Constitutional Restrictions on Wiretapping Essay

Wiretapping in the United States is governed primarily by two Federal Statutes, the Federal Wiretap Act also known as Title III of 1968 and the Foreign Surveillance Act 1978. Both Acts have been subsequently amended. (Friedman and Landers, 2006) The PATRIOT Act extended the power of law enforcers to use the Foreign Intelligence Surveillance Act. In general both statutes permits the use of wiretapping in the United States, but sets restrictions within the parameters of the US Constitution with respect to privacy and due process. Friedman and Landers, 2006) This paper examines the US approach to wiretapping and the constitutional constraints within which wiretapping is legalized.

I. What is Wiretapping? The term “wiretap” originated out of the practice of manipulating wires so that they were connected to a telephone line, permitting third parties to secretly listen to telephone conversations. (Keenan, 2005, 44) Modern technology in the information age has facilitated a more sophisticated means of wiretapping. Nowadays, wiretapping can be conducted by virtue of computers which are attached to telephone networks via routers and switchers. Friedman and Landers, 2005, 44) Today, wiretapping typically refers to any form of electronic surveillance and is considered to be a valuable investigative tool for law enforcement. Be that as it may, wiretapping is generally illegal unless a court order is first obtained, although warrantless wiretapping can be legal in prescribed circumstances related to national security. (Re: Directives Pursuant To Section 105B of the Foreign Intelligence Surveillance Act) In a 2002 survey, statistics reveal that judges will typically grant permission for wiretapping.

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In that year, out of 1,360 applications for leave to wiretap, only one application was rejected. (Friedman and Landers, 2005, 45) A. Eavesdropping on Private Conversations The statutory requirements for wiretapping essentially describe what amounts to eavesdropping. The Wiretap Act requires that in order to amount to wiretapping there must be wire and electronic communications, oral communication and interception. (Wiretap Act 1968) Wire communication is defined by the Wiretap Act as the transfer of human voice with the aid of “wire or other like connection” from the “point of origin” to the “point of reception. (Wiretap Act 1968, Section 2510(1)) Cordless telephones were not included in the definition of wire communications. (Tyler v. Berodt, 877 F. 2d (8th Cir. 1989)) Cordless telephone conversations are protected under the Electronic Communications Privacy Act 1986. The Wiretap Amendment Act 1986 extended the definition of wire communications to include cellular telephones, electronic pages, electronic bulletin boards and electronic mail. (Wiretap Amendment Act 1986, Section 2511(1)(a))

The Wiretap Act defines intercept to refer to the “aural or other acquisition” of wire, electronic or oral communication content by virtue of “any electronic, mechanical, or other device. ” (Wiretap Act, 1968 Section 2510(4)) However, eavesdropping on an extension is excluded from protection under the Wiretap Act. (Wiretap Act, 1968 Section 2510(5(a), see also Platt v Platt 951 F. 2d 159 (8th Cir. 1989)) Oral communication is defined by the Wiretap Act 1968 as “any oral communication” made by a person who reasonably has an expectation that the communication will not be intercepted . Wiretap Act 1988 Section 2510(2)) In other words, the interception requirement indicates that the conversation in question is carried out by electronic means or by virtue of a cable or wire. Moreover, there must be a reasonable expectation of privacy. (United States v Clark 22 F. 3d 799 (8th Cir. 1994))

II. Early Restrictions on Wiretapping There have always been tension between the policy considerations that drive protection of privacy and the urgent need to facilitate investigative techniques of law enforcement. (Regan, 1995, 109) Even so, it was not until the 1920s that communications privacy became an issue. Regan, 1995, 111) By 1927, wiretapping was criminalized in at least twenty-five states, with the Attorney General taking a stand against wiretapping by the Department of Justice. Despite these developments, both federal and state factions occasionally engaged wiretapping for investigative purposes. (Regan, 1995, 111) The Department of Treasury which was responsible for regulating and managing Prohibition resorted to wiretapping when conducting investigations. (Regan, 1995, 111)

This practice came before the US Supreme Court in the case of Olmstead v United States 277 U. S. 438 (1928). A. 1928 Supreme Court Decision In Olmstead v United States 277 U. S. 438 (1928), Roy Olmstead and others had been convicted of bootlegging under federal Prohibition laws. The evidence used against them at the trial had been largely obtained by virtue of wiretapping. The trial had been conducted in Washington where wiretapping violated that state’s law. Despite the law, the trial judge allowed the wiretapping into evidence. The wiretapping was primarily based on federal agents’ interception of telephone conversations.

Olmstead and others challenged the constitutionality of these wiretaps, arguing that their Fourth and Fifth Amendment rights had been infringed. (Olmstead v United States 277 U. S. 438 (1928)) The Fourth Amendment generally provides protection against unreasonable searches and seizures by government officials and is usually construed to allow protection of privacy in ones on personal effects. (US Constitution, 4th Amendment) The Fifth Amendment provides for the right against self-incrimination in that no person can be compelled to give evidence against himself.

The Fifth Amendment also protects against deprivation of private and personal property without due process. (US Constitution, 5th Amendment) In delivering the majority opinion of the US Supreme Court, Chief Justice William Howard Taft explained that the Fifth Amendment would only apply if it could be found that Fourth Amendment rights had been infringed. Considering that the defendants can not be said to have been compelled to engage in the telephone conversations that they had conducted. Therefore, the case would be decided on Fourth Amendment considerations.

To this end, Justice Taft explained that there was no physical entry on the appellants’ property and the evidence was obtained by virtue of “the sense of hearing” and from a “great distance via telephone”. (Olmstead v United States 277 U. S. 438 (1928)) Moreover, the intercepting wires did not form part of the appellants’ property and as such cannot be protected by the Fourth Amendment. (Olmstead v United States 277 U. S. 438 (1928)) In other words the evidence obtained had not been obtained by virtue of search and seizure in contravention of the Fourth Amendment.

B. Telephone Conversations Not Protected by the Fourth Amendment Olmstead v United States generally ruled that wiretapping telephone conversations, as a result of the remote location of the intrusion was not protected by the Fourth Amendment. However, Katz v United States 389 US 347 (1967) reversed the Olmstead ruling, essentially holding that should the individual have a reasonable expectation that his or her telephone conversations were private, that conversation was protected from unreasonable search and seizure pursuant to the Fourth Amendment. Katz v United States 389 US 347 (1967)) The US Supreme Court went on to hold that a search warrant would be necessary for the use of wiretapping and would necessarily have time constraints. (Katz v United States 389 US 347 (1967)) In other words, unless there is reasonable expectation of privacy, telephone conversations, secretly recorded are not protected by the Fourth Amendment. (Katz v United States 389 US 347 (1967)) The test insists that the reasonable expectation of privacy must be such that society regards it as objectionably reasonable.

In Warshak v United States of America No. 06-4092 (2007) the United States Court of Appeals extended the telephone conversation ambit of privacy protection to the content contained in email messages. (Warshak v United States of America, No. 06-4092 (2007)) C. Are the Restrictions Adequately Protected by Privacy The restrictions against wiretapping and eavesdropping on private telephone conversations, as previously discussed are protected by the Fourth Amendment as interpreted by the US judiciary.

In general, the reasonable expectation of privacy is the guiding post and commands that intrusions into private telephone conversations may only be authorized by the court on the issue of a warrant. A warrant will not be returned unless there are no other means by which criminal or subversive conduct can be detected and that conduct must be of a serious nature. (Henley, 2005, 17-28) Cumulatively, these protections dictate that a law abiding citizen is not at risk of having his or her private telephone conversations subjected to government intrusion.

For instance, a confession of guilt in the presence of a secret informant would not invoke protection of privacy since there would be no reasonable expectation of privacy. (Hoffa v. United States, 385 U. S. 293 (1966)) Similarly, when an individual conducts illegal commercial transactions in his or home, there can be no reasonable expectation of privacy. (Lewis v. United States, 385 U. S. 206 (1966)) To this end the restrictions on wiretapping telephone conversations are adequate. The underlying goal is to balance the right to privacy against the security of the nation as a whole for the detection and prevention of serious crimes.

D. Basis of Court’s Initial Ruling The basis of the US Supreme Court’s ruling in Olmstead v United States was founded on the “trespass doctrine. ” (Katz v United States 389 US 347 (1967)) The US Supreme Court took the position that the Fourth Amendment only protects the person rather than places and therefore protection cannot be determined by reference to “the presence or absence of a physical intrusion into any given enclosure. ” (Katz v United States 389 US 347 (1967)) E. Ruling Considered Controversial

Public reaction to the Olmstead ruling as reflected in the media was a manifestation of the controversy created by the ruling. A New York Times article published immediately following the US Supreme Court’s ruled expressed the belief that as a result of the court’s ruling the law would facilitate “universal snooping. ” (Regan, 1995, 112) The Olmstead case effectively ruled wiretapping of telephone conversations constitutional and what followed was a Congressional debate. (Regan, 1995, 112) The result was the Communications Act 1934.

By virtue of Section 605 of the 1937 Act evidence obtained by wiretapping telephones and messages without the sender’s authorization was not admissible. (Communications Act 1934, Section 605) Subsequent policy considerations gave way to the Wiretap Acts and the Foreign Intelligence Surveillance Acts each of which attempt to balance the protection of privacy against the need to detect and prevent serious crimes and breaches of homeland security. III. Informant Spying Informant spying has become a pervasive law enforcement investigative tool in the US. Dripps, 2003, 177) In Hoffa v. United States, 385 U. S. 293 (1966), the US Supreme Court ruled that in the absence of privilege, there was no reasonable expectation of privacy between an informant and the defendant pursuant to the Fourth Amendment. (Hoffa v. United States, 385 U. S. 293 (1966)) The courts have developed an approach which excludes informants from the reach of the Fourth Amendment and will typically entertain due process claims by reference to whether or not the measures taken by the informant shocks the conscience. (Dripps, 2003, 177)

A. Use of Wired Informants As Spies The issue of evidence obtained by informant wiring was specifically considered by the US Supreme Court in On Lee v United States, 343 US 747 (1952). In this case the defendant argued against the admission into evidence of a conversation intercepted by virtue of a hidden microphone on the person of On Lee’s friend and former employee at On Lee’s laundry. The US Supreme Court ruled that the microphone planted by law enforcement did not violate the Fourth Amendment rights of On Lee since he had voluntarily permitted the informant on the premises.

Moreover, the court ruled that since there had been no physical intrusion on the part of law enforcement there had been no grounds to invoke the Fourth Amendment. (On Lee v United States, 343 US 747 (1952)) The law with respect to wired informants remains essentially unchanged. (Dripps, 2005) Provided the exercise does not shock the conscience, does not involve physical intrusion, there is consent to communicating with the informant, and there is no coercion the courts will typically admit the evidence obtained by the wired informant into evidence.

B. Incriminating statements produced through wiretapping The use of incriminating statements obtained by virtue of wiretapping raises issues about the right against self-incrimination pursuant to the Fifth Amendment of the US Constitution. (Johnson, 2001, 71) As Johnson (2001) argues however, the Fifth Amendment originated as a means to eliminate the incidents of torture associated with forced and coerced statements. The idea was to ensure that all confessions or admissions of guilt were obtained freely and voluntarily and thereby reliable. Johnson, 2001, 71) To this end the courts have looked upon incriminating statements obtained by wiretaps in this light. The question is largely whether or not the defendant freely and voluntarily made the statement. (On Lee v United States, 343 US 747 (1952)) In each case the court will first determine whether or not the defendant’s privacy was invaded within the meaning of the Fourth Amendment. (Dripps, 2005) C. Are Wiretapping Powers Abused?

The powers permitting wiretapping are grounded in the search and seizure regime of the US Constitution as contained in both the Fourth and Fifth Amendments. As a result the parameters in which law enforcement are permitted to conduct wiretapping are defined around the protection of these rights. The Federal exclusionary rule which safeguards against the incidents of abuse can be said to constrain the exercise of police powers. By virtue of the exclusionary rule, evidence obtained illegally will not be admitted into evidence if its prejudicial effect outweighs its probative value. Blasberg, 2002, 721) The police powers have broadened over the years so much so that abuse is entirely unnecessary. As previously noted, the vast majority of applications for warrants to conduct wiretapping are approved by US courts. Similarly, warrantless wiretapping can be admitted into evidence in cases of emergency. Such cases arise in instances where search and seizure is necessary for the protection of life, liberty or serious injury. (Dripps, 2005) IV. Current Cases on Wiretapping

A. Threat to National Security and the Interception of International Communications from US Soil In August of last year the United States Foreign Intelligence Surveillance Court of Review, ruled in Re: Directives Pursuant To Section 105B of the Foreign Intelligence Surveillance Act, the review court ruled that the 2007 amendment to the Foreign Intelligence Surveillance Act permits the President to authorise warrantless wire taps for intelligence purposes connected to homeland security. Re: Directives Pursuant To Section 105B of the Foreign Intelligence Surveillance Act, 2008) In essence the ruling mandates that the Fourth Amendment does not apply to the collection of foreign intelligence that involves US residents and thereby does not require a warrant.

Under authorisation of the PATRIOT ACT and following the September 11 terrorist attacks the US President authorized the US National Security Agency to conduct a Terrorist Surveillance Program. The Program involved the warrantless interception of telephone and email communications between parties where one was located outside the US. ACLU et al v NSA, Nos 06-2095/2140 6th Cir. US Court of Appeal, 2008) At the first hearing in 2006 a Federal District court ruled that the warrantless wiretapping conducted under the Program violated both the right to free speech under the First Amendment and protection of privacy under the Fourth Amendment. The National Security Agency appealed to the US Court of Appeal, Sixth circuit and the appellate court ruled that the plaintiffs did not have standing since the action taken by the National Security Agency did not impact them.

As a result the matter was dismissed on a purely technical ground. (ACLU et al v NSA, Nos 06-2095/2140 6th Cir. US Court of Appeal, 2008) In essence warrantless wiretapping will be permitted for the benefit of national security, which has become far more important to public policy makers and protectors following the September 11 terrorists attacks. National security trumps concerns about violations of the protection of privacy.

More over the intelligence court ruled that unless there was compelling evidence to the contrary, the presumption is always that the government acted properly in authorizing warrantless wiretapping. (Re: Directives Pursuant To Section 105B of the Foreign Intelligence Surveillance Act, 2008) Even so many academics argue that warrantless wiretapping comes at too great a price for civil liberties. (Khan, 2006, 61-80) Khan, (2006) argues that warrantless wiretapping is not only unnecessary, it is entirely unconstitutional.

B. The Right to Individual Privacy The courts have been slow responding to the expansion of restrictions on the Fourth Amendment right to privacy in the fact of new and innovative technology. The general trend is to weigh whether or not the individual has a pre-existing reasonable expectation of privacy in the circumstances in question. Individual privacy within the scope and range of the Fourth Amendment and in the dynamics of modern technology was tested by the Washington D. C. Appellate Court in United States v. Zeigler 456 F. 3d 1138 (9th Cir. 006) In the United States v. Zeigler , Zeigler was employed by a private organization which introduced an audit system by virtue of a firewall which essentially monitored websites visited by its employees, sending an immediate alert when a suspicious website was visited. Zeigler was subsequently caught visited a child pornography website and as a result the information was handed over to the FBI who commenced an investigation. Zeigler was arrested and charged with criminal offences pertaining to his access to child pornographic websites.

At his trial he filed motions to suppress the evidence on the basis that the evidence was obtained in violation of the Fourth Amendment. (United States v. Zeigler 456 F. 3d 1138 (9th Cir. 2006)) Essentially, the Appellate court ruled that the mere fact that the employer conducted a routine monitoring program defeated any claim that there was a reasonable expectation of privacy. (United States v. Zeigler 456 F. 3d 1138 (9th Cir. 2006)) Similarly, in Nelson v. Salem State College 446 Mass. 25 (2006) the Supreme Judicial Court of Massachusetts an employee who had been filmed by surveillance cameras changing her clothing in a cubicle at work had no reasonable expectation of privacy. (Nelson v. Salem State College 446 Mass. 525 (2006))

C. Warrantless Searches US courts rely on the “exigent circumstances” concept in permitting warrantless searches. (Cottone, 2007) Searches may be conducted in instances where time is of the essence. (Cottone, 2007) Exigent circumstances exist where evidence is at risk of being destroyed or there is a continuing danger to life, liberty or property. Cottone, 2007) In other circumstances a warrantless search can be authorized by consent. If it is not clear by virtue of law or judicial precedent, at the time of the warrantless search, that law enforcement officers acted unconstitutionally, they will be granted qualified immunity. (Pearson v Callahan, US (2009)) In Pearson v Callahan, the police sent a confidential informant into the defendant’s house where he was admitted and subsequently purchased a controlled substance. The police then entered the defendant’s home and conducted a warrantless search.

The US Supreme Court ruled that the police had entered the defendant’s residence on the basis of “consent once removed” which at the time was well accepted by the lower courts. In other words, lower courts had held that once the informant had been granted permission to enter the home, that consent would entitle law enforcement to follow. Although the doctrine was not clearly established or accepted nationally, the police were entitled to rely on it. (Pearson v Callahan, US (2009))

V. Conclusion. Once entirely illegal, wiretapping was gradually introduced into the law of the US within the boundaries of the Bill of Rights, particularly, the Fourth and Fifth Amendments to the US Constitution. For instance, telephone conversations were off limits initially. But by the 1920s remote wiretapping of telephone conversations could in appropriate cases be authorized by the color of law. With the advances in modern technologies, wiretapping was expanded to include emails and other forms of electronic communications. To this end, email, cellular and cordless telephones can not be caught by the exceptions to the general rule against wiretapping.

These exceptions have also been expanded in response to organized crimes and most recently the September 11 terrorist attacks. The US Supreme Court as the guardians of the US Constitution and the US Congress had to consider balancing the Bill of Rights against the need to safeguard Americans against the security risks associated with international and domestic terrorism. Congress plays it part by introducing laws that expand the investigative powers of law enforcement and the US Supreme Court participates by interpreting and applying these laws so as not to offend the US Constitution.


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