Wiretapping

• Author: Jeffrey Lehman, Shirelle Phelps

Page 397

A form of electronic eavesdropping accomplished by seizing or overhearing communications by means of a concealed recording or listening device connected to the transmission line.

Wiretapping is a particular form of ELECTRONIC SURVEILLANCE that monitors telephonic and telegraphic communication. The introduction of such surveillance raised fundamental issues concerning personal privacy. Since the late 1960s, law enforcement officials have been required to obtain a SEARCH WARRANT before placing a wiretap on a criminal suspect. Under the Federal Communications Act of 1934 (47 U.S.C.A. 151 et seq.), private citizens are prohibited from intercepting any communication and divulging its contents.

Police departments began tapping phone lines in the 1890s. The placing of a wiretap is relatively easy. A suspect's telephone line is identified at the phone company's switching station and a line, or "tap," is run off the line to a listening device. The telephone conversations may also be recorded.

The U.S. Supreme Court, in the 1928 case of OLMSTEAD V. UNITED STATES, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944, held that the tapping of a telephone line did not violate the Fourth Amendment's prohibition against unlawful SEARCHES AND SEIZURES, so long as the police had not trespassed on the property of the person whose line was tapped. Justice LOUIS D. BRANDEIS argued in a dissenting opinion that the Court had employed an outdated mechanical and spatial approach to the FOURTH AMENDMENT and failed to consider the interests in privacy that the amendment was designed to protect.

For almost 40 years the Supreme Court maintained that wiretapping was permissible in the absence of a TRESPASS. When police did trespass in federal investigations, the evidence was excluded in federal court. The Supreme Court reversed course in 1967, with its decision in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576. The Court abandoned the Olmstead approach of territorial trespass and adopted one based on the reasonable expectation of privacy of the victim of the wiretapping. Where an individual has an expectation of privacy, the government is required to obtain a warrant for wiretapping.

Congress responded by enacting provisions in the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.A. § 2510 et seq.) that established procedures for wiretapping. All wiretaps were banned except those approved...