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Wiretapping and electronic eavesdropping are two types of electronic surveillance that play vital roles in criminal investigations. Wiretapping involves the use of covert means to intercept, monitor, and record telephone conversations of individuals. Electronic eavesdropping may involve the placement of a ‘‘bug’’ inside private premises to secretly record conversations, or the use of a ‘‘wired’’ government informant to record conversations that occur within the informant’s earshot. Both wiretapping and electronic eavesdropping enable the government to monitor and record conversations and activities without revealing the presence of government listening devices.
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Law enforcement officials have utilized these surreptitious techniques for various investigative purposes, particularly in the contexts of organized crime and counterespionage. Electronic surveillance can reveal, for example, the scope of a criminal conspiracy or organization, the nature of its activities, and the identities of its participants. Electronic surveillance also allows investigators to covertly obtain evidence of a particular conversation, series of conversations, or meetings, for use in prosecuting an identified suspect in a known crime.
The Impact of Electronic Surveillance on Personal Privacy
While electronic surveillance undoubtedly enhances the government’s ability to investigate crime, inherent in the nature of these techniques is the potential for grave invasions of individual privacy. Indeed, as one scholar of the topic has noted, ‘‘electronic surveillance has long posed a classic confrontation between privacy interests and the need for effective law enforcement’’ (Goldsmith). Wiretapping obviously invades the privacy interests of people who speak on the telephone. Eavesdropping allows the government to overhear and record all conversations occurring within the range of the bug or wired informant. Further, because electronic bugs and informants can gain access to private areas like homes and offices, eavesdropping can reveal information that is extremely private in nature. Consequently, clandestine electronic surveillance has the potential to eliminate personal privacy if left to the unfettered discretion of police officials. Because of this threat, wiretapping and eavesdropping have been subject to numerous constitutional challenges under the Fourth Amendment, which guarantees all persons the right to be free from unreasonable governmental searches and seizures.
Early Restrictions on Electronic Surveillance
The Supreme Court first considered the constitutionality of wiretapping in the 1928 case of Olmstead v. United States, 277 U.S. 438 (1928). The Court ruled that governmental wiretapping of telephone conversations fell outside the protection of the Fourth Amendment. The Court based its conclusion upon a narrow, textual reading of the amendment. First, the Court found that words spoken into a telephone were not tangible things and thus could not be subjected to a search or seizure. Second, it reasoned that because wiretapping could be accomplished without a trespass, there was no physical invasion of property to justify invoking the Fourth Amendment. Finally, the Court assumed that one who uses the telephone ‘‘intends to project his voice to those quite outside.’’
The ruling in Olmstead was controversial. The Court split five to four, and there were strong reactions from Congress and the public opposing the ruling. Although Olmstead permitted police officials to employ wiretapping without constitutional restraints, Olmstead did not address the constitutionality of informant spying. The Court would tackle that issue in the 1952 case of On Lee v. United States, 343 U.S. 747 (1952). In On Lee, the defendant challenged the constitutionality of the government’s use of a wired informant to record his statements. Chin Poy, a friend and former employee of On Lee, went to On Lee’s laundry shop secretly wired for sound with a small microphone inside his coat pocket. A federal officer stationed outside the laundry intercepted the conversation between On Lee and Chin Poy. Several days later, the same officer monitored another conversation between On Lee and Chin Poy. During both conversations, On Lee made incriminating statements.
The Court ruled that the government’s conduct did not violate On Lee’s Fourth Amendment rights. No constitutional trespass had occurred because On Lee consented to Chin Poy’s entry into the laundry shop. The Court also rejected On Lee’s companion claim that the officer committed a trespass because the electronic equipment allowed him to overhear secretly what transpired inside the shop. The Court called this argument ‘‘frivolous.’’ The Court explained that only a ‘‘physical entry,’’ such as one associated with force, submission to legal coercion, or without any sign of consent, would trigger constitutional protection against clandestine surveillance. Finally, the Court dismissed the contention that it should treat informant surveillance on an equal footing with police wiretapping. To the Court, the use of a radio wire in these circumstances suggested only ‘‘the most attenuated analogy to wiretapping.’’
By the 1960s, the Court, which was then led by Chief Justice Earl Warren, had reexamined and overturned many constitutional rulings affecting the rights of criminal suspects. But the Warren Court’s willingness to limit the search and seizure powers of the police did not extend to informant spying. In a trio of cases in the mid1960s, the Court refused to impose constitutional restrictions on the government’s power to employ informants to monitor and record private conversations. In Lopez v. United States, 373 U.S. 427 (1963), the defendant appealed his conviction for the attempted bribery of an Internal Revenue agent who had visited Lopez’s business to inquire about the payment of excise taxes. During this visit, Lopez offered the agent a bribe. Several days later, the agent returned to the office secretly equipped with a pocket tape recorder. Pretending to go along with the bribery scheme, the agent recorded his conversation with Lopez, who again made incriminating statements. At trial, the agent’s testimony about the bribery conversation and the tape recording of the second conversation were both admitted into evidence.
The Court ruled that Lopez’s Fourth Amendment rights were not violated. Critical to the Court’s conclusion was the fact that Lopez had consented to the agent’s presence. The only evidence seized by the agent was evidence that Lopez had voluntarily given to the agent. While the Lopez majority upheld Lopez’s conviction, four dissenting Justices not only argued that Lopez’s Fourth Amendment rights had been violated, but insisted that both Olmstead and On Lee were wrongly decided. Notwithstanding the views of the dissenters in Lopez, the Court would issue two additional decisions in 1966 that reaffirmed the government’s unfettered discretion to plant informants within private places.
In Lewis v. United States, 385 U.S. 206 (1966), an undercover police officer misrepresented his identity during a telephone conversation and obtained an invitation to visit Lewis’s home to purchase narcotics. The officer visited Lewis’s home twice, both times purchasing narcotics. Unlike the government agent in Lopez, the officer in Lewis was not wired for sound. At trial, both the narcotics and the officer’s testimony regarding his conversations with Lewis were admitted into evidence. Upholding Lewis’s conviction, the Court implied that Lewis had assumed the risk that his statements would be overheard and used against him by inviting the undercover agent into his home to conduct illegal business. While recognizing that a person’s home is normally accorded heightened Fourth Amendment protections, the Court ruled that those protections are waived when, as here, the individual uses his home as a commercial center and invites outsiders in to conduct illegal business.
Hoffa v. United States, 385 U.S. 293 (1966), also rested upon an assumption of risk rationale. A government informant, who was also a member of union leader Jimmy Hoffa’s entourage, reported to the F.B.I. incriminating conversations made by Hoffa in his hotel suite and other places. Hoffa argued that the informant’s actions infringed his Fourth Amendment rights. The Court upheld Hoffa’s conviction, ruling that Hoffa had effectively forfeited his right to rely on the security of his hotel suite by allowing the informant to enter it and to hear and participate in the incriminating conversations. The Court explained that no interest protected by the Fourth Amendment was infringed in Hoffa. All that could be said about Hoffa’s constitutional interest was that ‘‘he was relying upon his misplaced confidence’’ that the informant would not reveal his wrongdoing. That interest, however, was not protected by the Fourth Amendment.
The Contemporary Legal Status of Wiretapping and Eavesdropping
Although the Warren Court’s rulings on informants were distinctly pro-government in tone and result, one year after Lewis and Hoffa were decided the Court appeared to adopt a new way of looking at the Fourth Amendment. This new approach was less deferrential to the claims of government. In two cases decided in 1967, the Court rejected arguments that law enforcement officials are free to conduct electronic surveillance without satisfying the procedural safeguards required by the Fourth Amendment.
A New Judicial Framework
In 1967 two rulings by the Court intimated a new doctrinal approach for electronic surveillance cases. The first case, Berger v. New York, 388 U.S. 41 (1967), addressed a constitutional challenge to a New York statute allowing court-authorized electronic surveillance. The defendants were convicted of conspiracy to corrupt the New York State Liquor Authority. The incriminating evidence against some of the defendants was obtained pursuant to several court-ordered bugs authorized by the New York statute. A majority of the Berger Court concluded that the New York statute was facially unconstitutional for essentially two reasons: the statute did not require that a judge find probable cause before issuing an electronic surveillance warrant, and the statue failed to limit the nature, scope, or duration of the electronic surveillance. The second decision—Katz v. United States, 389 U.S. 347 (1967)—signaled that the old ways of analyzing search and seizure issues were no longer acceptable. In Katz, the defendant argued that F.B.I. agents violated his Fourth Amendment rights by attaching an electronic listening and recording device to the outside of a public telephone to monitor his conversations. The Court agreed and reversed Katz’s conviction.
The ruling in Katz, however, was not based on traditional search and seizure norms that had controlled earlier electronic surveillance cases. The Court began by asserting that the Fourth Amendment did not grant a ‘‘general right of privacy.’’ The amendment ‘‘protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all.’’ The Court explained that ‘‘the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.’’ While Katz chose to make his illegal calls in public, the Court emphasized that public telephones play a vital role in private communications. Consequently, Katz retained the right to assume the words he spoke while on the telephone would not be broadcast to the world.
Katz also extinguished the lingering notion that a physical trespass was necessary to trigger constitutional review of governmental searches and seizures. While recognizing that the rationale of Olmstead had not been formally overruled, the Court declared that the reach of the amendment ‘‘cannot turn upon the presence or absence of a physical intrusion into any given enclosure.’’ Employing this new framework, the Court concluded that wiretapping without judicial authorization violated the Fourth Amendment.
While Katz initiated a new way of thinking about electronic surveillance, a subsequent case demonstrated that this new perspective would not automatically render the previous eavesdropping cases obsolete. In 1971 the Court decided United States v. White, 401 U.S. 745 (1971), whose facts closely mirrored those of On Lee. At issue in White was whether the testimony of federal officers about conversations between the defendant and a government informant, which were overheard by the officers monitoring the frequency of a radio transmitter carried by the informant, implicated the Fourth Amendment. The Court ruled this form of surreptitious electronic eavesdropping was still permissible.
The White Court concluded that nothing in Katz undermined the reasoning of On Lee, Lopez, Lewis, or Hoffa. It reasoned that if an individual assumes the risk that a secret informant, acting without electronic equipment, might later reveal the contents of a conversation, the risk is the same when the informant simultaneously records and transmits the conversation to a third party. In either situation, ‘‘the risk is his,’’ and the Fourth Amendment offers no protection against police efforts to obtain information in this manner.
Title III: The Statutory Response
Prior to the 1960s, many persons contended that if Congress or the Court sanctioned electronic wiretapping or bugging by the police, society would rapidly move toward an oppressive police state. Opponents of electronic surveillance argued that the Fourth Amendment compelled an absolute bar on clandestine surveillance. Justice William Douglas contended that electronic surveillance devices ‘‘lay down a dragnet which indiscriminately sweeps in all conversations within its scope, without regard to the nature of the conversations, or the participants. A warrant authorizing such devices is no different from the general warrant the Fourth Amendment was intended to prohibit.’’ Notwithstanding Justice Douglas’s misgivings, the rulings in Berger and Katz indicated that the Court would accept some form of regulated electronic surveillance.
Although Berger and Katz had no impact on electronic eavesdropping practices, these rulings did mandate change in the way law enforcement officers employed wiretapping surveillance.
These cases also provided a constitutional ‘‘blueprint’’ that was utilized by Congress, which was in the process of crafting legislation designed to regulate electronic surveillance techniques. Within several months of the issuance of Katz, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 was enacted into law. Title III is a comprehensive law that authorizes wiretapping and electronic eavesdropping so long as enumerated constitutional and statutory limitations are followed. Title III also sanctioned informant spying provided the informant is a party to the communication or one of the parties to the communication has given consent to the spying. Title III does not cover national security electronic surveillance, which is addressed in the Foreign Intelligence Surveillance Act of 1978.
Title III prohibits all electronic surveillance except as specifically provided by the statute and punishes violators with criminal and civil penalties. Another remedy available under the statute is a broad exclusionary rule that prohibits the disclosure of unlawfully obtained evidence in governmental judicial, quasi-judicial, and administrative proceedings. As Professor Michael Goldsmith has explained in his article on Title III, the statute imposes three categories of requirements that were designed to limit the use of electronic surveillance techniques: jurisdictional, documentary, and executional.
Title III permits an application for a wiretapping or electronic eavesdropping order only for crimes specifically designated by the statute. Those designated crimes are generally felonies that are either intrinsically serious or characteristic of organized crime. The application must be initially approved by a designated government official. Goldsmith has explained that this requirement ensures that a politically accountable executive branch official exercises a high level of discretion before the application even reaches a court. Finally, the application must be filed before a judge with competent jurisdiction, namely federal district and appellate judges and/or their state counterparts.
Title III mandates that electronic surveillance orders only be issued on the basis of a properly authorized application, except in emergency situations described in the statute. As Goldsmith has noted, the statute mandates several safeguards. First, an application must be made in writing and under oath. Second, the application must establish probable cause for the person, crime, conversation, communication facility, and time period. In order to curtail the potential for abuse and harassment, the application must also demonstrate that investigators have exhausted all reasonable alternative forms of investigation. Finally, the application must reveal all previous surveillance requests involving persons or facilities named in the instant application.
Assuming these requirements are satisfied, a qualified judge may properly issue an electronic surveillance order. As Goldsmith has detailed, each judicial order must satisfy specific statutory criteria: first, the order must specify the officials authorized to conduct the surveillance; second, it must identify both the place and, if known, the person or persons targeted for interception; third, it must state the particular crime to which the surveillance relates; fourth, the order must specify the period of surveillance; finally, each order must mandate prompt execution, minimal interception of irrelevant conversations, and termination of surveillance when the evidence sought is obtained or when thirty days have passed, whichever occurs first. Title III allows applications for extensions and authorizes judges to issue extension orders in compliance with all statutory requirements.
Finally, as Goldsmith has described, Title III has various ‘‘executional’’ rules. An investigator armed with a valid electronic surveillance order must also obey Title III’s executional requirements when performing the surveillance. These rules mandate that only authorized personnel conduct the surveillance. Further, as previously noted, surveillance must be conducted in a manner that minimizes the interception of irrelevant conversations. All monitored conversations should be recorded to ensure that the ‘‘most reliable evidence’’ of the conversations is presented at trial. The statute also imposes several precautionary executional requirements. The recording must be made in a manner that reduces the risk of alteration and, following the authorized period of surveillance, all tape recordings are to be sealed under judicial supervision. Title III also requires investigators to notify all persons named in the application that they were subjected to electronic surveillance. The judge, however, has discretion to decide whether other parties whose conversations were recorded should receive this notification. The practical effect of these notification provisions is to encourage victims of unlawful surveillance to file civil suits. Finally, Title III mandates that a comprehensive report on each surveillance case must be provided to the Administrative Office of the United States Courts, which in turn will present a compilation of these reports annually to Congress. This final requirement ensures that the public has an opportunity to monitor and evaluate the system.
Judicial Interpretation of Title III
The Supreme Court first considered the scope of Title III in United States v. United States District Court, 407 U.S. 297 (1972), a ruling that addressed the president’s power to authorize electronic surveillance in internal security matters without prior judicial approval. The Court ruled that Title III did not authorize the president to order warrantless electronic surveillance of American citizens. The Court emphasized that Title III should be interpreted as a broad grant of protection against electronic surveillance, subject to a few narrow exceptions that permits such surveillance.
Several days after the U.S. District Court decision, the Court considered the scope of Title III’s exclusionary rule provision. In Gelbard v. United States, 408 U.S. 41 (1972), the petitioners, grand jury witnesses who had been granted immunity from prosecution, refused to answer questions that were allegedly derived from illegal electronic surveillance. Consequently, they were held in contempt. By a narrow majority, the Court ruled in favor of the petitioners and held that Title III’s suppression provision provides a ‘‘just cause’’ defense to contempt charges. This ruling was controversial, however, because it assumed that the electronic surveillance was illegal, when the issue of illegality had not been formally adjudicated by the lower courts that had initially heard the petitioners’ claims.
The 1974 cases of United States v. Giordano, 416 U.S. 505, and United States v. Chavez, 416 U.S. 562, gave the Court an opportunity to issue substantive guidance to lower courts regarding the scope of Title III’s exclusionary rule. Each case involved the issue of whether all Title III violations, regardless of their severity, mandate suppression of the evidence obtained from the electronic surveillance. In both cases, the defense challenged the legality of the surveillance on the basis of the improper authorization of the surveillance applications. As noted above, Title III requires surveillance applications to be signed by an approved executive branch official.
In Giordano, the attorney general’s signature had routinely been affixed by his executive assistant, who was not statutorily authorized to make such approvals, without the review or approval of the attorney general. In Chavez, while the attorney general had apparently approved the surveillance request, the defense argued that the surveillance was illegal because the application had misrepresented the authorizing official to be the attorney general’s specially designated assistant attorney general.
The Giordano Court ruled that because authorization by the proper official is a key requirement to the statutory framework, suppression was mandated. The Court employed this same rationale in Chavez as well, but ruled in favor of the government. It concluded that while the misrepresentation violated Title III’s identification requirement, suppression was inappropriate because the identification provision was not ‘‘central’’ to the statutory scheme. This ‘‘centrality’’ rationale sparked a negative response from critics who argued that the standard represented an exceedingly narrow interpretation of Title III and that lower courts would have difficulty applying it. The Court would revisit this issue three years later in United States v. Donovan, 429 U.S. 413 (1977).
In the meantime, however, the Court stated significant constitutional dicta in United States v. Kahn, 415 U.S. 143 (1974), a ruling that would guide the Donovan decision. In Kahn, the surveillance application and order listed the targets of surveillance as ‘‘Irving Kahn and others as yet unknown.’’ Investigators intercepted various calls in which Mrs. Kahn participated and incriminated herself in a gambling scheme. The defense argued that Mrs. Kahn was ‘‘known’’ to the agents; thus, Mrs. Kahn was not ‘‘unknown’’ under the statute or the surveillance order. The Court rejected this contention and, in a strict reading of the statute, ruled that Mrs. Kahn was legally ‘‘unknown’’ because the agents lacked probable cause that Mrs. Kahn was engaged in criminality via the telephone.
Beyond this holding, the Kahn Court also intimated that Title III’s identification requirement was not constitutionally mandated. As Goldsmith has noted, the Court offered this assertion despite the language in Berger v. New York suggesting the opposite, the holding in Katz that the Fourth Amendment protects people and not just places, and the legislative history of Title III indicating that surveillance techniques should be used only under limited circumstances that comply with the particularity requirement of the Fourth Amendment.
The significance of Kahn’s dicta was demonstrated in United States v. Donovan, a decision in which multiple defendants were prosecuted for gambling-related offenses based largely upon evidence obtained by a series of wiretaps. The Court found two separate Title III violations. One violation occurred because the surveillance application and omitted three of the defendants targeted for wiretapping, despite probable cause they would conduct illegal gambling on the telephone. Another violation occurred when two of the defendants failed to receive an inventory notice because the government failed to inform the supervising judge that they were the subjects of surveillance.
The next question for the Donovan Court was whether these violations warranted suppression of the evidence obtained from the surveillance. In determining whether the violation of the target identification rule triggered a suppression remedy, the Court reaffirmed Kahn’s principle that this requirement was not constitutionally mandated. The Court then applied the GiordanoChavez centrality test and concluded that the identification rule was not crucial under the statute; as a result, suppression was denied.
When conducting electronic surveillance, Title III also requires federal agents to minimize the interception of communications not relevant to the investigation. This provision is called the ‘‘minimization requirement.’’ The meaning and scope of this rule remained controversial until Scott v. United States, 436 U.S. 128 (1978), was decided by the Court. In Scott, agents purposely and knowingly failed to minimize any of the 384 conversations they intercepted over a monthlong surveillance period. The Court ruled that the agents’ subjective intent was irrelevant in determining whether a violation occurred. The Court looked to the Fourth Amendment’s ‘‘reasonableness’’ standard to define Title III’s minimization rule. The Court explained that the objectivity test used to decide whether a constitutional violation has occurred should also be used to decide whether a statutory violation has occurred. The Court concluded that the failure to minimize in the Scott case was not objectively unreasonable and, as a result, no statutory violation had occurred.
In the 1979 case of Dalia v. United States, 441 U.S. 238, the Court addressed whether Title III authorized covert entries into private premises to install surveillance equipment. Emphasizing that electronic surveillance not authorized by the statute was deemed impermissible, the defendant argued that because Title III did not specifically authorize covert entry to install bugging equipment, the judicial order authorizing the surveillance of his office was illegal. The Court disagreed, however, and ruled that the language, structure, and history of Title III demonstrated that Congress intended to authorize covert entries. Testimony presented to Congress demonstrated congressional knowledge that most forms of electronic bugging required covert entries to install surveillance devices. A contrary holding, according to the Court, would contravene Title III’s purpose of providing new investigatory methods to curtail organized crime.
Americans appear to have a ‘‘love-hate’’ attitude toward governmental electronic surveillance and covert spying. On the one hand, an overwhelming majority of the population supports police efforts to identify and prosecute persons who commit serious and violent crimes. In many contexts, such as political corruption and organized crime cases, informants and wiretaps are critical crime-fighting tools for government investigators. On the other hand, Americans treasure their freedom and resist unsolicited governmental intrusion into their lives. Security and privacy are jeopardized when individuals learn that the government has recruited and planted informants in their lives to gather information. While many concede that informants and spies are essential for effective law enforcement, few cherish the thought that a coworker or girlfriend may actually be a police spy. Put simply, many Americans adopt the view that surreptitious electronic surveillance is fine, but ‘‘not in my backyard.’’
When these strong and sometimes conflicting attitudes toward covert surveillance are combined with a well-documented history of government overreaching, both at the federal and state levels by spying on its citizens, Americans are often surprised to learn that the Court has imposed few restraints on the government’s authority to plant or send covert informants and spies into our lives. If one accepts the fundamental historical claim that the Fourth Amendment reflected the Framers’ distrust of police power and was designed to limit the discretionary power of the police to invade one’s home, it becomes paradoxical for the Court to allow police officials unchecked discretion to plant spies and informants into one’s privacy.
Consider, for example, the result in Lewis v. United States, the least controversial of the Court’s secret spy cases. Many see no constitutional harm where a covert agent enters a home to purchase narcotics from someone like Lewis. On the surface, Lewis does appear to be an easy case. But on further study, Lewis is troubling. First, the facts reveal a police entry of Lewis’s home that was neither authorized by a judicial warrant nor an exigency. Normally, the absence of a warrant or an emergency would preclude police entry into a person’s home. Second, the waiver theory utilized by the Lewis Court proves too much. Imagine that the police are strongly convinced that a house is filled with illegal weapons. Imagine further that the police also have solid evidence that the owner willingly sells the weapons to anyone who can produce sufficient cash. Can the police enter the premises without a warrant because the owner obviously does not use it as a home and thus, for constitutional purposes, has waived his Fourth Amendment rights by converting the building into an unlawful weapons storage facility? The legal answer is no. Despite the suspect’s illegal conduct, there is no ‘‘waiver’’ of his Fourth Amendment rights. Therefore, the fact that Lewis sold drugs from his home should be irrelevant.
If one of the values protected by the Fourth Amendment is freedom from discretionary police intrusion of the home or office, that norm is doubly offended in cases like Hoffa because the target chosen for scrutiny by the police is unaware of the government’s presence and monitoring of his private activities. The Court found Hoffa’s privacy interests illegitimate because the Constitution does not protect ‘‘a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.’’ It is submitted here that this statement is specious because the informant in Hoffa was not a friend who subsequently decided to betray Jimmy Hoffa, but a government spy right from the start. More importantly, the Court’s description of the constitutional interest at stake in Hoffa turns upside down the value system inherent in the Fourth Amendment. When positive proof that an individual has committed a crime exists in the traditional search and seizure context, the burden is still on the government to justify and to limit the intrusion.
In the secret spy cases, however, Fourth Amendment values are reversed. After Hoffa, the government need not first assemble objective evidence of wrongdoing to covertly invade the homes and offices of its citizens. After Hoffa, the government may bypass neutral judicial authorization for the intrusion sought by its undercover agents. After Hoffa, secret spying missions need not particularize the person, place, and nature of the conversations subject to surveillance and recording. Whatever the informant sees and hears, regardless of the nexus to criminal behavior, is information known to the police. After Hoffa, such wide-ranging surveillance is without time limit and need not be supervised by a judge.
The Court’s assumption of risk analysis— utilized in On Lee, Lopez, and White—also poses constitutional problems. First, the Court does not and cannot reconcile risk theory with the origins of the Fourth Amendment. True, the use of secret informants has deep historical roots. Moreover, the Framers of the Constitution left no specific clues regarding their intent as to whether the Fourth Amendment would regulate or forbid secret informants. The Framers also said nothing about eavesdropping, but that omission did not justify leaving eavesdropping and its modern equivalent, wiretapping, to the whims of the police.
The Framers opposed governmental intrusions that permitted discretionary invasions of the home. In light of this history, is it fair to surmise that the Framers would have favored an interpretation of the Fourth Amendment that grants the police absolute authority to send informants and secret spies into a person’s home? Or, is it more likely that the Framers, who despised general warrants because they allowed government agents to search and seize at will, would have also opposed giving those same agents absolute discretion to use secret informants to search and seize at will?
Even if the history of the Fourth Amendment is ignored, there are other flaws in the Court’s risk theory. There is no substantive distinction between the modern Court’s risk analysis and the Court’s prior conclusion in Olmstead that an individual who uses the telephone intends to project his voice to those outside. Why is the former conclusion constitutionally reasonable but not the latter? There is no more empirical support for the modern Court’s conclusion that citizens assume certain risks whenever they speak to a third party than there was for the now discredited assumption in Olmstead.
In 1971 the White Court insisted that wiretapping involves ‘‘no revelation to the Government by a party to the conversations with the defendant.’’ This assertion is true, but the factual characterization of the mechanics of wiretapping neither justifies nor explains the Court’s legal conclusion about the risks associated with informant spying. The White Court’s risk theory is applicable in contexts beside informant spying. If people assume the risk that their companions are police agents, then why don’t people also assume the risk that the government may be wiretapping their calls or reading their mail?
Americans assume the police lack the discretion to covertly monitor their telephone conversations or peruse their mail because the Court has interpreted the Constitution in a manner that requires the police to satisfy certain legal safeguards before such intrusions may occur. If the Fourth Amendment restrains the discretion of the police to wiretap or bug private conversations, it is not apparent why that same provision is inapplicable when the police monitor and record private conversation through the use of a secret informant deliberately positioned to hear those conversations. After all, a secret informant acts as a ‘‘human bug’’ for the government. If there is a constitutional difference between unrestrained wiretap surveillance and unrestrained informant spying, the Court has not yet identified the difference.
If the preceding critique is correct, the Court and Congress alike have erred in exempting informant spying from the constitutional limitations imposed on other forms of electronic surveillance. The use of informants should be regulated in a manner similar to the way in which Title III regulates wiretapping and electronic bugging. For example, the Fourth Amendment’s probable cause rule should apply to informant spying the same way it applies to electronic surveillance. Further, a particularity requirement like the one in Title III would limit the unbridled and open-ended intrusions that often occur with informant spying.
Yet Title III, as interpreted by the Court, is not without its own drawbacks. The statute was initially enacted to prohibit most forms of electronic surveillance. In fact, all forms of wiretapping and electronic surveillance were prohibited unless specifically authorized by the statute. As the above discussion illustrates, however, the Court’s Title III decisions have departed dramatically from this approach. Many of the safeguards of Title III have been undercut by the Court’s failure to strictly enforce the statute.
It is an open question whether the current status of the law governing electronic surveillance will survive as new technological advances continue to emerge that threaten the privacy of individuals. Perhaps, as new methods of investigating crime are developed, the Supreme Court and Congress alike will be forced to clarify, revise, or replace the current legal framework that governs wiretapping and electronic eavesdropping.
- CARR, JAMES The Law of Electronic Surveillance. 2 vols. Deerfield, Ill.: Clark, Boardman, and Callaghan, 1998.
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- FISHMAN, CLIFFORD ‘‘Interception of Communications in Exigent Circumstances: The Fourth Amendment, Federal Legislation, and the United States Department of Justice.’’ Georgia Law Review 22 (1987): 10.
- GOLDSMITH, MICHAEL. ‘‘The Supreme Court and Title III: Rewriting the Law of Electronic Surveillance.’’ Journal of Criminal Law and Criminology 74 (1983): 1.
- KAMISAR, YALE; LAFAVE, WAYNE; ISRAEL, JEROLD H.; and KING, NANCY. Modern Criminal Procedure, 9th ed. St. Paul, Minn.: West Group, 1999.
- MACLIN, TRACEY. ‘‘Informants and the Fourth Amendment: A Reconsideration.’’ Washington University Law Quarterly 74 (1996): 573.
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