Is Wire Tapping Justified?

• Author: Patrick Murphy Malin
• Published date: 01 July 1955
• DOI: 10.1177/000271625530000106
• Date: 01 July 1955
• Subject Matter: Articles

29

Is

Wire

Tapping

Justified?

By

PATRICK

MURPHY

MALIN

THE

Fourth

Amendment

to

the

fed-

eral

Constitution

reads:

&dquo;The

right

of

the

people

to

be

secure

in

their

per-

sons,

houses,

papers,

and

effects,

against

unreasonable

searches

and

seizures,

shall

not

be

violated,

and

no

Warrants

shall

issue,

but

upon

probable

cause,

sup-

ported

by

Oath

or

affirmation,

and

par-

ticularly

describing

the

place

to

be

searched,

and

the

persons

or

things

to

be

seized.&dquo;

In

1928,

in

a

dissenting

opinion

from

within

the

minority

of

four

in

the

Olm-

stead

prohibition

wire-tapping

case,

the

late

Justice

Brandeis

said:

&dquo;The

makers

of

our

Constitution ...

conferred,

as

against

the

Government,

the

right

to

be

let

alone-the

most

comprehensive

of

the

rights

of

man

and

the

right

most

valued

by

civilized

men.&dquo;

1

He

had

not

forgotten

what

often

seem

to

be

the

most

forgotten

amendments,

the

Ninth

and

Tenth,

which

not

only

conclude

the

Bill

of

Rights

but

also

succinctly

de-

clare

the

American

faith

in

a

free

so-

ciety

with

a

limited

government:

&dquo;The

enumeration

in

the

Constitution,

of

cer-

tain

rights,

shall

not

be

construed

to

deny

or

disparage

others

retained

by

the

people&dquo;

and

&dquo;The

powers

not

dele-

gated

to

the

United

States

by

the

Con-

stitution,

nor

prohibited

by

it

to

the

States,

are

reserved

to

the

States

re-

spectively,

or

to

the

people.&dquo;

But

in

1954,

Attorney

General

Brown-

ell

posed

this

question:

&dquo;How

can

we

possibly

preserve

the

safety

and

liberty

of

everyone

in

this

Nation

unless

we

pull

Federal

prosecuting

attorneys

out

of

their

strait-jackets

and

permit

them

to

use

intercepted

evidence

in

the

trial

of

security

cases?&dquo;

2

In

dealing

with

this

problem,

I

shall

first

refer

briefly

to

the

extent

and

me-

chanics

and

legal

status

of

wire

tapping.

Then

I

shall

outline

the

arguments

for

and

against

legalized

police

wire

tap-

ping,

and

my

conclusions.

EXTENT

AND

MECHANICS

OF

WIRE

TAPPING

No one

knows

how

much

wire

tapping

there

is-official

and

unofficial,

legal

and

illegal.

But

occasional

formal

and

in-

formal

revelations-of

which

the

most

recent

widely

publicized

one

is

that

of

the

privately

organized

New

York

City

Anti-Crime

Committee-indicate

that

each

day

there

are

many

thousands

of

wire

taps

in

operation

throughout

the

country,

most

of

all

in

the

larger

cities.

As

for

mechanics,

it

is

apparently

still

true

that

there

is

only

one

way

to

tap

a

telephone

secretly,

and

that

is

by

having

an

expert

cut

into

the

wire

it-

self

some

distance

from

the

instrument.

But

there

are

already

electronic

devices

which,

despite

difficulty

of

concealment

and

other

imperfections,

considerably

facilitate

the

practice.

And

the

phone

tap

need

not

now

have

a

listener

taking

notes,

but

may

be

connected

to

an

automatic

wire

recorder.

A

recording

can

be

edited

by

deletion,

rearrange-

ment,

or

even

addition

of

words

or

even

syllables;

and

thus

may

increase

the

problem

of

false

evidence

to

terrifying

proportions.

But

I

am

dealing

here,

1

Olmstead

v.

United

States,

277

U.

S.

438,

478 (1928).

2

"Statement

by

Honorable

Herbert

Brown-

ell,

Jr.... Prepared

for

Testimony

before

a

Subcommittee

of

the

[Senate]

Judiciary

Com-

mittee,

April

20,

1954,"

p.

3.