ping capability into their networks. This resulted in the Communications Assistance for Law Enforcement Act (CALEA) of 1994.

It is a long way from putting clips on wires to having government standards for electronic eavesdropping. These changes, made in the name of security, have created risks. How did this come about? Does wiretapping actually make us more secure?

We start with an overview of the convoluted history of wiretapping, focusing on the U.S., and then turn to issues of privacy and security.

the Legal side

The telegraph was invented in the 1830s, the telephone in the 1870s. Police wiretapping appeared in the 1890s but saw limited use until Prohibition when the production, sale, and transport of alcoholic beverages were made illegal in 1919. Law or no law, alcohol remained popular, and illegal enterprises grew to serve the demand.

Wiretapping was the perfect tool for investigating crimes such as these that lack victims who complain and give evidence to the police; it performed a search that was invisible and could provide law enforcement with detailed information about the criminal activity. Wiretapping produced search-like results without requiring intrusion into the suspect’s property. Was it to be regulated as a violation of the right to be free from unreasonable searches and seizures guaranteed by the Fourth Amendment? Decades were to pass before this question was answered.

In the 1928 Olmstead case, the Supreme Court ruled that wiretapping was not a search and therefore did not violate the Fourth Amendment. Following the Federal Communications Act of 1934, which made “interception and divulgence” of wired communications illegal, the Supreme Court changed direction. In a 1937 ruling based on the new law, the court refused to allow wiretap evidence against a bootlegging suspect.

The Communications Act might have put an early end to wiretapping’s law-enforcement career, but the Justice Department interpreted the court decision narrowly, permitting interception as long as the results were not divulged outside the federal government. The FBI took advantage of this interpreta-

iconic images of wiretapping and surveillance were made popular by movies and television; from the memorable film noir approach (page 43) to francis ford coppola’s 1974 thriller The Conversation, released before and during the Watergate era, and often cited as the classic film on electronic surveillance and potential threat posed by “new” technologies.

 

physical ones.

The following year, Congress addressed wiretapping and bugging in Title III of the Omnibus Crime Control and Safe Streets Act, which set out the circumstances under which wiretap orders could be obtained for criminal investigations. Congress saw wiretaps as a particularly insidious search and made the warrant requirements more stringent than those for normal searches (though these have been relaxed somewhat over the years).

In 1978 Congress passed the Foreign Intelligence Surveillance Act

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“the Wire,” a recent u.s. cable television show, hinged around tracking police investigations of criminal activities using modern surveillance technologies, including cellphones and sms messaging.

 

tion to continue wiretapping without court orders—sometimes with Department of Justice oversight, sometimes not—for another 30 years.

The Communications Act said nothing about bugs, which listen to sounds in the air rather than signals on wires. This led to an odd split: bugs yes, wiretaps no. Over the decades, the Supreme Court saw less and less distinction. In 1967, in the Katz decision, it finally recognized that “the Fourth Amendment protects people, not places.” Henceforth, warrants would be as much a requirement of electronic searches as