ELECTRONIC EAVESDROPPING

A Constitution written in the eighteenth century does not easily accommodate events and developments two centuries later. This has been especially true of the fourth amendment guarantee against unreasonable searches and seizures. Originally designed to deal with British soldiers breaking into buildings to search for smuggled goods under overly broad general warrants, in this century it has had to deal with electronic eavesdropping. In 1928 Justice louis d. brandeis, dissenting in olmstead v. united states, observed that " writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wiretapping." Today, there are surveillance devices far more penetrating and efficient than wiretapping, such as tiny microphones that catch the softest utterance hundreds of feet away; pen registers that record telephone numbers; "beepers" that trace movements over miles and for days; and electronic intensifiers that permit photography in almost complete darkness. Continuing advances in miniaturization and surveillance technology will produce even more intrusive and undetectable devices.

At first, the Supreme Court refused to apply any of the bill of rights to these technologies. The first amendment ramifications were emphasized by Justice Brandeis in his Olmstead dissent when he pointed out the link between freedom of expression and invasions of personal security, a link established as early as the wilkes cases (1763–1770), the first great English cases establishing the right of personal security against governmental intrusion. The Olmstead majority did not even mention the First Amendment, however, and that silence continues—the First Amendment has played an insignificant role in constitutional analyses of electronic surveillance, although in united states v. united states district court (1972) the Supreme Court did address First Amendment considerations relevant to domestic national security intelligence surveillance. In Olmstead the Fifth Amendment was explicitly ruled inapplicable, and electronic surveillance was held not to be a form of compelled self-incrimination. That ruling has been reaffirmed in cases such as hoffa v. united states (1966).

It is the Fourth Amendment that has become the primary constitutional instrument for control of electronic surveillance, and even that development was delayed some forty years. In 1928, the Supreme Court ruled in Olmstead, over dissents by Justices Brandeis and oliver wendell holmes, that the Fourth Amendment was limited to physical intrusions on property (trespasses) that "seized" material objects, not intangible conversations. Olmstead was gradually eroded in the 1950s and 1960s, particularly with respect to conversations. The trespass aspect of Olmstead remained applicable, however, until 1967, when katz v. united states extended Fourth Amendment protection to conversations and other things that people reasonably expect to keep private.

During the forty years between Olmstead and Katz, electronic surveillance was not left completely uncontrolled, however. Although the trespass requirement produced the ruling in Goldman v. United States (1942) that a room microphone placed against the outside of a wall did not violate the Fourth Amendment, telephone wiretapping itself was held to be prohibited by section 605 of the communications act of 1934, and this prohibition was applied to both federal and state law enforcement officers in nardone v. united states (1937) and Benanti v. United States (1955). New York State also established statutory procedures for regulating electronic surveillance.

Empirical studies of wiretapping prior to 1968 showed that the controls established by these laws were ineffective. The Justice Department construed section 605 so narrowly that it was rarely invoked; judicial supervision of state wiretapping was virtually nonexistent. In addition, two forms of wiretapping and bugging remained completely uncontrolled: national security wiretapping, done pursuant to presidential directives; and surveillance with the consent of one of the parties to the conversation.

As to national security surveillances, the federal bureau of investigation (FBI) installed over 7,000 wiretaps and room microphones during 1940–1960, and one treasury agent additionally admitted to having installed over 10,000 wiretaps and microphones between 1934 and 1948; other federal agencies also did electronic eavesdropping. Although all of these intrusions were purportedly for national security purposes, many were revealed to be for crime control or political purposes, the most notorious of which was the massive electronic surveillance of martin luther king, jr. , between 1963 and 1968 ordered by fbi director J. edgar hoover.

Consent surveillance, either on a telephone extension or with informers equipped with secret radio transmitters or recorders, is probably the most widely practiced type of electronic surveillance, although so much of electronic surveillance remains secret that one cannot be certain. The Supreme Court had consistently held, before and after the Katz decision, that under both the Constitution and the Communications Act, consent surveillance is free from virtually all constitutional or statutory controls. Leading cases on this point include on lee v. united states (1952) and united states v. white (1971). The only federal restriction prior to 1968 was a very limited rule of the Federal Communications Commission barring secret recordings.

Ever since the 1937 Nardone decision, the Justice Department had sought authority for electronic surveillance. This effort gained impetus from Attorney General robert f. kennedy's campaign against organized crime in 1961–1963 and the revelation that FBI Director Hoover had illegally installed hundreds of taps and bugs on alleged organized crime figures under the "national security" authority, many of which stayed in place for many years; the disclosure of these surveillances placed scores of convictions in jeopardy. With the Court's decisions in berger v. new york (1967) and Katz, the stage was set for congressional action. In these two decisions the Court discarded the "trespass" requirement imposed by Olmstead, ruled that electronic surveillance was subject to Fourth Amendment requirements, and set out relatively detailed requirements for a valid statute, including: (1) a specification and detailed description of the place to be searched, the conversations to be overheard, and the crime under investigation; (2) a limit on the period of intrusion; and (3) adequate notice of the eavesdropping to the people overheard.

Six months after Katz, Congress passed the omnibus crime control and safe streets act (1968), Title III of which legitimated electronic surveillance for law enforcement purposes. The statute provides that electronic surveillance of conversations is prohibited, upon pain of a substantial jail sentence and fine, except for: (1) law enforcement surveillance under a court order; (2) certain telephone company monitoring to ensure adequate service or to protect company property; (3) surveillance of a conversation where one participant consents to the surveillance; and (4) national security surveillance insofar as it is within the President's inherent constitutional powers, whatever those may be. Law enforcement surveillance must meet certain procedural requirements, which include: (1) an application by a high ranking prosecutor; (2) surveillance for one of the crimes specified in Title III; (3) probable cause to believe that a crime has occurred, that the target of the surveillance is involved, and that evidence of that crime will be obtained by the surveillance; (4) a statement indicating that other investigative procedures are ineffective; and (5) an effort to minimize the interception.

A judge must pass on the application and may issue the order and any extensions if the application meets the statutory requirements. Shortly after the surveillance ends, notice must be given of the surveillance to some or all of the persons affected, as the judge decides, unless he agrees to postpone the notice. Illegally obtained evidence may not be used in any official proceedings, and a suit for damages may be brought for illegal surveillance, though a very strong good faith defense is allowed. In addition, the manufacture, distribution, possession, and advertising of devices for electronic surveillance for private use are prohibited.

The legislation is written in terms of federal officials but it also authorizes state surveillance if a state passes a law modeled on the federal statute, though the state may (as have some states, like Connecticut) impose more stringent requirements. More than half the states plus the district of columbia have passed such statutes, though many rarely use the authority. State surveillance is concentrated in New York, New Jersey, and Florida, mostly for narcotics and gambling offenses.

Title III raised many constitutional issues but almost all have been resolved in its favor. For example, a common contention is that electronic eavesdropping is inherently uncontrollable and necessarily intrudes on vast numbers of innocent people who use phones or rooms under surveillance, thus violating the particularization requirements of the Fourth Amendment. In order to meet this objection, and to avoid turning the surveillance authorization into a general warrant, Title III requires that interceptions be minimized. The Supreme Court, however, made this requirement very easy to meet by its decision in Scott v. United States (1978). The lower courts do not impose sanctions for the failure to minimize interception, partly because minimization is often very difficult to achieve or supervise. One federal judge in a major drug case excused the interception of seventy-three calls between a suspect's babysitter and her friends and classmates with the comment that although these conversations were indeed "teenage trivia … the eavesdropper, unless possessed of the prescience of a clairvoyant, could hardly predict when they might become relevant, or when they might be interrupted by an adult with more pressing problems." There are also many cases where police do not minimize interceptions even though they could. For example, some police listen to every conversation, including privileged conversations between lawyers and their clients, but record only those they think appropriate. In one case, it was accidentally revealed that police had recorded all conversations but had prepared a minimized set for use in court. Where room microphones are used, minimizing the interceptions is virtually impossible, especially if the microphones are placed in areas to which the public has access.

The Berger case also seemed to require that the interception be limited to specific and quite short time periods. Title III, however, permits thirty-day authorizations on a twenty-four-hour per day basis, with an unlimited number of extensions, and many interceptions remain in continuous operation for many months. The Report on Applications for Orders Authorizing or Approving the Interception of Wire or Oral Communications for 1981, issued by the Administrative Office of the United States Court, indicates that almost half the 106 federal interceptions reported for 1981 lasted thirty or more days.

One of the most significant ways of enforcing Fourth Amendment requirements is by imposing sanctions for their violation. Imposing these sanctions, of course, requires an awareness by the victim that a search has taken place, and of how it was conducted. With a conventional search, such conditions are easy to meet, but electronic surveillance is surreptitious and may never be discovered. The Supreme Court has therefore insisted that notice of the interception be given to the persons named in the application as targets of the surveillance. The statute, however, permits indefinite postponement of this notice, and this provision, too, has been upheld.

Critics have charged that judicial supervision has been minimal and ineffective, particularly on the state level. At hearings before the National Commission for the Review of Federal and State Laws Relating to Electronic Surveillance, many witnesses lamented the inability or unwillingness of state judges to supervise the process closely.

Passage of the statute, while effectively ending the constitutional debate, has not ended the dispute over the value of electronic eavesdropping. Critics have charged that the device is used almost exclusively for minor crimes involving gambling and drugs; is quite useless for major crimes and especially those involving organized crime, the avowed target of the statute; is very expensive; is largely unsupervised by the judiciary; and has invaded the privacy of millions. For support, they rely on the staff studies of the National Commission. Proponents reply that the technique has produced some very useful results, that many of the problems are those attending any new technique, and that more sophisticated use will produce better results. The opposing views were set out in detail in the Report of the National Commission; over a vigorous minority dissent the majority of the commission supported the use of electronic surveillance under the statute, with some modification.

Two types of surveillance remain uncontrolled by Title III: consent intrusions and national security surveillance. Title III totally exempts interceptions by government officials if an official is a party to the conversation of if there is consent by one of the parties; a private interception that is consented to is also exempt, unless the interception is for the purpose of committing a tortious, criminal, or "other injurious act," the meaning of which is not clear. Several states, however, have imposed more stringent requirements on consent surveillance than the federal statute, such as a warrant, either by statute (California, Georgia) or under their own state constitutions (Alaska, Montana). The Supreme Court, however, continues to rule in cases like United States v. White (1971) that consent surveillance does not implicate the Fourth Amendment.

National security surveillance continues to pose difficult constitutional questions. Presidents since franklin d. roosevelt have claimed inherent executive power to use electronic surveillance to obtain intelligence for national security purposes, and have authorized such intrusions on their own, without prior judicial approval. Most courts have upheld such a power, where national security surveillance involving foreign powers and agents is concerned. But where American citizens or groups are targeted for domestic security purposes, the Supreme Court, in United States v. United States District Court, ruled unanimously that the President has no inherent power to use warrantless electronic surveillance. The Court did suggest that Congress could authorize procedures for domestic intelligence gathering that are less stringent than those of Title III for law enforcement, but so far Congress has not done so.

Intelligence gathering for foreign security purposes is now governed by statute. The 1976 Report of the Senate Select Committee to Study Governmental Operations with Respect to the Intelligence Agencies disclosed massive abuses of executive power to tap telephones and bug rooms for national security purposes, often with the approval of the incumbent President. These abuses included taps on the telephones of National Security Agency advisers authorized by President richard m. nixon in 1969; on the Los Angeles Chamber of Commerce in 1941; on congressmen in the early 1960s in connection with the "sugar lobby"; and FBI taps and bugs on Martin Luther King, Jr., to find "communist" influence. From 1940 to 1975, the FBI alone installed some 10,000 taps and bugs; the National Security Agency, the Central Intelligence Agency, local police, and many other governmental agencies have also engaged in national security surveillance.

These disclosures resulted in the passage in 1978 of the Foreign Intelligence Surveillance Act, which requires approval from a court for national security surveillances of foreign powers or agents. The President is denied extrastatutory inherent or other power to use electronic surveillance for foreign intelligence within the United States—though not outside—and no Americans may be eavesdropped upon unless their activities have some element of criminality about them. The court operates secretly, and there have been very few published rulings and very little public information about it. The constitutionality of this act and its procedures—which are much less demanding than those under Title III for law enforcement purposes—has been sustained.

The courts have also tried to grapple with other forms of electronic surveillance. In Smith v. Maryland (1979) pen registers, which record the telephone numbers called, were held outside Title III and not in conflict with the Fourth Amendment; the Supreme Court concluded that the user has no reasonable expectation of privacy in the numbers called. Electronic signaling devices ("beepers") attached to cars to enable their movements to be traced have also been held to be without Fourth Amendment protection because cars are generally traced while on public streets and highways (United States v. Knotts, 1983) ; if the device is attached to a container or other item that is taken into a private area, however, a warrant and probable cause are required (United States v. Karo, 1984).

In 1928, after describing the dangers that the emerging modern technology presented to individual liberty, Justice Brandeis asked, "Can it be that the Constitution affords no protection against such invasions of individual security?" Almost a half century later, it is clear that such protection is available—if the nation wants it.

Herman Schwartz
(1986)

(see also: Criminal Justice and Technology.)

Bibliography

Administrative Office of the United States Courts 1968–1982 Reports on Applications for Orders Authorizing or Approving the Interception of Wire or Oral Communications. Washington, D.C.: Administrative Office.

American Bar Association Project on Standards for Criminal Justice 1974 Standards Relating to the Administration of Criminal Justice; Electronic Surveillance. Pages 33–52. New York: Institute of Judicial Administration.

Carr, James G. 1977 (with 1983 supp.) The Law of Electronic Surveillance. New York: Clark Boardman.

National Commission for the Review of Federal and State Law Relating to Electronic Surveillance 1976 Report and Staff Studies. Washington, D.C.: Government Printing Office.

Schwartz, Herman 1968 The Legitimation of Electronic Eavesdropping: The Politics of "Law and Order." Michigan Law Review 67:455–510.

——1977 Taps, Bugs, and Fooling the People. New York: Field Foundation.

United States Congress, Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities 1976 III Final Report. 94th Congress, 2d session.