Electronic Surveillance

• Author: Jeffrey Lehman, Shirelle Phelps

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Observing or listening to persons, places, or activities?usually in a secretive or unobtrusive manner?with the aid of electronic devices such as cameras, microphones, tape recorders, or wire taps. The objective of electronic surveillance when used in law enforcement is to gather evidence of a crime or to accumulate intelligence about suspected criminal activity. Corporations use electronic surveillance to maintain the security of their buildings and grounds or to gather information about competitors.

Cameras are used for traffic surveillance in the Manhattan neighborhood of Chelsea.

AP/WIDE WORLD PHOTOS

Electronic surveillance permeates almost every aspect of life in the United States. In the public sector, the president, Congress, judiciary, military, and law enforcement all use some form of this technology. In the private sector, business competitors, convenience stores, shopping centers, apartment buildings, parking facilities, hospitals, banks, employers, and spouses have employed various methods of electronic eavesdropping. Litigation has even arisen from covert surveillance of restrooms.

Three types of electronic surveillance are most prevalent: WIRE TAPPING, bugging, and videotaping. Wire tapping intercepts telephone calls and telegraph messages by physically penetrating the wire circuitry. Someone must actually "tap" into telephone or telegraph wires to accomplish this type of surveillance. Bugging is accomplished without the aid of telephone wires, usually by placing a small microphone or other listening device in one location to transmit conversations to a nearby receiver and recorder. Video surveillance is performed by conspicuous or hidden cameras that transmit and record visual images that may be watched simultaneously or reviewed later on tape.

Electronic eavesdropping serves several purposes: (1) enhancement of security for persons and property; (2) detection and prevention of

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criminal, wrongful, or impermissible activity; and (3) interception, protection, or appropriation of valuable, useful, scandalous, embarrassing, and discrediting information. The law attempts to strike a balance between the need for electronic surveillance and the privacy interests of those affected.

Constitutional Law

The FOURTH AMENDMENT to the U.S. Constitution protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." It further provides that "no Warrants shall issue, but upon PROBABLE CAUSE, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Electronic surveillance did not exist in 1789, when this amendment was written and was probably not contemplated by the Founding Fathers. But the colonists were familiar with unbridled methods of law enforcement. British officials conducted warrantless SEARCHES AND SEIZURES, and made arrests based on mere suspicion. Even when a search was made pursuant to a warrant, the warrant was often general in nature, vesting British officials with absolute discretion to determine the scope and duration of the search.

The Fourth Amendment was carefully drafted in response to this colonial experience. It provides two basic protections. First, it prohibits government officials, or persons acting under color of law, from performing unreasonable searches and seizures. Second, it forbids magistrates from issuing warrants that are not supported by probable cause or that fail to specify the persons, places, and things subject to search and seizure. The Supreme Court has held that searches performed without a warrant are presumptively unreasonable. When a search is presumptively unreasonable, evidence seized by the police during the search will not be admissible against the defendant at trial unless the prosecution demonstrates that the evidence seized falls within an exception to the warrant requirement such as the "good faith" exception.

The Supreme Court first considered the Fourth Amendment implications of electronic surveillance in OLMSTEAD V. UNITED STATES, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928). In Olmstead, federal agents intercepted incriminating conversations by tapping the telephone wires outside the defendant's home without a warrant or his consent. In a 5 to 4 decision, the...