.
Title 18 U.S. C. § 2518, subsection (1), reads as follows:
§ 2518. Procedure for interception of wire or oral communications
(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall include the following information:
(a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application;
(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted;
(c) a full and complete statement as to whether or not other investigative procedures have been tried and failed, or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
(d) a statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
(e) a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application; and
(f) where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.
6.
The final sentence of § 2511(3) states that the contents of an interception
by authority of the President in the exercise of the foregoing powers may be received in evidence . . . only where such interception was reasonable. . . .
This sentence seems intended to assure that, when the President conducts lawful surveillance -- pursuant to whatever power he may possess -- the evidence is admissible.
7.
114 Cong.Rec. 14751. Senator McClellan was the sponsor of the bill. The above exchange constitutes the only time that § 2511(3) was expressly debated on the Senate or House floor. The Report of the Senate Judiciary Committee is not so explicit as the exchange on the floor, but it appears to recognize that, under § 2511(3), the national security power of the President -- whatever it may be -- "is not to be deemed disturbed." S.Rep. No. 1097, 90th Cong., 2d Sess., 94 (1968). See also The "National Security Wiretap": Presidential Prerogative or Judicial Responsibility, where the author concludes that, in § 2511(3),
Congress took what amounted to a position of neutral noninterference on the question of the Constitutionality of warrantless national security wiretaps authorized by the President.
45 S. Cal.L.Rev. 888, 889 (1972).
8.
Section 2511(3) refers to "the constitutional power of the President" in two types of situations: (i) where necessary to protect against attack, other hostile acts or intelligence activities of a "foreign power"; or (ii) where necessary to protect against the overthrow of the Government or other clear and present danger to the structure or existence of the Government. Although both of the specified situations are sometimes referred to as "national security" threats, the term "national security" is used only in the first sentence of § 2511(3) with respect to the activities of foreign powers. This case involves only the second sentence of § 2511(3), with the threat emanating -- according to the Attorney General's affidavit -- from "domestic organizations." Although we attempt no precise definition, we use the term "domestic organization" in this opinion to mean a group or organization (whether formally or informally constituted) composed of citizens of the United States and which has no significant connection with a foreign power, its agents or agencies. No doubt there are cases where it will be difficult to distinguish between "domestic" and "foreign" unlawful activities directed against the Government of the United States where there is collaboration in varying degrees between domestic groups or organizations and agents or agencies of foreign powers. But this is not such a case.
9.
Enactment of Title III reflects congressional recognition of the importance of such surveillance in combatting various types of crime. Frank S. Hogan, District Attorney for New York County for over 25 years, described telephonic interception, pursuant to court order, as "the single most valuable weapon in law enforcement's fight against organized crime." 117 Cong.Rec. 14051. The "Crime Commission" appointed by President Johnson noted that
[t]he great majority of law enforcement officials believe that the evidence necessary to bring criminal sanctions to bear consistently on the higher echelons of organized crime will not be obtained without the aid of electronic surveillance techniques. They maintain these techniques are indispensable to develop adequate strategic intelligence concerning organized crime, to set up specific investigations, to develop witnesses, to corroborate their testimony, and to serve as substitutes for them -- each a necessary step in the evidence-gathering process in organized crime investigations and prosecutions.
Report by the President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 201 (1967).
10.
In that month, Attorney General Tom Clark advised President Truman of the necessity of using wiretaps "in cases vitally affecting the domestic security." In May, 1940, President Roosevelt had authorized Attorney General Jackson to utilize wiretapping in matters "involving the defense of the nation," but it is questionable whether this language was meant to apply to solely domestic subversion. The nature and extent of wiretapping apparently varied under different administrations and Attorneys General, but, except for the sharp curtailment under Attorney General Ramsey Clark in the latter years of the Johnson administration, electronic surveillance has been used both against organized crime and in domestic security cases at least since the 1946 memorandum from Clark to Truman. Brief for United States 16-18; Brief for Respondents 51-56; 117 Cong.Rec. 14056.
11.
Brownell, The Public Security and Wire Tapping, 39 Cornell L.Q.195, 202 (1954). See also Rogers, The Case For Wire Tapping, 63 Yale L.J. 792 (1954).
12.
The Government asserts that there were 1,562 bombing incidents in the United States from January 1, 1971, to July 1, 1971, most of which involved Government-related facilities. Respondents dispute these statistics as incorporating many frivolous incidents, as well as bombings against nongovernmental facilities. The precise level of this activity, however, is not relevant to the disposition of this case. Brief for United States 18; Brief for Respondents 26-29; Reply Brief for United States 13.
13.
Professor Alan Westin has written on the likely course of future conflict between the value of privacy and the "new technology" of law enforcement. Much of the book details techniques of physical and electronic surveillance and such possible threats to personal privacy as psychological and personality testing and electronic information storage and retrieval. Not all of the contemporary threats to privacy emanate directly from the pressures of crime control. Privacy and Freedom (1967).
14.
Though the total number of intercepts authorized by state and federal judges pursuant to Tit. III of the 1968 Omnibus Crime Control and Safe Streets Act was 597 in 1970, each surveillance may involve interception of hundreds of different conversations. The average intercept in 1970 involved 44 people and 655 conversations, of which 295 or 45% were incriminating. 117 Cong.Rec. 14052.
15.
114 Cong.Rec. 14750. The subsequent assurances, quoted in part I of the opinion, that § 2511(3) implied no statutory grant, contraction, or definition of presidential power eased the Senator's misgivings.
16.
This view has not been accepted. In Chimel v. California, 395 U.S. 752 (1969), the Court considered the Government's contention that the search be judged on a general "reasonableness" standard, without reference to the warrant clause. The Court concluded that argument was
founded on little more than a subjective view regarding the acceptability of certain sorts of police conduct, and not on considerations relevant to Fourth Amendment interests. Under such an unconfined analysis, Fourth Amendment protection in this area would approach the evaporation point.
Id. at 764-765.
17.
N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 79-105 (1937).
18.
We use the word "judicial" to connote the traditional Fourth Amendment requirement of a neutral and detached magistrate.
19.
The Government argues that domestic security wiretaps should be upheld by courts in post-surveillance review
[u]nless it appears that the Attorney General's determination that the proposed surveillance relates to a national security matter is arbitrary and capricious, i.e., that it constitutes a clear abuse of the broad discretion that the Attorney General has to obtain all information that will be helpful to the President in protecting the Government . . .
against the various unlawful acts in § 2511(3). Brief for United States 22.
20.
See n. 8, supra. For the view that warrantless surveillance, though impermissible in domestic security cases, may be constitutional where foreign powers are involved, see United States v. Smith, 321 F.Supp. 424, 425-426 (CD Cal.1971); and American Bar Association Project on Standards for Criminal Justice, Electronic Surveillance 120, 121 (Approved Draft 1971, and Feb.19-71 Supp. 11). See also United States v. Clay, 430 F.2d 165 (CA5 1970).
21.
We think it unnecessary at this time and on the facts of this case to consider the arguments advanced by the Government for a reexamination of the basis and cope of the Court' decision in Alderman.
APPENDIX TO OPINION OF DOUGLAS, J., CONCURRING FEDERAL WIRETAPPING AND BUGGING 1969-1970
Court Ordered Executive Ordered
Devices Devices
Days in Use
Days in Minimum Maximum
Year Number Use Number (Rounded) (Rounded)
1969 30 462 94 8,100 20,800
1970 180 2,363 113 8,100 22,600
Ratio of Days Used Average Days in Use
Executive Ordered: Per Device
Court Ordered Court Executive Ordered
Ordered Devices
Year Minimum Maximum Devices Minimum Maximum
1969 17.5* 45.0* 15.4 86.2 221.3
1970 3.4 9.6 13.1 71.7 200.0
* Ratios for 1969 are less meaningful than those for 1970, since court-ordered surveillance program was in its initial stage in 1969.
Source:
(1) Letter from Assistant Attorney General Robert Mardian to Senator Edward M. Kennedy, March 1, 1971. Source figures withheld at request of Justice Department.
(2) Reports of Administrative Office of U.S. Courts for 1969 and 1970. [p335]
1. Coolidge v. New Hampshire, 403 U.S. 443 , 455; McDonald v. United States, 335 U.S. 451 , 456; Chimel v. California, 395 U.S. 752 ; United States v. Jeffers, 342 U.S. 48 , 51.
2. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 .
3. Letter from Senator Edward Kennedy to Members of the Subcommittee on Administrative Procedure and Practice of the Senate Judiciary Committee, Dec. 17, 1971, p. 2. Senator Kennedy included in his letter a chart comparing court-ordered and department-ordered wiretapping and bugging by federal agencies. This chart is reproduced in the Appendix to this opinion. For a statistical breakdown by duration, location, and implementing agency of the 1,042 wiretap orders issued in 1971 by state and federal judges, see Administrative Office of the United States Courts, Report on Applications for Orders Authorizing or Approving the Interception of Wire or Oral Communications for 1971; The Washington Post, May 14, 1972, p. A30, col. 1 (final ed.).
4. Kennedy, supra, n. 3, at 2. See also H. Schwartz, A Report on the Costs and Benefits of Electronic Surveillance (American Civil Liberties Union 1971); Schwartz, The Legitimation of Electronic Eavesdropping: The Politics of "Law and Order," 67 Mich.L.Rev. 455 (1969).
5. For a complete itemization of the objects seized, see the Appendix to Kremen v. United States, 353 U.S. 346 , 349.
6.
On this side of the Atlantic, the argument concerning the validity of general search warrants centered around the writs of assistance which were used by customs officers for the detection of smuggled goods.
N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 51 (1937). In February, 1761, all writs expired six months after the death of George II, and Boston merchants petitioned the Superior Court in opposition to the granting of any new writs. The merchants were represented by James Otis, Jr., who later became a leader in the movement for independence.
Otis completely electrified the large audience in the court room with his denunciation of England's whole policy toward the Colonies and with his argument against general warrants. John Adams, then a young man less than twenty-six years of age and not yet admitted to the bar, was a spectator, and many years later described the scene in these oft-quoted words: "I do say in the most solemn manner that Mr. Otis's oration against the Writs of Assistance breathed into this nation the breath of life." He
was a flame of fire! Every man of a crowded audience appeared to me to go away, as I did, ready to take arms against Writs of Assistance. Then and there was the first scene of opposition to the arbitrary claims of Great Britain. Then and there, the child Independence was born. In 15 years, namely in 1776, he grew to manhood, and declared himself free.
Id. at 559.
7. See Donner & Cerruti, The Grand Jury Network: How the Nixon Administration Has Secretly Perverted A Traditional Safeguard Of Individual Rights, 214 The Nation 5 (1972). See also United States v. Caldwell, O.T. 1971, No. 70-57; United States v. Gravel, O.T. 1971, No. 71-1026; Gelbard v. United States and United States v. Egan, O.T. 1971, Nos. 71-110 and 71-263. And see N.Y. Times, July 15, 1971, p. 6, col. 1 (grand jury investigation of N.Y. Times staff which published the Pentagon Papers).
8. E.g., N.Y. Times, April 12, 1970, p. 1, col. 2 ("U.S. To Tighten Surveillance of Radicals"); N.Y. Times, Dec. 14, 1969, p. 1, col. 1 ("F.B.I.'s Informants and Bugs Collect Data On Black Panthers"); the Washington Post, May 12, 1972, p. D21, col. 5 ("When the FBI Calls, Everybody Talks"); the Washington Post, May 16, 1972, p. B15, col. 5 ("Black Activists Are FBI Targets"); the Washington Post, May 17, 1972, p. B13, col. 5 ("Bedroom Peeking Sharpens FBI Files"). And, concerning an FBI investigation of Daniel Schorr, a television correspondent critical of the Government, see N.Y. Times, Nov. 11, 1971, p. 95, col. 4; and N.Y. Times, Nov. 12, 1971, p. 13, col. 1. For the wiretapping and bugging of Dr. Martin Luther King by the FBI, see V. Navasky, Kennedy Justice 135-155 (1971). For the wiretapping of Mrs. Eleanor Roosevelt and John L. Lewis by the FBI see Theoharis & Meyer, The "National Security" Justification For Electronic Eavesdropping: An Elusive Exception, 14 Wayne L.Rev. 749, 760-761 (1968).
9. See Laird v. Tatum, O.T. 1971, No. 71-288; see also Federal Data Banks, Computers and the Bill of Rights, Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 92d Cong., 1st Sess. (1971); N.Y. Times, Feb. 29, 1972, p. 1, col. 3.
10.
Informers have been used for national security reasons throughout the twentieth century. They were deployed to combat what was perceived to be an internal threat from radicals during the early 1920's. When fears began to focus on Communism, groups thought to have some connection with the Communist Party were heavily infiltrated. Infiltration of the Party itself was so intense that one former FBI agent estimated a ratio of one informant for every 5.7 members in 1962. More recently, attention has shifted to militant anti-war and civil rights groups. In part because of support for such groups among university students throughout the country, informers seem to have become ubiquitous on campus. Some insight into the scope of the current use of informers was provided by the Media Papers, FBI documents stolen in early 1971 from a Bureau office in Media, Pennsylvania. The papers disclose FBI attempts to infiltrate a conference of war resisters at Haverford College in August, 1969, and a convention of the National Association of Black Students in June, 1970. They also reveal FBI endeavors
to recruit informers, ranging from bill collectors to apartment janitors, in an effort to develop constant surveillance in black communities and New Left organizations
[N.Y. Times, April 8, 1971, p. 22, col. 1]. In Philadelphia's black community, for instance, a whole range of buildings "including offices of the Congress of Racial Equality, the Southern Christian Leadership Conference [and] the Black Coalition" [ibid.] was singled out for surveillance by building employees and other similar informers working for the FBI.
Note, Developments In The Law -- The National Security Interest and Civil Liberties, 85 Harv.L.Rev. 1130, 1272-1273 (1972). For accounts of the impersonation of journalists by police, FBI agents and soldiers in order to gain the confidences of dissidents, see Press Freedoms Under Pressure, Report of the Twentieth Century Fund Task Force on the Government and the Press 29-34, 86-97 (1972). For the revelation of Army infiltration of political organizations and spying on Senators, Governors and Congressmen, see Federal Data Banks, Computers and the Bill of Rights, Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 92d Cong., 1st Sess. (1971) (discussed in my dissent from the denial of certiorari in Williamson v. United States, 405 U.S. 1026 ). Among the Media Papers was the suggestion by the FBI that investigation of dissidents be stepped up in order to "‘enhance the paranoia endemic in these circles and [to] further serve to get the point across there is an FBI agent behind every mailbox.'" N.Y. Times, March 25, 1971, p. 33, col. 1.
11. E.g., N.Y. Times, Feb. 8, 1972, p. 1, col. 8 (Senate peace advocates said, by presidential adviser, to be aiding and abetting the enemy).
12. Amicus curiae brief submitted by Senator Sam Ervin in Laird v. Tatum, No. 71-288, O.T. 1971, p. 8.
13. E.g., New York Times Co. v. United States, 403 U.S. 713 ; Powell v. McCormack, 395 U.S. 486 ; United States v. Robel, 389 U.S. 258 , 264; Aptheker v. Secretary of State, 378 U.S. 500 ; Baggett v. Bullitt, 377 U.S. 360 ; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 ; Duncan v. Kahanamoku, 327 U.S. 304 ; White v. Steer, 327 U.S. 304 ; De Jonge v. Oregon, 299 U.S. 353 , 365; Ex parte Milligan, 4 Wall. 2; Mitchell v. Harmony, 13 How. 115. Note, The "National Security Wiretap": Presidential Prerogative or Judicial Responsibility, 45 S.Cal.L.Rev. 888, 907-912 (1972).
14. I continue in my belief that it would be extremely difficult to write a search warrant specifically naming the particular conversations to be seized, and therefore any such attempt would amount to a general warrant, the very abuse condemned by the Fourth Amendment. As I said, dissenting in Osborn v. United States, 385 U.S. 323 , 353:
Such devices lay down a dragnet which indiscriminately sweeps in all conversations within its scope, without regard to the nature of the conversations, or the participants. A warrant authorizing such devices is no different from the general warrants the Fourth Amendment was intended to prohibit.
TOP
Concurrence
WHITE, J., Concurring Opinion
MR. JUSTICE WHITE, concurring in the judgment.
This case arises out of a two-count indictment charging conspiracy to injure and injury to Government property. Count I charged Robert Plamondon and two codefendants with conspiring with a fourth person to injure Government property with dynamite. Count II charged Plamondon alone with dynamiting and injuring Government property in Ann Arbor, Michigan. The defendants moved to compel the United States to disclose, among other things, any logs and records of electronic surveillance directed at them, at unindicted coconspirators, or at any premises of the defendants or coconspirators. They also moved for a hearing to determine whether any electronic surveillance disclosed had tainted the evidence on which the grand jury indictment was based and which the Government intended to use at trial. They asked for dismissal of the indictment if such taint were determined to exist. Opposing the motion, the United States submitted an affidavit of the Attorney General of the United States disclosing that
[t]he defendant Plamondon has participated in conversations which were overheard by Government agents who were monitoring wiretaps which were being employed to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government,
the wiretaps having been expressly approved by the Attorney General. The records of the intercepted conversations and copies of the memorandum reflecting the Attorney General's approval were submitted under seal, and solely for the Court's in camera inspection. [n1] [p336]
As characterized by the District Court, the position of the United States was that the electronic monitoring of Plamondon's conversations without judicial warrant was a lawful exercise of the power of the President to safeguard the national security. The District Court granted the motion of defendants, holding that the President had no constitutional power to employ electronic surveillance without warrant to gather information about domestic organizations. Absent probable cause and judicial authorization, the challenged wiretap infringed Plamondon's Fourth Amendment rights. The court ordered the Government to disclose to defendants the records of the monitored conversations and directed that a hearing be held to determine the existence of taint either in the indictment or in the evidence to be introduced at trial.
The Government's petition for mandamus to require the District Court to vacate its order was denied by the Court of Appeals. 444 F.2d 651 (CA6 1971). That court held that the Fourth Amendment barred warrantless electronic surveillance of domestic organizations even if at the direction of the President. It agreed with the District Court that, because the wiretaps involved were therefore constitutionally infirm, the United States must turn over to defendants the records of overheard conversations for the purpose of determining whether the Government's evidence was tainted.
I would affirm the Court of Appeals, but on the statutory ground urged by defendant respondents (Brief 115) without reaching or intimating any views with respect [p337] to the constitutional issue decided by both the District Court and the Court of Appeals.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 -2520, forbids, under pain of criminal penalties and civil actions for damages, any wiretapping or eavesdropping not undertaken in accordance with specified procedures for obtaining judicial warrants authorizing the surveillance. Section 2511(1) establishes a general prohibition against electronic eavesdropping "[e]xcept as otherwise specifically provided" in the statute. Later sections provide detailed procedures for judicial authorization of official interceptions of oral communications; when these procedures are followed, the interception is not subject to the prohibitions of § 2511(1). Section 2511(2), however, specifies other situations in which the general prohibitions of § 2511(1) do not apply. In addition, § 2511(3) provides that:
Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605 ) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents [p338] of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.
It is this subsection that lies at the heart of this case.
The defendants in the District Court moved for the production of the logs of any electronic surveillance to which they might have been subjected. The Government [p339] responded that conversations of Plamondon had been intercepted, but took the position that turnover of surveillance records was not necessary because the interception complied with the law. Clearly, for the Government to prevail, it was necessary to demonstrate, first, that the interception involved was not subject to the statutory requirement of judicial approval for wiretapping because the surveillance was within the scope of § 2511(3), and, secondly, if the Act did not forbid the warrantless wiretap, that the surveillance was consistent with the Fourth Amendment.
The United States has made no claim in this case that the statute may not constitutionally be applied to the surveillance at issue here. [n3] Nor has it denied that, to [p340] comply with the Act, the surveillance must either be supported by a warrant or fall within the bounds of the exceptions provided by § 2511(3). Nevertheless, as I read the opinions of the District Court and the Court of Appeals, neither court stopped to inquire whether the challenged interception was illegal under the statute, but proceeded directly to the constitutional issue without adverting to the time-honored rule that courts should abjure constitutional issues except where necessary to decision of the case before them. Ashwander v. Tennessee Valley Authority, 297 U.S. 288 , 346-348 (1936) (concurring opinion). Because I conclude that, on the record before us, the surveillance undertaken by the Government in this case was illegal under the statute itself, I find it unnecessary, and therefore improper, to consider or decide the constitutional questions which the courts below improvidently reached.
The threshold statutory question is simply put: was the electronic surveillance undertaken by the Government in this case a measure deemed necessary by the President to implement either the first or second branch of the exception carved out by § 2511(3) to the general requirement of a warrant?
deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.
App. 20.
Neither can I conclude from this characterization that the wiretap employed here fell within the exception recognized by the second sentence of § 2511(3), for it utterly fails to assume responsibility for the judgment that Congress demanded: that the surveillance was necessary to prevent overthrow by force or other unlawful means, or that there was any other clear and present danger to the structure or existence of the Government. The affidavit speaks only of attempts to attack or subvert; it makes no reference to force or unlawfulness; it articulates no conclusion that the attempts involved any clear and present danger to the existence or structure of the Government.
The shortcomings of the affidavit when measured against § 2511(3) are patent. Indeed, the United States, in oral argument, conceded no less. The specific inquiry put to Government counsel was: "Do you think the affidavit, standing alone, satisfies the Safe Streets Act?" The Assistant Attorney General answered "No, sir. We do not rely upon the affidavit itself. . . ." Tr. of Oral Arg. 15. [n4]
Government counsel, however, seek to save their case by reference to the in camera exhibit submitted to the [p342] District Court to supplement the Attorney General's affidavit. [n5] It is said that the exhibit includes the request for wiretap approval submitted to the Attorney General, that the request asserted the need to avert a clear and present danger to the structure and existence of the Government, and that the Attorney General endorsed his approval on the request. [n6] But I am unconvinced that the mere endorsement of the Attorney General on the request for approval submitted to him must be taken as the Attorney General's own opinion that the wiretap was necessary to avert a clear and present danger to the existence or structure of the Government [p343] when, in an affidavit later filed in court specifically characterizing the purposes of the interception and at least impliedly the grounds for his prior approval, the Attorney General said only that the tap was undertaken to secure intelligence thought necessary to protect against attempts to attack and subvert the structure of Government. If the Attorney General's approval of the interception is to be given a judicially cognizable meaning different from the meaning he seems to have ascribed to it in his affidavit filed in court, there obviously must be further proceedings in the District Court.
Moreover, I am reluctant to proceed in the first instance to examine the in camera material and either sustain or reject the surveillance as a necessary measure to avert the dangers referred to in § 2511(3). What Congress excepted from the warrant requirement was a surveillance which the President would assume responsibility for deeming an essential measure to protect against clear and present danger. No judge can satisfy this congressional requirement.
Without the necessary threshold determination, the interception is, in my opinion, contrary to the terms of the statute and subject therefore to the prohibition contained in § 2515 against the use of the fruits of the warrantless electronic surveillance as evidence at any trial. [n7]
There remain two additional interrelated reasons for not reaching the constitutional issue. First, even if it were determined that the Attorney General purported to [p344] authorize an electronic surveillance for purposes exempt from the general provisions of the Act, there would remain the issue whether his discretion was properly authorized. The United States concedes that the act of the Attorney General authorizing a warrantless wiretap is subject to judicial review to some extent, Brief for United States 21-23, and it seems improvident to proceed to constitutional questions until it is determined that the Act itself does not bar the interception here in question.
Second, and again on the assumption that the surveillance here involved fell within the exception provided by § 2511(3), no constitutional issue need be reached in this case if the fruit of the wiretap were inadmissible on statutory grounds in the criminal proceedings pending against respondent Plamondon. Section 2511(3) itself states that
[t]he contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial, hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.
(Emphasis added.) There has been no determination by the District Court that it would be reasonable to use the fruits of the wiretap against Plamondon, or that it would be necessary to do so to implement the purposes for which the tap was authorized.
My own conclusion, again, is that, as long as nonconstitutional, statutory grounds for excluding the evidence or its fruits have not been disposed of, it is improvident to reach the constitutional issue.
I would thus affirm the judgment of the Court of Appeals unless the Court is prepared to reconsider the necessity for an adversary, rather than an in camera, hearing with respect to taint. If in camera proceedings are sufficient and no taint is discerned by the judge, this case is over, whatever the legality of the tap.
1. The Attorney General's affidavit concluded:
I certify that it would prejudice the national interest to disclose the particular facts concerning these surveillances other than to the court in camera. Accordingly, the sealed exhibit referred to herein is being submitted solely for the court's in camera inspection and a copy of the sealed exhibit is not being furnished to the defendants. I would request the court, at the conclusion of its hearing on this matter, to place the sealed exhibit in a sealed envelope and return it to the Department of Justice, where it will be retained under seal so that it may be submitted to any appellate court that may review this matter.
App. 20-21.
2. I cannot agree with the majority's analysis of the import of § 2511(3). Surely, Congress meant at least that, if a court determined that in the specified circumstances the President could constitutionally intercept communications without a warrant, the general ban of § 2511(1) would not apply. But the limitation on the applicability of § 2511(1) was not open-ended; it was confined to those situations that § 2511(3) specifically described. Thus, even assuming the constitutionality of a warrantless surveillance authorized by the President to uncover private or official graft forbidden by federal statute, the interception would be illegal under § 2511(1) because it is not the type of presidential action saved by the Act by the provision of § 2511(3). As stated in the text and n. 3, infra, the United States does not claim that Congress is powerless to require warrants for surveillances that the President otherwise would not be barred by the Fourth Amendment from undertaking without a warrant.
3. See Tr. of Oral Arg. 13-14:
Q. . . . I take it from your answer that Congress could forbid the President from doing what you suggest he has the power to do in this case?
Mr. Mardian [Assistant Attorney General]: That issue is not before this Court --
Q. Well, I would -- my next question will suggest that it is. Would you say, though, that Congress could forbid the President?
Mr. Mardian: I think, under the rule announced by this court in Colony Catering, that, within certain limits, the Congress could severely restrict the power of the President in this area.
Q. Well, let's assume Congress says, then, that the Attorney General, or the President may authorize the Attorney General, in specific situations, to carry out electronic surveillance if the Attorney General certifies that there is a clear and present danger to the security of the United States?
Mr. Mardian: I think that Congress has already provided that, and --
Q. Well, would you say that Congress would have the power to limit surveillances to situations where those conditions were satisfied?
Mr. Mardian: Yes, I would -- I would concur in that, Your Honor.
A colloquy appearing in the debates on the bill, appearing at 114 Cong.Rec. 14750-14751, indicates that some Senators considered § 2511(3) as merely stating an intention not to interfere with the constitutional powers that the President might otherwise have to engage in warrantless electronic surveillance. But the Department of Justice, it was said, participated in the drafting of § 2511(3), and there is no indication in the legislative history that there was any claim or thought that the supposed powers of the President reached beyond those described in the section. In any case, it seems clear that the congressional policy of noninterference was limited to the terms of § 2511(3).
4. See also Tr. of Oral Arg. 17:
Q. . . . If all the in camera document contained was what this affidavit contained, it would not comply with the Safe Streets Act?
Mr. Mardian: I would concur in that, Your Honor.
5. The Government appears to have shifted ground in this respect. In its initial brief to this Court, the Government quoted the Attorney General's affidavit and then said, without qualification, "These were the grounds upon which the Attorney General authorized the surveillance in the present case." Brief for United States 21. Moreover, counsel for the Government stated at oral argument
that the in camera submission was not intended as a justification for the authorization, but simply [as] a proof of the fact that the authorization had been granted by the Attorney General of the United States, over his own signature.
Tr. of Oral Arg. 7.
Later at oral argument, however, the Government said:
[T]he affidavit was never intended as the basis for justifying the surveillance in question. . . . The justification, and again I suggest that it is only a partial justification, is contained in the in camera exhibit which was submitted to Judge Keith. . . . We do not rely upon the affidavit itself, but the in camera exhibit.
Tr. of Oral Arg. 115. And in its reply brief, the Government says flatly:
Those [in camera] documents, and not the affidavit, are the proper basis for determining the ground upon which the Attorney General acted.
Reply Brief for United States 9.
6. Procedures in practice at the time of the request here in issue apparently resulted in the Attorney General's merely countersigning a request which asserted a need for a wiretap. We are told that, under present procedures, the Attorney General makes an express written finding of clear and present danger to the structure and existence of the Government before he authorizes a tap. Tr. of Oral Arg. 17-18.
7.
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.
__MACOSX/Freedom, Privacy and Tech./._United%20States%20v.U.S.%20District%20(Keith)1972docx.docx
Freedom, Privacy and Tech./WarrenBrandeis.pdf
Warren and Brandeis, "The Right to Privacy"
Thus, with the recognition of the legal value of sensations, the protection against actual bodily injury was extended to prohibit mere attempts to do such injury; that is, the putting another in fear of such injury. From the action of battery grew that of assault.[1] Much later there came a qualified protection of the individual against offensive noises and odors, against dust and smoke, and excessive vibration. The law of nuisance was developed.[2] So regard for human emotions soon extended the scope of personal immunity beyond the body of the individual. His reputation, the standing among his fellow-men, was considered, and the law of slander and libel arose.[3] Man's family relations became a part of the legal conception of his life, and the alienation of a wife's affections was held remediable.[4] Occasionally the law halted, as in its refusal to recognize the intrusion by seduction upon the honor of the family. But even here the demands of society were met. A mean fiction, the action per quod servitium amisit, was resorted to, and by allowing damages for injury to the parents' feelings, an adequate remedy was ordinarily afforded.[5] Similar to the expansion of the right to life was the growth of the legal conception of property. From corporeal property arose the incorporeal rights issuing out of it; and then there opened the wide realm of intangible property, in the products and processes of the mind,[6] as works of literature and art, [7] goodwill,[8] trade secrets, and trademarks.[9]
This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature.
Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right "to be let alone" [10] Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops." For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons;[11] and the evil of invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer.[12] The alleged facts of a somewhat notorious case brought before an inferior tribunal in New York a few months ago,[13] directly involved the consideration of the right of circulating portraits; and the question whether our law will recognize and protect the right to privacy in this and in other respects must soon come before our courts for consideration.
Of the desirability -- indeed of the necessity -- of some such protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of
http://www.lawrence.edu/fac/boardmaw/Privacy_brand_warr2.html (2 of 14) [7/19/2004 9:50:58 PM]
Warren and Brandeis, "The Right to Privacy"
propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Nor is the harm wrought by such invasions confined to the suffering of those who may be the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in the lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.
It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is.
Owing to the nature of the instruments by which privacy is invaded, the injury inflicted bears a superficial resemblance to the wrongs dealt with by the law of slander and of libel, while a legal remedy for such injury seems to involve the treatment of mere wounded feelings, as a substantive cause of action. The principle on which the law of defamation rests, covers, however, a radically different class of effects from those for which attention is now asked. It deals only with damage to reputation, with the injury done to the individual in his external relations to the community, by lowering him in the estimation of his fellows. The matter published of him, however widely circulated, and however unsuited to publicity, must, in order to be actionable, have a direct tendency to injure him in his intercourse with others, and even if in writing or in print, must subject him to the hatred, ridicule, or contempt of his fellowmen, -- the effect of the publication upon his estimate of himself and upon his own feelings nor forming an essential element in the cause of action. In short, the wrongs and correlative rights recognized by the law of slander and libel are in their nature material rather than spiritual. That branch of the law simply
http://www.lawrence.edu/fac/boardmaw/Privacy_brand_warr2.html (3 of 14) [7/19/2004 9:50:58 PM]
Warren and Brandeis, "The Right to Privacy"
extends the protection surrounding physical property to certain of the conditions necessary or helpful to worldly prosperity. On the other hand, our law recognizes no principle upon which compensation can be granted for mere injury to the feelings. However painful the mental effects upon another of an act, though purely wanton or even malicious, yet if the act itself is otherwise lawful, the suffering inflicted is dannum absque injuria. Injury of feelings may indeed be taken account of in ascertaining the amount of damages when attending what is recognized as a legal injury;[14] but our system, unlike the Roman law, does not afford a remedy even for mental suffering which results from mere contumely and insult, but from an intentional and unwarranted violation of the "honor" of another.[15]
It is not however necessary, in order to sustain the view that the common law recognizes and upholds a principle applicable to cases of invasion of privacy, to invoke the analogy, which is but superficial, to injuries sustained, either by an attack upon reputation or by what the civilians called a violation of honor; for the legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy, which properly understood afford a remedy for the evils under consideration.
The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others.[16] Under our system of government, he can never be compelled to express them (except when upon the witness stand); and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them. The existence of this right does not depend upon the particular method of expression adopted. It is immaterial whether it be by word[17] or by signs,[18] in painting,[19] by sculpture, or in music.[20] Neither does the existence of the right depend upon the nature or value of the thought or emotions, nor upon the excellence of the means of expression.[21] The same protection is accorded to a casual letter or an entry in a diary and to the most valuable poem or essay, to a botch or daub and to a masterpiece. In every such case the individual is entitled to decide whether that which is his shall be given to the public.[22] No other has the right to publish his productions in any form, without his consent. This right is wholly independent of the material on which, the thought, sentiment, or emotions is expressed. It may exist independently of any corporeal being, as in words spoken, a song sung, a drama acted. Or if expressed on any material, as in a poem in writing, the author may have parted with the paper, without forfeiting any proprietary right in the composition itself. The right is lost only when the author himself communicates his production to the public, -- in other words, publishes it.[23] It is entirely independent of the copyright laws, and their extension into the domain of art. The aim of those statutes is to secure to the author, composer, or artist the entire profits arising from publication; but the common-law protection enables him to control absolutely the act of publication, and in the exercise of his own discretion, to decide whether there shall be any publication at all.[24] The statutory right is of no value, unless there is a publication; the common-law right is lost as soon as there is a publication.
http://www.lawrence.edu/fac/boardmaw/Privacy_brand_warr2.html (4 of 14) [7/19/2004 9:50:58 PM]
Warren and Brandeis, "The Right to Privacy"
What is the nature, the basis, of this right to prevent the publication of manuscripts or works of art? It is stated to be the enforcement of a right of property;[25] and no difficulty arises in accepting this view, so long as we have only to deal with the reproduction of literary and artistic compositions. They certainly possess many of the attributes of ordinary property; they are transferable; they have a value; and publication or reproduction is a use by which that value is realized. But where the value of the production is found not in the right to take the profits arising from publication, but in the peace of mind or the relief afforded by the ability to prevent any publication at all, it is difficult to regard the right as one of property, in the common acceptation of that term. A man records in a letter to his son, or in his diary, that he did not dine with his wife on a certain day. No one into whose hands those papers fall could publish them to the world, even if possession of the documents had been obtained rightfully; and the prohibition would not be confined to the publication of a copy of the letter itself, or of the diary entry; the restraint extends also to a publication of the contents. What is the thing which is protected? Surely, not the intellectual act of recording the fact that the husband did not dine with his wife, but that fact itself. It is not the intellectual product, but the domestic occurrence. A man writes a dozen letters to different people. No person would be permitted to publish a list of the letters written. If the letters or the contents of the diary were protected as literary compositions, the scope of the protection afforded should be the same secured to a published writing under the copyright law. But the copyright law would not prevent an enumeration of the letters, or the publication of some of the facts contained therein. The copyright of a series of paintings or etchings would prevent a reproduction of the paintings as pictures; but it would not prevent a publication of list or even a description of them.[26] Yet in the famous case of Prince Albert v. Strange, the court held that the common-law rule prohibited not merely the reproduction of the etchings which the plaintiff and Queen Victoria had made for their own pleasure, but also "the publishing (at least by printing or writing), though not by copy or resemblance, a description of them, whether more or less limited or summary, whether in the form of a catalogue or otherwise."[27] Likewise, an unpublished collection of news possessing no element of a literary nature is protected from privacy.[28]
That this protection cannot rest upon the right to literary or artistic property in any exact sense, appears the more clearly when the subject-matter for which protection is invoked is not even in the form of intellectual property, but has the attributes of ordinary tangible property. Suppose a man has a collection of gems or curiosities which he keeps private : it would hardly be contended that any person could publish a catalogue of them, and yet the articles enumerated are certainly not intellectual property in the legal sense, any more than a collection of stoves or of chairs.[29]
The belief that the idea of property in its narrow sense was the basis of the protection of unpublished manuscripts led an able court to refuse, in several cases, injunctions against
http://www.lawrence.edu/fac/boardmaw/Privacy_brand_warr2.html (5 of 14) [7/19/2004 9:50:58 PM]
Warren and Brandeis, "The Right to Privacy"
the publication of private letters, on the ground that "letters not possessing the attributes of literary compositions are not property entitled to protection;" and that it was "evident the plaintiff could not have considered the letters as of any value whatever as literary productions, for a letter cannot be considered of value to the author which he never would consent to have published."[30] But those decisions have not been followed,[31] and it may not be considered settled that the protection afforded by the common law to the author of any writing is entirely independent of its pecuniary value, its intrinsic merits, or of any intention to publish the same and, of course, also, wholly independent of the material, if any, upon which, or the mode in which, the thought or sentiment was expressed.
Although the courts have asserted that they rested their decisions on the narrow grounds of protection to property, yet there are recognitions of a more liberal doctrine. Thus in the case of Prince Albert v. Strange, already referred to, the opinions of both the Vice- Chancellor and of the Lord Chancellor, on appeal, show a more or less clearly defined perception of a principle broader than those which were mainly discussed, and on which they both place their chief reliance. Vice-Chancellor Knight Bruce referred to publishing of a man that he had "written to particular persons or on particular subjects" as an instance of possibly injurious disclosures as to private matters, that the courts would in a proper case prevent; yet it is difficult to perceive how, in such a case, any right of privacy, in the narrow sense, would be drawn in question, or why, if such a publication would be restrained when it threatened to expose the victim not merely to sarcasm, but to ruin, it should not equally be enjoined, if it threatened to embitter his life. To deprive a man of the potential profits to be realized by publishing a catalogue of his gems cannot per se be a wrong to him. The possibility of future profits is not a right of property which the law ordinarily recognizes; it must, therefore, be an infraction of other rights which constitutes the wrongful act, and that infraction is equally wrongful, whether its results are to forestall the profits that the individual himself might secure by giving the matter a publicity obnoxious to him, or to gain an advantage at the expense of his mental pain and suffering. If the fiction of property in a narrow sense must be preserved, it is still true that the end accomplished by the gossip-monger is attained by the use of that which is another's, the facts relating to his private life, which he has seen fit to keep private. Lord Cottenham stated that a man "is that which is exclusively his," and cited with approval the opinion of Lord Eldon, as reported in a manuscript note of the case of Wyatt v. Wilson, in 1820, respecting an engraving of George the Third during his illness, to the effect that "if one of the late king's physicians had kept a diary of what he heard and saw, the court would not, in the king's lifetime, have permitted him to print and publish it; "and Lord Cottenham declared, in respect to the acts of the defendants in the case before him, that "privacy is the right invaded." But if privacy is once recognized as a right entitled to legal protection, the interposition of the courts cannot depend on the particular nature of the injuries resulting.
These considerations lead to the conclusion that the protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more
http://www.lawrence.edu/fac/boardmaw/Privacy_brand_warr2.html (6 of 14) [7/19/2004 9:50:58 PM]
Warren and Brandeis, "The Right to Privacy"
general right of the individual to be let alone. It is like the right not be assaulted or beaten, the right not be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed. In each of these rights, as indeed in all other rights recognized by the law, there inheres the quality of being owned or possessed -- and (as that is the distinguishing attribute of property) there may some propriety in speaking of those rights as property. But, obviously, they bear little resemblance to what is ordinarily comprehended under that term. The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality.[32]
If we are correct in this conclusion, the existing law affords a principle from which may be invoked to protect the privacy of the individual from invasion either by the too enterprising press, the photographer, or the possessor of any other modern device for rewording or reproducing scenes or sounds. For the protection afforded is not confined by the authorities to those cases where any particular medium or form of expression has been adopted, not to products of the intellect. The same protection is afforded to emotions and sensations expressed in a musical composition or other work of art as to a literary composition; and words spoken, a pantomime acted, a sonata performed, is no less entitled to protection than if each had been reduced to writing. The circumstance that a thought or emotion has been recorded in a permanent form renders its identification easier, and hence may be important from the point of view of evidence, but it has no significance as a matter of substantive right. If, then, the decisions indicate a general right to privacy for thoughts, emotions, and sensations, these should receive the same protection, whether expressed in writing, or in conduct, in conversation, in attitudes, or in facial expression.
It may be urged that a distinction should be taken between the deliberate expression of thoughts and emotions in literary or artistic compositions and the casual and often involuntary expression given to them in the ordinary conduct of life. In other words, it may be contended that the protection afforded is granted to the conscious products of labor, perhaps as an encouragement to effort.[33] This contention, however plausible, has, in fact, little to recommend it. If the amount of labor involved be adopted as the test, we might well find that the effort to conduct one's self properly in business and in domestic relations had been far greater than that involved in painting a picture or writing a book; one would find that it was far easier to express lofty sentiments in a diary than in the conduct of a noble life. If the test of deliberateness of the act be adopted, much casual correspondence which is now accorded full protection would be excluded from the beneficent operation of existing rules. After the decisions denying the distinction attempted to be made between those literary productions which it was intended to publish and those which it was not, all considerations of the amount of labor involved, the degree of deliberation, the value of the product, and the intention of publishing must be abandoned, and no basis is discerned upon which the right to restrain publication and reproduction of such so-called literary and artistic works can be rested, except the right to privacy, as a part of the more general right to the immunity of the person, -- the right to one's personality.
http://www.lawrence.edu/fac/boardmaw/Privacy_brand_warr2.html (7 of 14) [7/19/2004 9:50:58 PM]
Warren and Brandeis, "The Right to Privacy"
It should be stated that, in some instances where protection has been afforded against wrongful publication, the jurisdiction has been asserted, not on the ground of property, or at least not wholly on that ground, but upon the ground of an alleged breach of an implied contract or of a trust or confidence.
Thus, in Abernethy v. Hutchinson, 3 L. J. Ch. 209 (1825), where the plaintiff, a distinguished surgeon, sought to restrain the publication in the "Lancet" of unpublished lectures which he had delivered as St. Bartholomew's Hospital in London, Lord Eldon doubted whether there could be property in lectures which had not been reduced to writing, but granted the injunction on the ground of breach of confidence, holding "that when persons were admitted as pupils or otherwise, to hear these lectures, although they were orally delivered, and although the parties might go to the extent, if they were able to do so, of putting down the whole by means of short-hand, yet they could do that only for the purposes of their own information, and could not publish, for profit, that which they had not obtained the right of selling."
In Prince Albert v. Strange, I McN. & G. 25 (1849), Lord Cottenham, on appeal, while recognizing a right of property in the etchings which of itself would justify the issuance of the injunction, stated, after discussing the evidence, that he was bound to assume that the possession of the etching by the defendant had "its foundation in a breach of trust, confidence, or contract," and that upon such ground also the plaintiff's title to the injunction was fully sustained.
In Tuck v. Priester, 19 Q.B.D. 639 (1887), the plaintiffs were owners of a picture, and employed the defendant to make a certain number of copies. He did so, and made also a number of other copies for himself, and offered them for sale in England at a lower price. Subsequently, the plaintiffs registered their copyright in the picture, and then brought suit for an injunction and damages. The Lords Justices differed as to the application of the copyright acts to the case, but held unanimously that independently of those acts, the plaintiffs were entitled to an injunction and damages for breach of contract.
In Pollard v. Photographic Co., 40 Ch. Div. 345 (1888), a photographer who had taken a lady's photograph under the ordinary circumstances was restrained from exhibiting it, and also from selling copies of it, on the ground that it was a breach of an implied term in the contract, and also that it was a breach of confidence. Mr. Justice North interjected in the argument of the plaintiff's counsel the inquiry: "Do you dispute that if the negative likeness were taken on the sly, the person who took it might exhibit copies?" and counsel for the plaintiff answered: "In that case there would be no trust or consideration to support a contract." Later, the defendant's counsel argued that "a person has no property in his own features; short of doing what is libellous or otherwise illegal, there is no restriction on the photographer's using his negative." But the court, while expressly finding a breach of
http://www.lawrence.edu/fac/boardmaw/Privacy_brand_warr2.html (8 of 14) [7/19/2004 9:50:58 PM]
Warren and Brandeis, "The Right to Privacy"
contract and of trust sufficient to justify its interposition, still seems to have felt the necessity of resting the decision also upon a right of property,[34] in order to bring it within the line of those cases which were relied upon as precedents.[35]
This process of implying a term in a contract, or of implying a trust (particularly where a contract is written, and where these is no established usage or custom), is nothing more nor less than a judicial declaration that public morality, private justice, and general convenience demand the recognition of such a rule, and that the publication under similar circumstances would be considered an intolerable abuse. So long as these circumstances happen to present a contract upon which such a term can be engrafted by the judicial mind, or to supply relations upon which a trust or confidence can be erected, there may be no objection to working out the desired protection though the doctrines of contract or of trust. But the court can hardly stop there. The narrower doctrine may have satisfied the demands of society at a time when the abuse to be guarded against could rarely have arisen without violating a contract or a special confidence; but now that modern devices afford abundant opportunities for the perpetration of such wrongs without any participation by the injured party, the protection granted by the law must be placed upon a broader foundation. While, for instance, the state of the photographic art was such that one's picture could seldom be taken without his consciously "sitting" for the purpose, the law of contract or of trust might afford the prudent man sufficient safeguards against the improper circulation of his portrait; but since the latest advances in photographic art have rendered it possible to take pictures surreptitiously, the doctrines of contract and of trust are inadequate to support the required protection, and the law of tort must be resorted to. The right of property in its widest sense, including all possession, including all rights and privileges, and hence embracing the right to an inviolate personality, affords alone that broad basis upon which the protection which the individual demands can be rested.
Thus, the courts, in searching for some principle upon which the publication of private letters could be enjoined, naturally came upon the ideas of a breach of confidence, and of an implied contract; but it required little consideration to discern that this doctrine could not afford all the protection required, since it would not support the court in granting a remedy against a stranger; and so the theory of property in the contents of letters was adopted.[36] Indeed, it is difficult to conceive on what theory of the law the casual recipient of a letter, who proceeds to publish it, is guilty of a breach of contract, express or implied, or of any breach of trust, in the ordinary acceptation of that term. Suppose a letter has been addressed to him without his solicitation. He opens it, and reads. Surely, he has not made any contract; he has not accepted any trust. He cannot, by opening and reading the letter, have come under any obligation save what the law declares; and, however expressed, that obligation is simply to observe the legal right of the sender, whatever it may be, and whether it be called his right or property in the contents of the letter, or his right to privacy.[37]
http://www.lawrence.edu/fac/boardmaw/Privacy_brand_warr2.html (9 of 14) [7/19/2004 9:50:58 PM]
Warren and Brandeis, "The Right to Privacy"
A similar groping for the principle upon which a wrongful publication can be enjoined is found in the law of trade secrets. There, injunctions have generally been granted on the theory of a breach of contract, or of an abuse of confidence.[38] It would, of course, rarely happen that any one would be in possession of a secret unless confidence had been reposed in him. But can it be supposed that the court would hesitate to grant relief against one who had obtained his knowledge by an ordinary trespass, -- for instance, by wrongfully looking into a book in which the secret was recorded, or by eavesdropping? Indeed, in Yovatt v. Winyard, I J.&W. 394 (1820), where an injunction was granted against making any use or of communicating certain recipes for veterinary medicine, it appeared that the defendant while in the plaintiff's employ, had surreptitiously got access to his book of recipes, and copied them. Lord Eldon "granted the injunction, upon the ground of there having been a breach of trust and confidence;" but it would seem difficult to draw any sound legal distinction between such a case and one where a mere stranger wrongfully obtained access to the book.[39]
We must therefore conclude that the rights, so protected, whatever their exact nature, are not rights arising from contract or from special trust, but are rights as against the world; and, as above stated, the principle which has been applied to protect these rights is in reality not the principle of private property, unless that word be used in an extended and unusual sense. The principle which protects personal writings and any other productions of the intellect of or the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, sayings, acts, and to personal relation, domestic or otherwise.[40]
If the invasion of privacy constitutes a legal injuria, the elements for demanding redress exist, since already the value of mental suffering, caused by an act wrongful in itself, is recognized as a basis for compensation.
The right of one who has remained a private individual, to prevent his public portraiture, presents the simplest case for such extension; the right to protect one's self from pen portraiture, from a discussion by the press of one's private affairs, would be a more important and far-reaching one. If casual and unimportant statements in a letter, if handiwork, however inartistic and valueless, if possessions of all sorts are protected not only against reproduction, but also against description and enumeration, how much more should the acts and sayings of a man in his social and domestic relations be guarded from ruthless publicity. If you may not reproduce a woman's face photographically without her consent, how much less should be tolerated the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagination.
The right to privacy, limited as such right must necessarily be, has already found expression in the law of France.[41]
http://www.lawrence.edu/fac/boardmaw/Privacy_brand_warr2.html (10 of 14) [7/19/2004 9:50:58 PM]
Warren and Brandeis, "The Right to Privacy"
It remains to consider what are the limitations of this right to privacy, and what remedies may be granted for the enforcement of the right. To determine in advance of experience the exact line at which the dignity and convenience of the individual must yield to the demands of the public welfare or of private justice would be a difficult task; but the more general rules are furnished by the legal analogies already developed in the law of slander and libel, and in the law of literary and artistic property.
1. The right to privacy does not prohibit any publication of matter which is of public or general interest. In determining the scope of this rule, aid would be afforded by the analogy, in the law of libel and slander, of cases which deal with the qualified privilege of comment and criticism on matters of public and general interest.[42] There are of course difficulties in applying such a rule; but they are inherent in the subject-matter, and are certainly no greater than those which exist in many other branches of the law, -- for instance, in that large class of cases in which the reasonableness or unreasonableness of an act is made the test of liability. The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever; their position or station, from having matters which they may properly prefer to keep private, made public against their will. It is the unwarranted invasion of individual privacy which is reprehended, and to be, so far as possible, prevented. The distinction, however, noted in the above statement is obvious and fundamental. There are persons who may reasonably claim as a right, protection from the notoriety entailed by being made the victims of journalistic enterprise. There are others who, in varying degrees, have renounced the right to live their lives screened from public observation. Matters which men of the first class may justly contend, concern themselves alone, may in those of the second be the subject of legitimate interest to their fellow-citizens. Peculiarities of manner and person, which in the ordinary individual should be free from comment, may acquire a public importance, if found in a candidate for public office. Some further discrimination is necessary, therefore, than to class facts or deeds as public or private according to a standard to be applied to the fact or deed per se. To publish of a modest and retiring individual that he suffers from an impediment in his speech or that he cannot spell correctly, is an unwarranted, if not an unexampled, infringement of his rights, while to state and comment on the same characteristics found in a would-be congressman could not be regarded as beyond the pale of propriety.
The general object in view is to protect the privacy of private life, and to whatever degree and in whatever connection a man's life has ceased to be private, before the publication under consideration has been made, to that extent the protection is likely to be withdrawn.[43] Since, then, the propriety of publishing the very same facts may depend wholly upon the person concerning whom they are published, no fixed formula can be used to prohibit obnoxious publications. Any rule of liability adopted must have in it an elasticity which shall take account of the varying circumstances of each case, -- a necessity which unfortunately renders such a doctrine not only more difficult of application, but also
http://www.lawrence.edu/fac/boardmaw/Privacy_brand_warr2.html (11 of 14) [7/19/2004 9:50:58 PM]
Warren and Brandeis, "The Right to Privacy"
to a certain extent uncertain in its operation and easily rendered abortive. Besides, it is only the more flagrant breaches of decency and propriety that could in practice be reached, and it is not perhaps desirable even to attempt to repress everything which the nicest taste and keenest sense of the respect due to private life would condemn.
In general, then, the matters of which the publication should be repressed may be described as those which concern the private life, habits, acts, and relations of an individual, and have no legitimate connection with his fitness for a public office which he seeks or for which he is suggested, or for any public or quasi public position which he seeks or for which he is suggested, and have no legitimate relation to or bearing upon any act done by him in a public or quasi public capacity. The foregoing is not designed as a wholly accurate or exhaustive definition, since that which must ultimately in a vast number of cases become a question of individual judgment and opinion is incapable of such definition; but it is an attempt to indicate broadly the class of matters referred to. Some things all men alike are entitled to keep from popular curiosity, whether in public life or not, while others are only private because the persons concerned have not assumed a position which makes their doings legitimate matters of public investigation.[44]
2. The right to privacy does not prohibit the communication of any matter, though in its nature private, when the publication is made under circumstances which would render it a privileged communication according to the law of slander and libel. Under this rule, the right to privacy is not invaded by any publication made in a court of justice, in legislative bodies, or the committees of those bodies; in municipal assemblies, or the committees of such assemblies, or practically by any communication in any other public body, municipal or parochial, or in any body quasi public, like the large voluntary associations formed for almost every purpose of benevolence, business, or other general interest; and (at least in many jurisdictions) reports of any such proceedings would in some measure be accorded a like privilege.[45] Nor would the rule prohibit any publication made by one in the discharge of some public or private duty, whether legal or moral, or in conduct of one's own affairs, in matters where his own interest is concerned.[46]
3. The law would probably not grant any redress for the invasion of privacy by oral publication in the absence of special damage. The same reasons exist for distinguishing between oral and written publications of private matters, as is afforded in the law of defamation by the restricted liability for slander as compared with the liability for libel.[47] The injury resulting from such oral communications would ordinarily be so trifling that the law might well, in the interest of free speech, disregard it altogether.[48]
4. The right to privacy ceases upon the publication of the facts by the individual, or with his consent.
This is but another application of the rule which has become familiar in the law of literary
http://www.lawrence.edu/fac/boardmaw/Privacy_brand_warr2.html (12 of 14) [7/19/2004 9:50:58 PM]
Warren and Brandeis, "The Right to Privacy"
and artistic property. The cases there decided establish also what should be deemed a publication, -- the important principle in this connection being that a private communication of circulation for a restricted purpose is not a publication within the meaning of the law.[49]
5. The truth of the matter published does not afford a defence. Obviously this branch of the law should have no concern with the truth or falsehood of the matters published. It is not for injury to the individual's character that redress or prevention is sought, but for injury to the right of privacy. For the former, the law of slander and libel provides perhaps a sufficient safeguard. The latter implies the right not merely to prevent inaccurate portrayal of private life, but to prevent its being depicted at all.[50]
6. The absence of "malice" in the publisher does not afford a defence. Personal ill-will is not an ingredient of the offence, any more than in an ordinary case of trespass to person or to property. Such malice is never necessary to be shown in an action for libel or slander at common law, except in rebuttal of some defence, e.g., that the occasion rendered the communication privileged, or, under the statutes in this State and elsewhere, that the statement complained of was true. The invasion of the privacy that is to be protected is equally complete and equally injurious, whether the motives by which the speaker or writer was actuated are taken by themselves, culpable or not; just as the damage to character, and to some extent the tendency to provoke a breach of the peace, is equally the result of defamation without regard to motives leading to its publication. Viewed as a wrong to the individual, this rule is the same pervading the whole law of torts, by which one is held responsible for his intentional acts, even thought they care committed with no sinister intent; and viewed as a wrong to society, it is the same principle adopted in a large category of statutory offences.
The remedies for an invasion of the right of privacy are also suggested by those administered in the law of defamation, and in the law of literary and artistic property, namely: --
1. An action of tort for damages in all cases.[51] Even in the absence of special damages, substantial compensation could be allowed for injury to feelings as in the action of slander and libel.
2. An injunction, in perhaps a very limited class of cases.[52]
It would doubtless be desirable that the privacy of the individual should receive the added protection of the criminal law, but for this, legislation would be required.[53] Perhaps it would be deemed proper to bring the criminal liability for such publication within narrower limits; but that the community has an interest in preventing such invasions of privacy, sufficiently strong to justify the introduction of such a remedy, cannot be doubted.
http://www.lawrence.edu/fac/boardmaw/Privacy_brand_warr2.html (13 of 14) [7/19/2004 9:50:58 PM]
Warren and Brandeis, "The Right to Privacy"
Still, the protection of society must come mainly through a recognition of the rights of the individual. Each man is responsible for his own acts and omissions only. If he condones what he reprobates, with a weapon at hand equal to his defence, he is responsible for the results. If he resists, public opinion will rally to his support. Has he then such a weapon? It is believed that the common law provides him with one, forged in the slow fire of the centuries, and to-day fitly tempered to his hand. The common law has always recognized a man's house as his castle, impregnable, often, even to his own officers engaged in the execution of its command. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity?
Samuel D. Warren,
Louis D. Brandeis.
BOSTON, December, 1890.
[downloaded 18 May 1996 from an internet site hosted by Stephen R. Laniel; and reformatted]
http://www.lawrence.edu/fac/boardmaw/Privacy_brand_warr2.html (14 of 14) [7/19/2004 9:50:58 PM]
- lawrence.edu
- Warren and Brandeis, "The Right to Privacy"