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.
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