8 Mark Washofsky

The amendment itself shows that the search is to be of material things—the person, the house, his papers, or his effects. The description of the warrant necessary to make the proceeding lawful is that it must specify the place to be searched and the person or things to be seized.... The amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants. By the invention of the telephone 50 years ago, and its application for the purpose of extending communications, one can talk with another at a far distant place. The language of the amendment cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant's house or office. The intervening wires are not part of his house or office any more than are the highways along which they are stretched.

In dissent, meanwhile, Justice Louis Brandeis rejected this understanding of the Fourth Amendment as overly literal. The specific examples the amendment mentions are to be understood in light of its general purpose. When the text was adopted, to be sure,“force and violence”— the invasion of a person’s private domain— were the only means by which the government could seize evidence from him without his consent.“But‘time works changes, brings into existence new conditions and purposes.” Subtler and more far-reaching means of invading privacy have become available to the government. Discovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.” In other words, said Brandeis, the Fourth Amendment is a valid source case from which to draw the analogy, because the essential similarities between it and the problem case outweigh the material differences between them.