Wiretapping

• Author: Herman Schwartz
• Pages: 2912-2913

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Telephone tapping is probably the best known form of electronic surveillance. The Supreme Court originally

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ruled in OLMSTEAD V. UNITED STATES (1928) that neither the Fifth nor the FOURTH AMENDMENT could be used to control wiretapping. In KATZ V. UNITED STATES (1967), however, the Supreme Court declared that what people reasonably expect to keep private is entitled to constitutional protection under the Fourth Amendment.

Both before and after the Katz decision, wiretapping was regulated by statute. Between 1934 and 1968, Section 605 of the COMMUNICATIONS ACT prohibited virtually all wiretapping except for NATIONAL SECURITY purposes. The Justice Department construed the statute so narrowly, however, that it had little effect: federal and state officials tapped extensively, as did private parties, and there were few prosecutions.

In 1968, Congress enacted Title III of the OMNIBUS CRIME CONTROL AND SAFE STREETS ACT, which prohibits telephone tapping except by federal and state officials who obtain prior judicial approval. Before issuing such approval, the court must have PROBABLE CAUSE to believe that EVIDENCE of a specific crime listed in the statute, and relating to a particular person, will be found by tapping a specific phone. Interceptions must be minimized, and notice of the interception must ultimately be given to the target of the surveillance.

Critics claim that the minimization and judicial supervision requirements are ineffective, that wiretapping is inherently indiscriminate, and that it is of little value for major crimes. Proponents assert that the technique is useful, and that the procedural protections are effective.

Wiretapping within the United States to obtain foreign national security intelligence is governed by the Foreign Intelligence Surveillance Act (1978), which creates a...