Wiretapping is one form of electronic eavesdropping and specifically references the monitoring of phone (landline or cellular) conversations by a third party. The term wiretap came about because historically it was an actual electrical tap placed on the physical telephone line that would allow conversations to be overheard. This required the third party to be in the direct vicinity within a restricted radius (typically no more than a few neighborhood blocks away) of the target switchbox for the telephone lines. The act of wiretapping is not restricted to these historic methods because of technological advancements that allow the third party to be in a location far away from the physical vicinity of the target telephone. Conversations using cellular phones can be “tapped into” with aid from the cellular provider following a court order and detailed affidavit. Using triangulation methods of cellular towers, the location of the phone can also be captured. Conversations can be recorded via wiretaps from conventional phones (including phone booths), smartphones, standard cellular phones, and “push-to-talk” phones that use technology similar to two-way radios.
The practice of wiretapping continues to be a polarizing and hotly debated issue in the United States because of the potential for invasions of privacy if misused by the government and its law enforcement entities.
Fourth Amendment Concerns and Established Precedent
The Fourth Amendment to the U.S. Constitution provides citizens protection against unreasonable searches and seizures. The Fourth Amendment is intended to limit overzealous behavior by the police by requiring that all warrants for arrests, searches, and seizures be issued by a neutral, detached magistrate upon receiving adequate probable cause that the arrest, search, or seizure is justified. The practice of wiretapping by law enforcement in the United States has called into question many Fourth Amendment concerns. For instance, is a telephone conversation considered private and confidential? Can capturing a conversation be considered a search or seizure?
The U.S. Supreme Court has spent many decades building precedent for the act of wiretapping, beginning in 1928 in Olmstead v. United States. This case occurred during the Prohibition era, and Roy Olmstead was suspected of violating federal alcohol prohibition laws. After capturing incriminating statements in conversations between Olmstead and his lawyer via a wiretap on his phone, Olmstead was convicted. The court ruled that wiretaps were not considered to be searches and seizures for two main reasons. First, the court decided that at no time did the police trespass on the defendant’s premises, so no property was “searched.” Second, only conversations were obtained, so no property was tangibly “seized.” Therefore, the actions of the police did not violate the Fourth Amendment, and Olmstead’s conviction stood.
However, in 1934 Congress enacted the Communications Act. Section 605 of this act prohibited anyone from intercepting communications and disclosing their contents unless authorized by one of the parties involved. This somewhat limited the use of wiretap evidence in federal court, yet the Federal Bureau of Investigation (FBI) continued to utilize wiretaps, claiming that matters of national security were not prohibited under Section 605.
In the 1960s, the Supreme Court revisited this notion that a search could possibly take place without a physical trespass on a person’s property. In 1967, the Supreme Court overturned the Olmstead decision in the landmark case Katz v. United States. The standards for Fourth Amendment protections outlined in Katz remain the precedent today.
In Katz, the FBI attached a listening device to the exterior of a public phone booth to record conversations regarding illegal gambling activities. The court ruled that the public phone booth was a constitutionally protected area where the user had a reasonable expectation of privacy, even though no property was physically trespassed by the agents. Now, under Katz, requirements for lawful wiretapping (also known as “lawful interception”) include: warrants issued based on adequate probable cause, describing the conversations to be overheard (that is, the conversations must be about unlawful behavior), and the names of the subjects to be overheard. The period of interception must also be limited, and the interception must be terminated once the desired information is obtained.
Interestingly, the Supreme Court has held that other forms of electronic eavesdropping, to include hidden microphones and hidden cameras, do not violate the Fourth Amendment. The rationale provided by the court has been that a person assumes the risk that whatever he or she says may be overheard by someone else and reported to the police. This is unlike a telephone conversation, in which only one party (on either end of the telephone line) can be reasonably overheard by someone else without the enhancement of a wiretapping device.
Further guidelines and restrictions regarding wiretaps were outlined in the Federal Wire Tap Act, which was part of the Omnibus Crime Control and Safe Streets Act of 1968. This act, which updated the Federal Communications Act of 1934, recognized the need to balance the public’s right to privacy with the needs of law enforcement to ensure public safety. Title III of the act established further procedures for obtaining warrants to authorize wiretaps by government officials and regulated the disclosure and use of authorized intercepted communications by law enforcement officials. Title III originally covered only “wire” and “oral” conversations, but was later revised in 1986 to include electronic communications (e.g., e-mail, voice mail).
The USA PATRIOT Act and Wiretapping
The PATRIOT Act was enacted in 2001 following the terrorist attacks on September 11, 2001, and dramatically expanded the federal government’s ability to investigate domestic criminal offenses under special circumstances. If the matter is one of national security, the burden of proof is reduced from probable cause to reasonable suspicion in very specific situations.
Regarding wiretapping, this act allows the federal government to conduct “roving wiretaps.” Previously, a separate court order was required per phone before a wiretap could occur, regardless of whether the same person held multiple phones. Now under the PATRIOT Act, if there is reasonable suspicion that a particular person is a threat to national security, a roving wiretap (i.e., one court order) covers taps on all phones (cellular or conventional), e-mail accounts, and other means of communication used by that person.
The PATRIOT Act was reauthorized in 2006 by the George W. Bush administration and again in 2011 by the Barack Obama administration, which extended the life of roving wiretaps for four more years. The act remains a highly controversial piece of legislation. Critics of the PATRIOT Act have argued that the federal government has abused the powers granted to it in the act by investigating Americans who have no connection to terrorism or terrorist activities, thus violating their Fourth Amendment rights. Supporters of the act believe these provisions are necessary in order to ensure the safety of U.S. citizens, but also to level the playing field against criminals that are using ever-increasingly sophisticated methods to evade detection and commit crimes on U.S. soil.
- Pikowsky, Robert. An Overview of the Law of Electronic Surveillance, Post September 11, 2001. Moscow: University of Idaho Publication, 2002.
- S. Department of Justice. “Federal Statutes” (2003). http://it.ojp.gov/defaultaspx?area=privacy&page=1284 (Accessed May 2013).
- S. Department of Justice. “29 Electronic Surveillance —Title III Affidavits.” http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00029.htm (Accessed May 2013).
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