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A blast from the past.
Topic: Miscellaneous 9:19 am EST, Dec 29, 2013

Justice William O. Douglas, dissenting - 1972:

The present controversy is not a remote, imaginary conflict. Respondents were targets of the Army's surveillance.... the surveillance was not casual, but massive and comprehensive...

Surveillance of civilians is none of the Army's constitutional business...

This case involves a cancer in our body politic. It is a measure of the disease which afflicts us. Army surveillance, like Army regimentation, is at war with the principles of the First Amendment. Those who already walk submissively will say there is no cause for alarm. But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government. There can be no influence more paralyzing of that objective than Army surveillance.

When an intelligence officer looks over every nonconformist's shoulder in the library, or walks invisibly by his side in a picket line, or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is cast in the image which Jefferson and Madison designed, but more in the Russian image, depicted in Appendix III to this opinion.


Alexander I. Solzhenitsyn, the noted Soviet author, made the following statement March 30, 1972, concerning surveillance of him and his family (reported in the Washington Post, Apr. 3, 1972):

"A kind of forbidden, contaminated zone has been created around my family, and to this day, there are people in Ryazan [where Solzhenitsyn used to live] who were dismissed from their jobs for having visited my house a few years ago. A corresponding member of the Academy of Sciences, T. Timofeyev, who is director of a Moscow institute, became so scared when he found out that a mathematician working under him was my wife that he dismissed her with unseemly haste, although this was just after she had given birth and contrary to all laws. . . ."

"It happens that an informant [for his new book on the history of pre-revolutionary Russia] may meet with me. We work an hour or two, and, as soon as he leaves my house, he will be closely followed, as if he were a state criminal, and they will investigate his background, and then go on to find out who this man meets, and then, in turn, who that [next] person is meeting."

"Of course, they cannot do this with everyone. The state security people have their schedule, and their own profound reasoning. On some days, there is no surveillance at all, or only superficial surveillance. On other days, they hang around, for example when Heinrich Boll came to see me [he is a German writer who recently visited Moscow]. They will put a car in front of each of the two approaches [to the courtyard of the apartment house where he stays in Moscow] with three men in each car -- and they don't work only one shift. Then off they go after my visitors, or they trail people who leave on foot."

Orin Kerr, 2010:

The distinction between inside and outside in the physical world should be replaced in the online setting by the distinction between content and non-content information. In the online setting, courts should treat non-content information relating to communications as if it were functionally “outside” and content information as if it were functionally “inside.” Internet surveillance of non-content information should not trigger the Fourth Amendment just like surveillance of public spaces does not trigger the Fourth Amendment, and surveillance of content should presumptively trigger the Fourth Amendment in the Internet setting just like surveillance of inside spaces presumptively triggers the Fourth Amendment in the physical world.

This translation is accurate because the distinction between content and non-content information serves the same function online that the inside/outside distinction serves in the physical world. Non-content information is analogous to outside information; it concerns where a person is and where a person is going. Consider what the police can learn by watching a suspect in public. Investigating officers can watch the suspect leave home and go to different places. They can watch him go to lunch, go to work, and go to the park; they can watch him drive home; and they can watch him park the car and go inside. In effect, this is to/from information about the person’s own whereabouts.

Senate Confirmation Hearing of William Rehnquist, 1971:

Senator TUNNEY. With regard to privacy and surveillance, you made a speech on March 19, 1971, "Privacy, Surveillance and the Law," in which you said:

I do not believe, therefore, that there should be any judicial enforcement limitation on the gathering on this type of public information by the Executive Branch of Government. Must we then leave the Government to police itself? My answer would be that first such a result is not as bad as it may sound, and, secondly, that matters of oversight other than those afforded by judicial supervision are available. I have previously stated my belief that the first amendment does not prohibit even foolish or unauthorized information gathering by the Government. It is, of course, possible to extrapolate from the decided Supreme Court cases and conclude that the Court would further broaden the interpretation of the first amendment to include a prohibition for cirumscription of this type of activity. My own opinion is that such an expansion of existing doctrine is unlikely.

Do you still subscribe to that viewpoint, that you do not believe that there are any judicially enforceable limitations on the evidence gathered by the Government, that the Government can surveil a person on its own initiative?

Mr. REHNQUIST. Put in context, Senator, I do.
The last sentence that you quoted was, as I am sure is apparent to you, a prediction on my part of what I thought the Court would do.
That does not represent my own personal opinion.
But put in the context of surveillance, not in the sense of wiretapping or invasion of premises or in terms of trying to use Government sanctions to extract information from people, but simply the observation of someone in a public place and qualified by the possibility that the result would be different where actual harrassment were shown, as I commented yesterday, my answer to your question is yes.

Senator TUNNEY. When you testified before Senator Ervin's committee earlier this year, I happened to be present at the time you testified, and Senator Ervin asked you a question: "Do you feel there are any serious constitutional problems with respect to collecting data or keeping it under surveillance for persons who are merely exercising their right of peaceful assembly or petition to redress a grievance," and you answered, "I do not believe that it raises a constitutional question."

Mr. REHNQUIST. That was my testimony at that time. I think that I am entitled to have borne in mind the fact that I was then a Justice Department spokesman, and that the Justice Department as a possible litigant in such action, is certainly required to take a reasonable position, but it is not required to take the one which would be most restrictive on its activities.

Senator TUNNEY. You also testified that if you didn't believe in what you said, you probably wouldn't be in the position that you are in now.

Mr. REHNQUIST. I didn't mean to say precisely that, Senator. I said that if I felt what I was saying was reprehensible or obnoxious to me, I would not be in the position I am in now. I would take that to leave open disagreements within what I consider to be reasonable bounds.

Senator TUNNEY. Senator Ervin then went on to question you, ''Don't you agree with me any surveillance which would have the effect of stifling such activities, namely, the first amendment, those activities which are privileged under the first amendment, would violate those constitutional rights?" Your answer was, "No, I do not."
I assume that the answer——•

Mr. REHNQUIST. Would you read that back again?

Senator TUNNEY. Yes. Senator Ervin's question:
Don't you agree with me that any surveillance which would have the effect of stifling such activities would violate those constitutional rights?
And your answer:
No, I do not.

Mr. REHNQUIST. I am not sure I do agree with that now. I am inclined to think that it is a fact question and I was perhaps resolving the fact question in my own mind on the basis of the line of inquiry that Senator Hart made yesterday, where thousands of people came, knowing there was going to be such surveillance, on the basis of Judge Austin's decision in Chicago, where he found as a fact that there was no stifling effect.

I do not think I would want to categorically say that such surveillance could not have a stifling effect. I think I would treat it as a question of fact.

Senator TUNNEY. I appreciate your answer. Senator Ervin then went on to say, Question:
Don't you think a serious constitutional question arises where any government agency undertakes to place people under surveillance for exercising their first amendment rights?
Your answer: "When you go further and say, 'Isn't a serious constitutional question involved,' I am inclined to think not, as I said last week."

Mr. REHNQUIST. The question being whether surveillance
Senator TUNNEY. Surveillance, yes.
"Don't you think a serious constitutional question arises where any government agency undertakes to place people under surveillance for exercising their first amendment rights?" and your answer was, "when you go further and say, 'Isn't a serious constitutional question involved,' I am inclined to think now, as I said last week."

Mr. REHNQUIST. Again, assuming that in fact the surveillance efforts have no chilling effect, I would stand by that answer, I think, again as a spokesman for the Department.

Senator TUNNEY. You don't think a serious constitutional question would arise putting people under surveillance for exercising their constitutional right of free speech?

Mr. REHNQUIST. In the absence of a causative connection between some sort of chilling effect and the surveillance itself, that was the position I took for the Department, and I believe it would be a reasonable one.

Senator TUNNEY. When you say in the absence of a chilling effect, I think you have eliminated the problem.
The question is wouldn't the surveillance have a chilling effect, and wouldn't that in effect raise the constitutional problems, and your answer was "I believe I am inclined to think not."

Mr. REHNQUIST. Well, I don't think the question was phrased that way.

Senator TUNNEY. Well----

Mr. REHNQUIST. Given the factual assumption of a chilling effect, then I would want to reserve judgment.

Senator TUNNEY. In other words, you think there could be a chilling effect?

Mr. REHNQUIST. Yes, sir; as in a Chicago type of case, I do.

Senator HRUSKA. Would the Senator yield?

Senator TUNNEY. Yes.

Senator HRUSKA. Yesterday you told us about a judge who thought that the force following those who were being under surveillance would have presumably a chilling effect if they were immediately behind those that were subject to the surveillance, but if there was an intervening force, that no longer would be true. Would that be a more specific fact upon which you could predicate your answer?

Mr. REHNQUIST. That is the type of fact situation I would want to know before attempting to answer yes or no on the existence of a chilling effect.

Senator TUNNEY. Senator Ervin went on to question you and said, "Is it your position the Government could take somebody and put somebody—I believe it is called a tail on me—-and this man could walk around and follow me everywhere I went, and because he didn't compel me to go to those places and just observe me, that I would have no legal remedy?" And your answer, "As I have said yes before, I think it is a waste of the taxpayers' money, it is an inappropriate function of.the executive branch, I don't think it raises a first amendment violation."

Mr. REHNQUIST. Subject to the qualification I gave to my previous answer to your question, I would stand by that statement.

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