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The History and Legislation of Wiretapping in the United Sta

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Rich Munro

on 28 October 2013

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Transcript of The History and Legislation of Wiretapping in the United Sta

The History and Legislation of Wiretapping in the United States
The "King of the Puget Sound Smugglers" v. United States
*1928 Roy Olmstead, a bootlegger during the Prohibition who ran his multi-million $ business in Seattle, Washington-was wiretapped (without warrant) and eventually convicted based on the evidence that was collected.

Olmstead appealed the decision to the Supreme Court, but in a 5-4 decision, they ruled against him stating that the rights afforded to him under the 4th Amendment did not apply to private conversations (neither search nor seizure, in their decision).

*The ruling and the decision made permitted the tapping of telephones and wires connecting those phones-as long as there was no trespassing or seizure of materials, and this created an outrage on behalf of the public and press, whivh allowed those who were looking to abolish this type of government "interference" to focus their attention to creating chhanges through the legislative process.

This led to Congress passing the Federal Communications Act in 1934, which made it illegal to "intercept and reveal wire communications"--controversy continued with cases Nardone v. United States and Weiss v. United States, which made illegal wiretaps inadmissible in court and to guarantee 4th Amendement rights regardless of where the person(s) are.









The Electronic Communications Privacy Act (1986)
In 1986, Congress extended wiretapping protection to electronic mail in the Electronic Communications Privacy Act (ECPA).

The law, also known as the Wiretap Act, makes it illegal to tap into private E-Mail. However, it is important to note that if electronic communications are saved on a remote server, it is only protected under that 4th Amendment for 180 days.

The ECPA allows law enforcement to use "pen register", trap and trace devices and roving wiretaps in the case that the suspect is attempting to avoid detection and surveillance (tradecraft).

Title III responded to the Katz case, and reversed its decision on Olmstead v. United States in 1928. Title III allowed police agencies who obtain court orders to tap phone lines for up to 30 days.

On October 25th, 1978, Congress passed the FISA Act, which deemed that warrants were required for all surveillance, even when individuals and foreign persons were being monitored. Requests for warrants has to be submitted to a special FISA court, whose judges were sworn to secrecy (Riebling, 1994, p.337).

FISA outlined the rules and regulations and procedures for spying on individuals and foreign “powers” in an attempt to curb wiretapping abuses that were being justified for the sake of “national security.”


FISA was passed in part as a response to the "Church Committee" investigation on the NSA in 1975, and followed the Supreme Court's 1973 decision requiring warrants for domestic surveillance.

“It will assure FBI field agents and others involved in intelligence collection that their acts are authorized by statute and, if a U.S. person’s communications are concerned, by a court order”- President Jimmy Carter (Gauthier, 2013).





















Title III and the Foreign Intelligence Surveillance Act
(FISA, 1978)
Ever since the invention of the telephone and its evolution into mainstream use during the 1890’s, the use of wiretapping, or “the interception of a telephone conversation” (Quinn, 2013, p. 276) has been a controversial and divisive issue in the United States.

The issue of rights and freedoms, privacy of information, safety and security, and “when is it permissible?” makes the entire scope of government surveillance, and its covert nature, a great topic for discussion-the epitome of the individual vs. “safety of others” debate.

Quinn cites an example of how the State of New York made wiretapping a felony in 1892, however continued to invade the privacy of citizens, most notably professionals and the clients, priests and those in church, and hotel guests (Quinn, p. 276)—this is a clear violation of the United States’ Constitution and the 4th Amendment.

The practice of wiretapping has taken a new shape as technology has evolved. Telephone lines are no longer the only communication medium vulnerable to infiltration. E-mail, text messaging, and almost any form of online correspondence is susceptible to monitoring by a third party.

There have been a number of landmark court cases that have shifted the way government respects or rather, doesn’t respect a citizen’s privacy.

More modern definition..."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" (The Legal Dictionary, 2013)


Early Wiretapping and the Prohibition Era
The 4th Amendment (United States Constitution, 1791) guarantees....

"the right of the people to be secure in their persons, houses, papers, and effects; against unreasonable searches and seizures, shall not be violates and 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" (Quinn, 2013, p. 275)

This is an important piece of legislation as it established an individual's right to privacy and security, and required probable cause in order for agencies and police to obtain warrants for search and seizures.


"The 4th Amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the sense of hearing and that only. There was no entry of the houses or offices of the defendants."-Chief Justice Taft (Gauthier, 2013)
"Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all conversations between them upon any subject...may be overheard. Morever, the tapping of one man's line involves the tapping of the telphone of every other perosn who he may call, or who may call him"-Justice Louis Brandis (in Dissent)(Quinn, 2013, p.276)
The Federal Communications Act (1934), J. Edgar Hoover, and the FBI
Katz v. United States (1967) and the Federal Wiretap Act (1968)
Charles Katz was apprehended and convicted for illegal gambling after the FBI placed a bug outside a public phone boot and recorded his conversations.

The state argued that it was not in violation because the bug did intrude Katz's space; however, the Supreme Court ruled in favour of Katz stating that the "4th Amendment protects people, not places"-Justice Potter Steward (Quinn, 2013, p. 278)
CALEA (Communications Assistance for Law Enforcement Act, 1994)
"to make clear a telecommunications carrier's duty to cooperate in the interception of communications for the Law Enforcement purposes, and for other purposes"-CALEA, 1994

WIth the advancement of digital phone, cable and internet networks, the government realized that this interferred with their ability to wiretap effectively, and CALEA "ensured that the court-ordered wire-tapping would still be possible even as new digital technologies were introduced".


Also known as "Digital Telphony Act"
-required telecommunication carriers to modify their networking equipment so that law enforcement agencies could listen in on and trace phone calls and intercept emails (Quinn, 2013, p.282)

This effectively allows the government to monitor all telephone and Broadband internet in real time (Gauthier, 2013)








The Patriot Act (2001)

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. (Legal Dictionary, 2012)

Sneek and Peek Warrants, expansion on roving wiretaps, pen registers and access to voicemails and customer records, along with easier/laxed regulation regarding the sharing of information between agencies.


Under constant review are the provisions permitting the use of roving wiretaps, the surveillance of individuals or "lone wolves", and the seizure of confidential records without showing probable cause. The PATRIOT ACT and its provisions have been renewed by President Barack Obama is 2010 and (May) 2011.









In 1934, the Federal Communications Act was passed, which made it
illegal to incept radio and wire communications-creating a looping
hole, as it mentioned nothing about secretly recording face-to-face conversations.

“no person not being authorized by the sender shall intercept any communication and divulge and publish the existence, contents, substance, puport, effect, or meaning of such intercepted communications to any person”-Federal Communications Act, 1934

The government later granted Roy Olmstead a full presidential pardon, restored his rights and remitted him $10,300 (Gauthier, 2013).

During World War Two, and largely an extension of the Shamrock operation (from the NSA’s predecessor, the Signal Security Agency, where telecommunication companies allowed the government full censorship of information coming and leaving the United States).
J Edgar Hoover pressed to have the ban on wiretapping withdrawn, and
after continued pressure , President Roosevelt agreed to let the FBI
resume wiretapping in cases involving national security, and asked for
them to “be kept at a minimum”—this gave Hoover a great deal of power
to collect information, and it is no secret now that he engaged in political surveillance of those in power, political dissidents and activists, and wealthy individuals. The information collected on
many of these figures had great political value, and was sometimes
used to threaten/coerce individuals. (Quinn, 2013, p. 278)

Legislation in the Modern Era, Post 9/11
Terrorist Surveillance Program-This program was a “top secret executive order authorizing the NSA to monitor phone and internet communications without a warrant”; this allowed the NSA to wiretap individuals and groups believed to be outside of the United States, even if it involved those in the United States.

“Less than a month after 9/11, then President George W. Bush’s executive order allowed the NSA to conduct warrantless surveillance on certain telephone calls, among other powers” (Gauthier, 2013).

In 2005, the program was revealed and in 2007, the program was not renewed due to immense public pressure and criticism of the government’s intrusion of privacy. President Bush enacted the “Protect America Act of 2007”, but it expired despite multiple attempts to get it pushed through to law.

In June 2008, the FISA Amendments Act was passed, which allowed the NSA to conduct warrantless wiretapping of international communications legally. Also, telecommunication companies were granted immunity for assisting the NSA. (Circa, 2013). In late 2012, Obama signed a 5-year extension of the FISA Amendments Act.

Gauthier, A. (2013). The History of Wiretapping from prohibition to the patriot act. Retrieved from http://ivn.us/2013/06/21/the-history-of-wiretapping-from-prohibition-to-the-patriot-act/

Circa (2013). A short history of warrantless wiretapping in the US. Retrieved from http://cir.ca/news/history-of-nsa-wiretapping

Quinn, M. (2013). Ethics for the information age, 5th edition. Pearson Education, Ltd.

The Free Dictionary. (2013). Wiretapping. Retrieved from http://legal-dictionary.thefreedictionary.com/Wiretapping.

Riebling, M. (1994). Wedge: How the secret war between the FBI and CIA has endangered national security. Osprey Productions, Inc. New York, New York

Youtube. (2013). “Wiretapping Saves” [Video]. Retrieved from
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