A look into Wiretapping

Wiretapping
is the traditional term for interception of telephone conver-
sations. This should not be taken too literally. The word is no
longer restricted to communications traveling by wire, and
contemporary wire- taps are more commonly placed on radio links or
inside telephone offices. The meaning has also broadened in that
the thing being tapped need no longer be a telephone call in the
classic sense; it may be some oher form of electronic
communication, such as fax or data.

Compared
with the more precise but more general phrase "commu-
nications interception," the word "wiretapping" has
two connotations. Much the stronger of these is that a wiretap is
aimed at a particular target, in sharp contrast to the "vacuum
cleaner" interception widely practiced by national
intelligence agencies. The weaker connotation is that it is being
done by the police.

The
history of wiretapping in the United States is in fact two
histories intertwined. It is a history of wiretapping per se--that
is, a history of the installation and use of wiretaps by police,
intelligence agencies, hones citizens, businesses, and criminals.
It is also a history of society's legal response to wiretapping by
these various groups.

The
origins of wiretapping lie in two quiet different practices:
eaves- dropping and letter opening. "Eavesdropping,"
although once more re- stricted in meaning, has come to describe
any attempt to overhear con- versations without the knowledge of
the participants. "Letter opening" takes in all
acquisition, opening reading, and copying of written mes- sages,
also without knowledge of the sending and receiving parties.
Telecommunication has unified and systematized these practices.

Before
the electronic era, a conversation could only be carried on by
people located within earshot of each other, typically a few feet
apart. Neither advanced planning nor great effort on the part of
the participants was required to ensure a high degree of security.
Written communica-tions were more vulnerable, but intercepting one
was still a hit-or-miss affair. Messages traveled by a variety of
postal services, couriers, travel- ers, and merchants. Politically
sensitive messages, in particular, could not be counted on to go
by predictable channels, so special couriers were sometimes
employed.

And
written messages enjoyed another sort of protection. Regardless of
a spy's skill with flaps and seals, there was no guarantee that,
if a letter was intercepted, opened, and read, the victim would
not notice the intrusion. Since spying typically has to be done
covertly in order to succeed, the chance of detection is a
substantial deterrent.

Electronic
communication has changed all this in three fundamental ways: it
has made telecommunication too convenient to avoid; it has,
despite appearances, reduced the diversity of channels by which
written messages once traveled; and it has made the act of
interception invisible to the target.

Conversation
by telephone has achieved an almost equal footing with
face-to-face conversation. It is impossible today to run a
successful busi-ness without the telephone, and eccentric even to
attempt to do without the telephone in private life. The telephone
provides a means of commu-nication so effective and convenient
that even people who are aware of the danger of being overheard
routinely put aside their caution and use it to convey sensitive information.

As
the number of channels of communication has increased (there are
now hundres of communication companies, with myriad fibers, satel-
lites, and microwave links), the diversity of communication paths
has diminished. In the days of oxcart and sail, there was no
registry of the thousands of people willing to carry a message in
return for a tip from the recipient. Today, telecommunications
carriers must be registered with national and local regulatory
bodies and are well known to trace associ- ations and industry
watch groups. Thus, interception has become more systematic.
Spies, no longer faced with a patchwork of ad hoc couriers, know
better where to look for what thet seek.

Perhaps
more important, interception of telecommunications leaves no
telltale "marks on the envelop." It is inherent in
telecommunication-- and inseparable from its virtues--that the
sender and the receiver of a message have no way of telling who
else may have recorded a copy.

Any
discussion of wiretapping, particularly a legal discussion, is
com- plicated by the fact that electronics has not only made
interception of telecommunications possible; it has also made it
easier to "bug" face-to-face conversations. Bugging
would be nearly irrelevant to the central sub-ject of this
document--Taking A Deeper Trip Into Wiretapping--were it not for
the fact that bugs and wiretaps are inseparably intertwined in law
and jurisprudence and named by one collective term: electronic
surveillance.

Wiretaps
and bugs are powerful investigative tools. They allow the
eavesdropper to overhear conversations between politicians,
criminals, lawyers, or lovers without the targets' knowing that
their words are being share with unwanted listeners. Electronic
surveillance is a tool that can detect criminal conspiracies and
provide prosecutors with strong evidence--the conspirators'
incriminating statements in their own voices --all without danger
to law-enforcement officers. On the other hand, the very
invisibility on which electronic surveillance depends for its
effective- ness makes it evasive of oversight and readily
adaptable to malign uses. Electronic surveillance can be and has
been used by those in power to undermine the democratic process by
spying on their political opponents. In light of this, it is not
surprising that Congress and the courts have approached
wiretapping and bugging with suspicion.

Today,
communication enjoys a measure of protection under US law, and
neither government agents nor private citizens are permitted to wire- tap at will. This has not always been the case. The current
viewthat wiretaps are a kind of search--has evolved by fits and
starts over a cen- tury and a half. The Supreme Court ruled in
1967 that the police may not employ wiretaps without court
authorization. Congress has embraced this principle, limiting
police use of wiretaps and setting standards for the granting of
warrants. The same laws prohibit most wiretapping by private
citizens.

The
rules against unwarranted wiretapping are not absolute, however.
For example, the courts ruled in 1992 (United States vs. David Lee
Smith, 978 F. 2nd 171, US App) that conversations over cordless
phones were not protected and that police tapping of cordless
phones did not require a search warrant. A 1994 statute
(Communications Assistance for Law En- forcement Act of 1994,
Public Law 103-414, §202) extended the warrant requirements
of the earlier law to cover cordless phones. The law also makes
some exceptions for businesses intercepting the communications of
their own employees on company property.

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