The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A lot of readers are familiar with Olmstead v. United States, the 1928 Supreme Court case ruling that wiretapping a telephone line is not a Fourth Amendment search. These days, Olmstead is mostly known for later being overruled and for Justice Brandeis's stirring dissent. But few people know about the fascinating amicus brief filed in Olmstead by a coalition of telephone companies. The brief opposed the government's surveillance using language that rings a bell with our post-Snowden uptick in provider challenges to government surveillance.
I couldn't find a copy of the brief online, so I obtained a copy through the GW Law library and have posted it here: Olmstead Telephone Company Amicus Brief.
Privacy nerds will want to read the whole thing. That's easy to do, as the brief is only eight pages long. But here's a taste for everyone else:
The function of a telephone system in our modern economy is, so far as reasonably practicable, to enable any two persons at a distance to converse privately with each other as they might do if both were personally present in the privacy of the home or office of either one. . . .
It is of the very nature of the telephone service that it shall be private; and hence it is that wire tapping has been made an offense punishable either as a felony or misdemeanor by the legislatures of twenty-eight States, and that in thirty-five States there are statutes in some form intended to prevent the disclosure of telephone or telegraph messages, either by connivance with agents of the companies or otherwise.
We do not mean to suggest the states can by statute destroy or impair any authority federal officials have under the Constitution and laws of the United States, and thus tie the hands of federal officers. Our suggestion is that this general and widespread recognition of the states of the privacy of the telephone lends most persuasive support to the contention that it is one of the privacies of life which the Fourth Amendment protects against invasion by the Government of the United States, and that any search which invades the privacy of the telephone is an unreasonable search and therefore violates that Amendment.
The telephone has become part and parcel of the social and business intercourse of the people of the United States, and this telephone system offers a means of espionage compared to which general warrants and writs of assistance were the puniest instuments of tyranny and oppression.
The telephone companies deplore the use of their facilities in furtherance of any criminal or wrongful enterprise. But it was not solicitude for law breakers that caused the people of the United States to ordain the Fourth and Fifth Amendments as part of the Constitution. 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.
I gather that a common link between this brief and recent provider opposition to government surveillance is partly just a question of business. If you run a communications network, privacy is good for business. You want to keep the government out, both to get the government out of your way and to ensure that your customers don't discount your service because they fear the government is listening. That was true in 1928, and it's still true almost 90 years later.