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Wiretapping

From lawbrain.com

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 Justice Louis D. Brandeis argued in a dissenting opinion that the Court had employed an outdated mechanical and spatial approach to the Fourth Amendment and failed to consider the interests in privacy that the amendment was designed to protect.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 by a court. Wiretaps were legally permissible for a designated list of offenses, if a court approved. A wiretap may last a maximum of 30 days and notice must be provided to the subject of the search within 90 days of any application or a successful interception. In 1986, Congress extended wiretapping protection to electronic mail in the Electronic Communications Privacy Act (ECPA), 8 U.S.C.A. § 2701 et seq. The law, also known as the Wiretap Act, makes it illegal to tap into private e-mail.

With the emergence of the Internet in the 1990s as a popular communications vehicle, law enforcement agencies concluded that it was necessary to conduct surveillance of E-mail, chat rooms, and Web pages in order to monitor illegal activities, such as the distribution of child pornography and terrorist activities. In 2000, the federal bureau of investigation (FBI) announced the launch of an Internet diagnostic tool called "Carnivore." Carnivore can monitor E-mail writers on-line or record the contents of messages. It performs these tasks by capturing "packets" of information that may be lawfully intercepted. Groups that safeguard civil liberties expressed alarm at the loss of privacy posed by such potentially invasive technology.

Following the September 11th 2001 terrorist attacks, Congress broadened wiretapping rules for monitoring suspected terrorists and perpetrators of computer fraud and abuse through the usa patriot act, Pub. L. No. 107-56, 115 Stat. 272 (2001). For example, the act expanded the use of traditional pen registers (a device to capture outgoing phone numbers from a specific line) and "trap and trace" devices (that capture the telephone numbers of incoming callers) to include both telephone and Internet communications as long as they exclude message content. These devices can be used without having to show that the telephone being monitored was used in communications with someone involved in terrorism or intelligence activities that may violate criminal laws.

In addition, the act broadened the provisions of the 1986 Wiretap Act that involve roving wiretaps. Roving wiretaps authorize law enforcement agents to monitor any telephone a suspect might use. Again, agents do not have to prove that the suspect is actually using the line. This means that if a suspect enters the private home of another person, the homeowner's telephone line can be tapped. The act does allow persons to file civil lawsuits if the federal government discloses information gained through surveillance and wiretapping powers.

Further Readings

Adams, James A., and Daniel D. Blinka. 2003. Electronic Surveillance: Commentaries and Statutes. Notre Dame, Ind.: National Institute for Trial Advocacy.

American Bar Association. 2001. Standards for Criminal Justice. Electronic Surveillance. Section A, Electronic Surveillance of Private Communications. 3d ed. Washington, D.C.: American Bar Association.

"FBI Says Carnivore Will Not Devour Privacy." July 21, 2001. CNN.com: Technology. Available online at <http://www.cnn.com/2000/TECH/computing/07/21/fbi.carnivore> (accessed August 28, 2003).

O'Harrow, Robert, Jr. 2001. "FBI's 'Carnivore' Might Target Wireless Text." Washington Post (August 25).

Stevens, Gina Marie. 2002. Privacy: Wiretapping and Electronic Eavesdropping. Huntington, N.Y.: Nova Science.

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