A Brief History of Wiretaps

Finding the proper balance among privacy, security, and law enforcement interests in the realm of wiretapping has always been a complex endeavour. With rapid changes in communications technology quickly reshaping the way people interact, the nation must frequently re-examine its laws to ensure equilibrium among these competing concerns.

This re-examination led to the passage in 1968 of the first federal statutes controlling wiretapping ("Title III"), the "Electronic Communications and Privacy Act" of 1986 (ECPA), the "Communications Assistance for Law Enforcement Act" of 1994 (CALEA) and now the attempted extension by the FCC of CALEA.

The foundation of wiretap legislation is the 4th Amendment of the United States Constitution, which reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, 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.

The 4th Amendment is particularly controversial in terms of wiretaps where no physical search takes place. Since the 4th Amendment was originally construed only to apply to physical searches-based on the language of "persons, houses, papers, and effects"- early courts held that no warrant was needed, provided there was no physical trespass (see Olmstead v. United States, 1928).

The need for law enforcement to seek judicial oversight, in the form of a warrant, for wiretaps has existed since Katz v. United States in 1967 and the codification in Federal statute in 1968 of Title III of the "Omnibus Crime Control and Safe Streets Act." Title III begins:

To safeguard the privacy of innocent persons, the interception of wire or oral communications where none of the parties to the communication has consented to the interception should be allowed only when authorized by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court.

In its most basic form, Title III outlawed wiretapping except when law enforcement agents obtained a specific court order. In addition, it limited wiretaps to specific serious crimes and only as a last resort when other investigative techniques had been exhausted. It required that interception of non-relevant communications be minimized. Finally, law enforcement officers were required to notify the target within a specific time period in order to allow for challenges to probable cause and the conduct of the wiretap.

In 1986, Congress passed the "Electronic Communications Privacy Act" (ECPA) to extend these same limitations to new electronic communications, including video, text, audio, and other forms of data transmission. Law enforcement agents were now required to obtain a warrant to, for example, intercept and read e-mail. Other forms of Internet-based communications were not explicitly included (although ECPA clearly implied they should be) until the passage of the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act" (USA PATRIOT Act) in 2001.

A core underpinning of Title III was Congress' assumption "that capture of electronic communications would not be an unreasonable intrusion if there were stringent ex parte judicial review before the fact, minimization during a search, and equally stringent adversarial review after the investigation had been completed."This limited framework supporting restricted wiretaps began to slowly degrade over the years as law enforcement pushed the boundaries of what was permitted and courts and legislatures began to allow them greater latitude in granting warrants.7 Nonetheless, an uneasy balance was maintained for almost 40 years.