Katz is Dead. Long Live Katz

Katz v. United States is the king of Supreme Court surveillance cases. Written in 1967, it struck down the earlier regime of property rules, declaring that “the Fourth Amendment protects people, not places.” The concurrence by Justice Harlan announced the new regime – court-issued warrants are required where there is an infringement on a person’s “reasonable expectation of privacy.” Together with the companion case Berger v. New York, Katz has stood for a grand conception of the Fourth Amendment as a bulwark against wiretaps and other emerging forms of surveillance. Professor Orin Kerr, in his excellent article, shows that this view of Katz fits badly with how courts now apply the Fourth Amendment to electronic surveillance and other new technology. Upon reading his own obituary, Mark Twain famously observed that “reports of my death are greatly exaggerated.” This Essay shows that the demise of Katz has actually been understated. Professor Kerr has correctly shown how the property regime has persisted where it helped the government, such as cases that hold that many kinds of surveillance are not “searches” under the Fourth Amendment. This Essay adds the insight that the property regime has actually been abandoned in many other respects since 1967, in ways that have dramatically aided government surveillance. In particular, as discussed in Part I, the 1967 abolition of the “mere evidence” rule has given the government unprecedented access to diaries, private papers, and other information of individuals. Examination of the case law and of new developments in telephone technology leads to a second insight. The shift to Voice over Internet Protocol phone calls means that the content of many telephone calls will likely be subject to routine recording in the near future. Because the Supreme Court has been so supportive of government access to stored records, Katz and Berger may soon be dead for their core facts, the content of phone calls.