[1428] in cryptography@c2.net mail archive
Re: US Wiretaps Before 1968?
daemon@ATHENA.MIT.EDU (Steven Bellovin)
Fri Sep 5 23:53:30 1997
To: Kent Borg <kentborg@borg.org>
cc: CRYPTOGRAPHY@c2.net
Date: Fri, 05 Sep 1997 22:10:39 -0400
From: Steven Bellovin <smb@research.att.com>
Right now I am listening to Denning, Freeh, et al, in
yesterday's testimony before the Senate, and am annoyed that
Freeh keeps saying that all the FBI wants is to maintain what
has been possible since 1968.
But that gets me wondering, what was the legal status of US
telephone wiretaps before 1968?
I don't have the energy tonight to do a full summary. Briefly, though,
in 1937 the Supreme Court ruled (302 US 379) that wiretaps violated the
Federal Communications Act. It was a statutory provision, then, that
barred Federal wiretaps, rather than a constitutional issue. There is
reason to believe that this Federal law was in response to a 1928
Supreme Court decision (277 US 438) that held that wiretaps were not an
illegal warrantless search.
Assorted states explicitly permitted wiretaps by law enforcement; in
1953 (344 US 199), the Court ruled that such wiretaps were admissible
in state courts, but not Federal courts -- they felt that states were
not bound by this Federal rule. "Since we do not believe that Congress
intended to impose a rule on evidence on the state courts, we do not
decide whether it has the power to do so". The opinion cites no
evidence for this belief, though it notes that many state courts had
held that it did not apply to them.
In this case, Justice Douglas was the only dissenter; he felt that
wiretaps without warrants violated the 4th Amendment. Though whether
or not that Amendment applied to the states was unsettled in 1953, the
state statute in question (Texas) explicitly barred evidence obtained
in violation of the U.S. constitution. Douglas noted that there was a
history of Supreme Court decisions upholding wiretaps; he felt that
these were wrong and should be reversed.
The 1968 law was indirectly prompted by a 1967 decision. (This, btw,
is a great opinion if you're interested in the history of wiretap and
bugging law. For example, it notes that the first statute against
eavesdropping was passed by California in 1862.) In this case -- a
bugging case, but the opinion discussed wiretaps as well as bugs -- the
Court rule by a 6-3 margin that wiretaps were, in fact, searches
requiring warrants under the 4th Amendment. They further noted that in
other cases they had ruled that the 14th Amendment meant that this
Amendment was in fact binding on the states, and that state statutes
permitting wiretaps had to comply with the usual rules on searches.
The opinion has a number of other interesting points.
As the [President's Crime] Commission reports, there can be no
question about the serious proptions of professional criminal
activity in this country. However, we have found no empirical
statistics on the use of electronic devices (bugging) in the
fight against organized crime. Indeed, there are even figures
available in the wiretap category which indicate to the
contrary... As the Commission points out, "wiretapping was the
mainstay of the New York attack against organized crime until
Federal court decisions intervened. Recently chief reliance in
some offices has been placed on bugging, where the information
is to be used in court. Law enforcement officials believe that
the successes achieved in some parts of the State are
attributable to a combination of dedicated and competent
personnel and adequate legal tools; and that the failure to do
more in New York has resulted primarily from the failure to
commit additional resources of time and men," rather than
electronic devices.
Or, there's this:
We are also advised by the Solicitor General of the United
States that the Federal Government has abandoned the use of
electronic eavesdropping for "prosecutorial purposes..."
Despite these actions of the Federal Government there has been
no failure of law enforcement in that field. [N.B. Earlier
parts of the opinion make clear that wiretapping was often
banned, but bugging was generally permitted. Given the Federal
statutory prohibition against the latter, this passage
presumably refers to bugs.]
In the 1960's, though, with "law and order" being one of the favorite
phrases of the right, there was a great deal of pressure to legalize
Federal wiretaps. And the 1967 decision, in striking down the New York
law on many different grounds, gave very clear guidance to Nixon's
friends. Accordingly, his Omnibus Crime Control Act legalized Federal
(and state) wiretaps under moderately strict guidelines -- guidelines
that in fact were drafted to meet the very precise objections of the
Court.
As for Justice Douglas -- he of course concurred in the 1967 decision,
but he would have gone further. His separate concurring opinion claimed
that all wiretaps and bugs were inherently unconstitutional -- the 4th
Amendment requires that warrants be based on an oath (among other
things) "particularly describing the place to be searched, and the
persons or things to be seized". He felt -- and the Court disagreed,
then and now -- that a wiretap by its nature would pick up all sorts of
other irrelevant (and hence protected) conversations. This point has
been addressed in the current wiretap statutes by the "minimization"
procecures.
There's a long dissent by Justice Black. I'll leave it to others to
summarize it.
