From Wiretaps to AI: The Evolving Battle for Privacy in America

As I was writing an assignment for my Databases class, I realized just how relevant this essay was, even though it started out in 1928. The battle between surveillance and privacy has been quite the struggle, and it is a topic that heavily interests me, so I thought I would share it with others, hoping to spreads the story of privacy and change in our country.

This journey through a century of U.S. history will cover the ramifications of three monumental U.S. Supreme Court cases that are essential to understanding the balance between privacy and change in the United States. The cases I will explore are, Olmstead v. United States (1928), Katz v. United States (1967), and Kyllo v. United States (2001). Through this essay, we will navigate through the Constitutional approach to privacy as it intersects with the exponential growth of technology. Each of these cases plays a significant role in shaping the way privacy is legally interpreted and explored in the face of evolving technology and government surveillance tactics.

Olmstead v. United States was the first of the three cases to delve into the Constitutional definition of privacy. For background, Roy Olmstead was a suspected alcohol bootlegger in the 1920s. Without a warrant, federal agents placed wiretaps in the basement of Olmstead's property and on the streets near his home. The government gathered conclusive evidence through these wiretaps, leading to Olmstead being found guilty of violating the National Prohibition Act (1919) -which banned the selling of alcohol in the United States. The central legal question presented to the Supreme Court was: “Was the evidence collected in a manner that violated the Fourth Amendment’s privacy clause and the Fifth Amendment’s self-incrimination clause?”

In a close 5-4 ruling, the Supreme Court ruled that neither Olmstead’s Fourth or Fifth Amendment rights were violated. The Court stated that the use of wiretapping as evidence did not violate the Fifth Amendment’s self-incrimination clause because Olmstead was not forced to make the statements recorded on the wiretaps. Instead, he engaged in conversations voluntarily with his business partners. Furthermore, his Fourth Amendment rights were not violated because wiretapping wasn’t a truly physical search, which is what the Fourth Amendment explicitly protects against. Chief Justice William Howard Taft, emphasized that the Fourth Amendment referred strictly to tangible property and did not extend to spoken words-this opinion shows Taft’s strong constructionist view of the Constitution. One of Taft’s most notable statements in the case was, "If they think we are going to be frightened in our effort to stand by the law and give the public a chance to punish criminals, they are mistaken, even though we are condemned for lack of high ideals."

This case set an important precedent that wiretapping, when conducted without trespassing onto physical private property, did not violate the Constitutional protections of the Fourth and Fifth Amendments. The ruling in Olmstead provided a legal foundation for the government to use electronic surveillance without a search warrant. This decision shaped future privacy discussions and was later revisited as technology advanced, leading to further legal challenges in cases such as Katz v. United States. As we move through this journey through U.S. history, we will explore how Katz refined the understanding of privacy rights.?

The next case in our trilogy is Katz v. United States (1967). This case revisited the Olmstead case and went on to redefine the Constitutional definition of privacy. For background, federal agents were convinced that Katz was running an illegal gambling operation. To gather evidence, they tapped a public pay phone that he frequently used. Based on the recorded conversations, Katz was convicted of transmitting gambling information across the country. Katz challenged his conviction, arguing that the recordings could not be used as evidence against him, as he believed his Fourth Amendment right to privacy was violated. The Appellate Court rejected his argument, noting the absence of a physical intrusion into the phone booth itself, citing the precedent set by Olmstead in 1928. However, this case was later brought to the docket of the Supreme Court, which challenged the previous view. The central question given to the Supreme Court was, “Can the police wiretap a public pay phone without violating one’s right to privacy as outlined in the Fourth Amendment?”

In a landmark 7-1 ruling, the Supreme Court sided with Katz, determining that his Fourth Amendment protection of privacy was indeed violated and that the evidence collected was illegally obtained. The Court reasoned that a physical intrusion into the area he occupied was unnecessary to constitute a violation of privacy. Justice John Marshall Harlan introduced the idea of reasonably interpreting the boundaries of the Fourth Amendment, leading to what became known as the "reasonable expectation of privacy" test. This case was monumental in overturning the long-term precedent that wiretapping was always legal, no matter the circumstance.

Katz v. United States ultimately established that the Fourth Amendment protects people, not just places. The ruling emphasized that even in public settings, individuals have a right to privacy under certain circumstances. The decision was a significant shift in the Constitutional interpretation of privacy rights, setting a foundation for future cases that would challenge government surveillance in an increasingly digital age. With Katz redefining privacy protections in the context of wiretapping, it paved the way for further refinements to the legal handling of evidence, leading to the next case in our discussion—Kyllo v. United States, which addressed the use of much more advanced technology in government surveillance.

The last case in our exploration of privacy and change is Kyllo v. United States (2001). This case has set the precedent for government surveillance for decades (including 2025). Understanding this case is important to understand the current Constitutional definition of privacy. For background, A federal agent working in the Department of the Interior suspected that Danny Kyllo was growing marijuana-which was illegal in every state at the time. The agent used an advanced thermal imaging device to scan Kyllo’s residence. The images taken were used to determine if the amount of heat radiating from the property was consistent with the high-energy lamps that were traditionally used for marijuana farming. The images revealed that marijuana “hot spots” existed, relative to the rest of the home. Based on the images and energy bills from Kyllo’s residence, a federal judge issued a search warrant into Kyllo's home. The search unveiled marijuana. After Kyllo was convicted on a federal drug charge, he challenged the search, saying that the evidence was illegally obtained. The Appellate Courts held that Kyllo had shown no expectation of privacy because he had not attempted to hide the heat escaping from his home, and there was no expectation of privacy because the imaging did not reveal anything about Kyllo’s home and life aside from the illegal drug charges. The Supreme Court was given the ever-lasting question, “Is the use of advanced technology- in this case, thermal imaging- a violation of one’s Fourth Amendment right to privacy?”?

In a tight 5-4 ruling, the Supreme Court ruled in favor of Kyllo. They reasoned the Government cannot use a device that is not in general public use. Additionally, the technology was used to explore details of Kyllo’s home that would previously have been hidden without physical intrusion, the surveillance can be seen as a search and is illegal without a warrant. The use of high-grade government/military technologies for use of searching was therefore banned and deemed unconstitutional. This case can be seen as the most important for the next generation as we continue to create and advance never-before-seen technology that can change everything in an instant. This ruling is comforting as it reminds us, citizens, that the government cannot leverage its advantage in capital and technology to spy on us, at least in ways that we can recognize….

Although these cases have reinforced privacy protections for American citizens, the next frontier of legal battles will likely involve hidden and highly sophisticated technology, particularly artificial intelligence, machine learning, and big data surveillance. As technology becomes more embedded into daily life, the ability of governments and corporations to track, predict, and influence human behavior raises new constitutional questions about privacy. Unlike traditional surveillance methods, modern data collection operates largely without physical intrusion, making it more difficult for individuals to detect and challenge violations of their privacy, making appeals to the courts much more scarce.

For example, AI-powered surveillance tools can analyze vast amounts of data, such as social media activity, biometric scans, and location tracking, to build detailed profiles of individuals without their direct consent (Dixon, 2022). Law enforcement agencies have increasingly used AI-driven facial recognition software, such as Clearview AI, which scrapes billions of images from the internet to identify individuals using facial data (Hill, 2020). Although this type of technology can be helpful in policing and counter-terrorism, it raises significant Fourth Amendment concerns, as it allows warrantless searches in public spaces, essentially nullifying the "reasonable expectation of privacy" standard outlined in the Katz decision.

Additionally, predictive policing algorithms use machine learning models to analyze past crime data and forecast future criminal activity (Richardson, 2019). While these systems are often promoted as efficient crime-fighting tools, they have been criticized for disproportionately targeting minority communities and reinforcing systemic biases (Benjamin, 2019). The variable nature of AI decision-making makes it difficult to challenge such practices in court, allowing them to essentially bypass the Fourth Amendment of the US Constitution.

Corporate data collection presents another challenge beyond law enforcement. Tech empires like Google, Meta, and Amazon gather and analyze user data every day to personalize advertisements and predict consumer behavior. While these practices are legal under current regulations, they begin to blur the line between voluntary data sharing and hidden surveillance. The U.S. currently lacks a comprehensive and modern federal data privacy law, leaving many Americans vulnerable to unchecked data collection.

Together, we have just traversed through a century-long journey through the evolution of Fourth Amendment protections. However, as Artificial Intelligence, Machine Learning, and digital surveillance reshape the boundaries of privacy, it may be time to reconsider and modernize the Constitution’s privacy clause. The internet has become an untapped abyss of personal data, and many individuals—ranging from children who grow up with iPads to senior citizens unfamiliar with data privacy risks. It is our responsibility to remain informed and advocate for robust legal protections against emerging forms of digital surveillance. Just as Olmstead, Katz, Kyllo, and many other Americans challenged the government's overreach, the next generation must be prepared to fight for privacy rights in the era of AI and big data.

Works Cited

Benjamin, Ruha. Race After Technology: Abolitionist Tools for the New Jim Code. Polity Press, 2019. Princeton University, ??https://aas.princeton.edu/publications/research/race-after-technology-abolitionist-tools-new-jim-code.

Dixon, Pam. Surveillance Capitalism and the Age of AI: The Risks to Privacy and Civil Liberties. MIT Press, 2022.

Hill, Kashmir. "The Secretive Company That Might End Privacy as We Know It." The New York Times, 18 Jan. 2020, ??https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html.

"Katz v. United States." Oyez, www.oyez.org/cases/1967/35. Accessed 31 Jan. 2025.

"Kyllo v. United States." Oyez, www.oyez.org/cases/2000/99-8508. Accessed 31 Jan. 2025.

"Olmstead v. United States." Oyez, www.oyez.org/cases/1900-1940/277us438. Accessed 31 Jan. 2025.

Richardson, Rashida, Jason Schultz, and Kate Crawford. "Dirty Data, Bad Predictions: How Civil Rights Violations Impact ??

Police Data and Predictive Policing Systems." New York University Law Review, vol. 94, no. 15, 2019, pp. 192-221.

"Surveillance Capitalism and AI." Nature Communications, 2024, ??https://www.nature.com/articles/s41599-024-03941-2.