tion that a cellular network need not be a surveillance network; relatively simple public-key technology can be used to create a private overlay, allowing subscribers to make the most of cellular technology without the fear of creating a data record that can be exploited by others.

IllustratIon By aleX WIllIaMson

Telephony and the Bill of Rights
During the U.S.’s colonial period, Brit-
ish troops used writs of assistance as
the basis for general searches for con-
traband in the homes of the colonists. 8
In an effort to prevent such searches in
the new republic, the Fourth Amend-
ment was included in the Bill of Rights.
The Fourth Amendment protects
against “unreasonable searches and
seizures,” and states that no warrant
shall issue “but upon probable cause.”
The amendment’s language says noth-
ing, however, about telephones or elec-
tronic communication. The means
by which legal protection against tel-
ephonic surveillance evolved through
judicial interpretation of the Fourth
Amendment is summarized here.

 

The [Fourth] 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.

Chief Justice William Howard Taft
Olmstead v. United States,
The first of the two holdings of the
Olmstead decision—the interception
of a conversation is not seizure—was
reversed in Berger v. New York (1967).
Acting under a New York law of the
time, police planted listening devic-
es in the office of an attorney named
Ralph Berger. Berger was subsequent-
ly indicted, tried, and convicted for
conspiracy to bribe a public official.
In its opinion, the Supreme Court fo-
cused on the extremely broad author-
ity granted by the statute: Law enforce-
ment authorities were only required
to identify the individual and the
phone number to be tapped in order
to obtain authorization for a wiretap.
Likening this type of warrant to the
general warrants used by the British in
the American colonies, the Court over-
turned the New York statute. In doing
so, the Court held that conversations
were indeed protected by the Fourth
Amendment, and that the intercep-