This was untenable, and in 1967 the Olmstead decision collapsed as another Supreme Court articulated a wildly different privacy standard. The justices were this time dealing with small-time gambler Charles Katz, who had been arrested in Los Angeles after another warrantless wiretap. Katz routinely left his home and walked down to a group of three public pay phones, where he placed a series of calls at the same time each day. FBI agents investigating Katz for interstate gambling placed microphones on the outside of two phone booths; the phone company put an "out of order" sign on the third. A recording device on top of the booths captured Katz's conversation, which consisted of cryptic phrases like "give me Duquesne minus 7 for a nickel!" No warrant had even been sought.
The government had an argument to defend this position, the so-called "third-party doctrine." Once the target of surveillance had voluntarily revealed information to someone else, the idea went, it was no longer quite so private and so could be obtained from that third party with a mere subpoena, which didn't require the high "probable cause" standard of evidence. This doctrine explained why remotely stored e-mail was so easy to access under the SCA, despite the fact that no one "reveals" the contents of their e-mail to their e-mail provider in the same way they might show a letter to a friend. Not surprisingly, the third party doctrine has been roundly criticized.
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"Prospective" surveillance is generally covered by a different law, the Wiretap Act, and by the much more stringent requirement to obtain a "probable cause" warrant first. Orin Kerr, a leading Internet privacy scholar, notes that "prospective surveillance tends to raise difficult questions of how the communications should be filtered down to the evidence the government seeks" and that "retrospective surveillance usually presents a less severe filtering challenge."
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