Wiretapping

Congress enacted the first federal wiretap statute as a temporary measure to prevent disclosure of government secrets during World War I. Later, it proscribed intercepting and divulging private radio messages in the Radio Act of 1927, but did not immediately reestablish a federal wiretap prohibition. By the time of the landmark Supreme Court decision in Olmstead v. United States, 277 U.S. 438 (1928), however, at least forty-one of the forty-eight states had banned wiretapping or forbidden telephone and telegraph employees and officers from disclosing the content of telephone or telegraph messages or both.

In Olmstead, the majority held that the Fourth Amendment’s search and seizure limitations did not apply to government wiretapping accomplished without a trespass onto private property. In response to that ruling, Congress enacted the 1934 Communications Act by expanding the Radio Act’s proscription against intercepting and divulging radio communications to include intercepting and divulging radio or wire communications.

The Federal Communications Act outlawed wiretapping, but it said nothing about the use of machines to surreptitiously record and transmit face-to-face conversations. In the absence of a statutory ban the number of surreptitious recording cases decided on Fourth Amendment grounds surged and the results began to erode Olmstead’s underpinnings.

Erosion, however, came slowly. Initially the Court applied Olmstead’s principles to these electronic eavesdropping cases. Thus, the use of a dictaphone to secretly overhear a private conversation in an adjacent office offended no Fourth Amendment precipes because no physical trespass into the office in which the conversation took place had occurred. Goldman v. United States, 316 U.S. 129 (1942). Similarly, the absence of a physical trespass precluded Fourth Amendment coverage of the situation where a federal agent secretly recorded his conversation with a defendant held in a commercial laundry in an area open to the public. On Lee v. United States, 343 U.S. 747 (1952). On the other hand, the Fourth Amendment did reach the government’s physical intrusion upon private property during an investigation, as for example when they drove a “spike mike” into the common wall of a row house until it made contact with a heating duct for the home in which the conversation occurred. Silverman v. United States, 365 U.S. 505 (1961).

Each of these cases focused upon whether a warrantless trespass onto private property had occurred, that is, whether the means of conducting a search and seizure had been so unreasonable as to offend the Fourth Amendment. Yet in each case, the object of the search and seizure had been not those tangible papers or effects for which the Fourth Amendment’s protection had been traditionally claimed, but an intangible, a conversation. This enlarged view of the Fourth Amendment could hardly be ignored, for [i]t follows from. . . Silverman. . . that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of papers and effects.” Wong Sun v. United States, 371 U.S. 471, 485 (1963).

Soon thereafter the Court repudiated the notion that the Fourth Amendment’s protection was contingent upon some trespass to real property. Katz v. United States, 389 U.S. 347 (1967).

One obvious consequence of Fourth Amendment coverage of wiretapping and other forms of electronic eavesdropping is the usual attachment of the Amendment’s warrant requirement. To avoid constitutional problems and at the same time preserve wiretapping and other forms of electronic eavesdropping as a law enforcement tool, some of the states established a statutory system under which law enforcement officials could obtain a warrant, or equivalent court order, authorizing wiretapping or electronic eavesdropping.

The Court rejected the constitutional adequacy of one of the more detailed of these state statutory schemes in Berger v. New York, 388 U.S. 41 (1967). The statute was found deficient its failure to require:

related; 388 U.S. at 58-60.
 * a particularized description of the place to be searched;
 * a particularized description of the crime to which the search and seizure
 * a particularized description of the conversation to be seized;
 * limitations to prevent general searches;
 * termination of the interception when the conversation sought had been seized;
 * prompt execution of the order;
 * return to the issuing court detailing the items seized; and
 * any showing exigent circumstances to overcome the want of prior notice.

Berger helped persuade Congress to enact Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 87 Stat. 197, 18 U.S.C. 2510-2020 (1970 ed.), a comprehensive wiretapping and electronic eavesdropping statute that not only outlawed both in general terms but that permitted federal and state law enforcement officers to use them under strict limitations designed to meet the objections in Berger.

A decade later another Supreme Court case persuaded Congress to supplement Title III with a judicially supervised procedure for the use of wiretapping and electronic eavesdropping in foreign intelligence gathering situations. When Congress passed Title III there was some question over the extent of the President’s inherent powers to authorize wiretaps &mdash; without judicial approval &mdash; in national security cases. As a consequence, the issue was simply removed from the Title III scheme. After the Court held that the President’s inherent powers were insufficient to excuse warrantless electronic eavesdropping on purely domestic threats to national security (United States v. United States District Court, 407 U.S. 297 (1972)), Congress considered it prudent to augment the foreign intelligence gathering authority of the United States with the Foreign Intelligence Security Act of 1978 (FISA), 92 Stat. 1783, 50 U.S.C. §§1801-11. The Act provides a procedure for judicial review and authorization or denial of wiretapping and other forms of electronic eavesdropping for purposes of foreign intelligence gathering.

In 1986, Congress recast Title III in the Electronic Communications Privacy Act (ECPA), 100 Stat. 1848, 18 U.S.C. §§2510-21. The Act followed the general outline of Title III with adjustments and additions. Like Title III, it sought to strike a balance between the interests of privacy and law enforcement, but it also reflected a Congressional desire to avoid unnecessarily crippling infant industries in the fields of advanced communications technology, H.R. Rep. No. 647, 99th Cong., 2d Sess. 18-9 (1984); S. Rep. No. 541, 99th Cong., 2d Sess. 5 (1986).

The Actalso included new protection and law enforcement access provisions for stored wire and electronic communications and transactional records access (e-mail and phone records), 18 U.S.C. §§2701-10, and for pen registers as well as trap and trace devices (devices for recording the calls placed to or from a particular telephone). 18 U.S.C. §§3121-26.

Over the years, Congress has adjusted the components of Title III/ECPA or FISA. Sometimes in the interests of greater privacy; sometimes in the interest of more effective law enforcement or foreign intelligence gathering. The 107th Congress, for instance, amended the basic statutes in the USA PATRIOT Act, P.L. 107-56, 115 Stat. (2001); the Intelligence Authorization Act for Fiscal Year 2002, P.L. 107-108, 115 Stat. 1394 (2001); the 21st Century Department of Justice Appropriations Authorization Act, P.L. 107-273, 116 Stat. 1758 (2002); and the Department of Homeland Security Act, P.L. 107-296, 116 Stat. 2135 (2002).