[1439] in cryptography@c2.net mail archive
Re: US Wiretaps Before 1968?
daemon@ATHENA.MIT.EDU (Ted Morris)
Mon Sep 8 13:27:38 1997
Date: Mon, 8 Sep 1997 13:23:37 -0400 (EDT)
To: CRYPTOGRAPHY@c2.net
From: Ted Morris <morriswe@email.uc.edu>
Steven Bellovin just wrote:
>There may be something a bit odd here. The textbook I have lists the case
>as Berger vs. New York, with the >cite I gave -- 87 S.Ct. 1873. That
>number seemed a bit odd, but the book itself is copyright 1968, so they
>>may have had to publish before the regular reporter picked up the case.
>
>I have no explanation for the different name, unless of course it's a
>different case. This one was very definitely >a state law at issue, which
>I wouldn't expect in a case Foo vs. United States.
>
>But you're right -- my recollection was that the 1967 wiretap case did
>involve Katz.
The confusion here is probably due to the fact that in 1967 the Supremes
handed down two related decisions concerning wiretapping, Berger v. New
York [388 U.S. 41 (1967)] and Katz v. United States [389 U.S. 347(1967)].
Berger declared a New York state wiretapping statute unconstitutional on
the grounds that it didn't provide for adequate judicial supervision.
Briefly, they ruled that the statute wasn't specific enough in several ways
(it didn't specify the crimes for which wiretaps would be legitimate, it
didn't specify what places could be wiretapped, and it didn't specify the
persons or items of information that came under the scope of the statute).
In addition, the statute didn't specify limitations (so that a wiretap
might easily become a "general search"), it didn't require that notice be
given to persons whose privacy would be/was invaded by the wiretap, and it
didn't require the police to inform the court concerning the information
that had been obtained through the wiretap. So the Supremes ruled that the
statute didn't meet the requirements laid down in the Fourth Amendment,
Katz overturned the Supremes verdict in Olmstead (a 1928 5-4 decision, in
which the majority ruled that wiretapping wasn't covered by the Fourth
Amendment; the case is best known for Justice Louis Brandeis' often-quoted
dissent), ruling that wiretapping constituted a search under the Fourth
Amendment. Katz was an L.A. bookie who ran his operation from a phone
booth. The FBI installed a bugging device on the outside of the phone booth
to record Katz's discussions of his operations with associates in Boston
and Miami. Justice Potter Stewart argued that the Fourth Amendment
"protects people, not places" -- so it was a "search." Justice John Harlan
proposed a test for "reasonable expectation of privacy" -- (i) that a
person have an actual (subjective) expectation of privacy, and (ii) that
the person's expectation is on that society is prepared to recognize as
reasonable. On this basis, the Supremes concluded that Katz's expectation
of privacy was reasonable, so the FBI's wiretap was "unreasonable" -- thus
making the case a violation of the "reasonable search and seizure"
provision of the Fourth Amendment.
Hope this helps.
Cheers,
Ted Morris
