Surveillance or Security?: The Risks Posed by New Wiretapping Technologies (14 page)

Government wiretapping started with the telegraph. Electronic eavesdropping was in use during the Civil War, when a tapper traveled with
General Jeb Stuart.' In 1895, when there was less than one telephone per
200 people, New York City police were using wiretapping in criminal
investigations.' The first concerted use of wiretapping for these investigations occurred during Prohibition-the period from 1919 to 1933, when
the production, sale, and transportation of alcohol was illegal.

Wiretapping was the principal means of investigation by Prohibition
enforcement officers.' This should be no surprise. The illegal production,
sale, and transport of alcohol-especially the sale and transport-require
a complex organization that typically will pay off the police as part of
its work plan. Penetrating organized crime of this nature is difficult, and
wiretapping is a particularly effective tool to obtain information about
a closed conspiracy. Such electronic eavesdropping was used to gather evidence in the case of Roy Olmstead, a Seattle bootlegger who had been
running a vast operation. Using the telephone to handle orders, Olmstead
and his co-conspirators worked out of an office in downtown Seattle. Four
federal Prohibition officers tapped the office line as well as phone wires
outside the homes of several participants.

Olmstead's lawyers argued that the warrantless wiretaps violated his
constitutional rights against illegal search and seizure. The court did not
agree and Olmstead was convicted of participating in "a conspiracy of
amazing magnitude to import, possess and sell liquor unlawfully."9
Olmstead appealed, and the case made its way to the U.S. Supreme Court.

The Supreme Court was closely divided but ruled that the warrantless
wiretaps had not involved trespass. Thus neither the Fourth, nor therefore
the Fifth, Amendment was violated. Five justices, a majority, concurred
that the Fourth Amendment's protections were only for tangibles."

The most famous opinion in the Olmstead case is, however, not the
majority one, but the dissent provided by Justice Louis Brandeis. He argued
that protections provided by the Bill of Rights should operate in a world
of electronic communications:

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, and although
proper, confidential and privileged, may be overheard. Moreover, the tapping of one
man's telephone line involves the tapping of the telephone of every other person
whom he may call, or who may call him. As a means of espionage, writs of assistance
and general warrants are but puny instruments of tyranny and oppression when
compared with wiretapping."

Unhappy with the Supreme Court's decision, Congress considered
several bills to make wiretapping illegal, but in the end, passed nothing
expressly addressing the issue. However, in 1934 the Federal Communications Act (FCA)12 was enacted, section 605 of which prohibited the unauthorized "interception and divulgence" of wired communications.

In 1937 another bootlegging case came to the Supreme Court, that of
Carmine Nardone. The U.S. government had wiretapped Nardone, but
Nardone did not try a constitutional argument against warrantless wiretapping. Instead he claimed that the FCA prohibition of "interception and
divulgence" of wired communications applied to law enforcement officers.
Nardone won.13 What is interesting to note is that the law that preceded
the Federal Communications Act, the Radio Act of 1927, had similar
wording regarding the legality of the interception and divulgence of radio
communications. Olmstead's lawyers had chosen instead to argue their case
on the basis of the constitution. That was not a winning strategy in 1928.

Two years later Nardone was back in court, concerned about the "fruit
of the poisoned tree": was evidence derived from the warrantless wiretaps
admissible in court? The Court said no.14 Quoting an earlier case involving
illegal search and seizure,15 the Court noted, "The essence of a provision
forbidding the acquisition of evidence in a certain way is that not merely
evidence so acquired shall not be used before the court, but that it shall
not be used at all."

With a court ruling in hand that the Federal Communications Act also
applied to intrastate communication, 16 U.S. Attorney General Robert
Jackson ordered the end of FBI wiretapping. Despite the order, FBI warrantless wiretapping was to continue for over three decades. Two things made
that happen: the Department of Justice's (DoJ) interpretation of the Nardone
decision and FBI Director J. Edgar Hoover. The Department of Justice construed the Nardone decision to mean that the combination of interception
and divulgence of wired communications was illegal but that interception
itself was permitted. This odd viewpoint allowed the federal government
to wiretap so long as the contents were not divulged outside the
administration.17

Although the department's interpretation of interception meant that the
government was already able to conduct intelligence surveillance, the start
of World War II gave FBI Director Hoover an opportunity to seek permission
from the president to conduct electronic surveillance against potential
spies. In a fateful decision, Roosevelt granted explicit permission to conduct
electronic surveillance in situations that would now be called nationalsecurity cases. While the president's order limited wiretapping "insofar as
possible" to aliens,18 within a few years the limitation disappeared.19 For
the next thirty years, the FBI wiretapped with little supervision.

The Department of Justice's belief that it could not prosecute in any
case in which wiretapping had occurred created a complex state of affairs.
The FBI, the nation's premier law enforcement agency, hid any evidence
of its wiretaps,20 for disclosure would end a case.21 Besides targeting criminals, the bureau wiretapped citizens and groups exercising their civil and
political rights,22 including the November 1969 anti-Vietnam War groups'
March on Washington,23 journalists,24 such civic groups as the Los Angeles
Chamber of Commerce, and critics and opponents of various administrations25-and the FBI hid that too. Even members of the government were
wiretapped.26

The FBI wiretapping was a well-known secret in Washington. This made
legislative oversight of the agency27 highly problematic-a situation that
did not escape the wily Hoover. For example, in 1965, Missouri Senator Edward Long sought to investigate the government's use of electronic
surveillance. Two senior FBI officials met with Long and dissuaded him
from doing so. When the senator was unable-or unwilling-to write a
press release saying that he was satisfied with FBI usage of wiretaps and
microphones, the bureau agents wrote one for him (it was released under
the senator's name). A year later, Long introduced a bill limiting FBI wiretapping to national-security cases. This time the FBI did not meet and write
a press release; instead, the national magazine Life ran a story that Long
had received $48,000 from Jimmy Hoffa's counsel (Hoffa was a corrupt
Teamster's Union official). The article implied the money was a bribe to
help Hoffa. Long lost a state primary shortly afterward, and his political
career ended.28 Such lessons were not lost on other legislators.

The FBI ran an extensive wiretapping and bugging operation on the
civil rights leader Martin Luther King Jr. In its counterintelligence operations, it sought to use information the bureau learned about his extramarital affairs to discredit him.29 The bureau also shared information about
King's political activities with President Johnson, who was at odds with
the civil rights leader during the 1964 Democratic Party convention."
During the Nixon years, journalists who crossed the president were tapped;
this included reporters from CBS News, the London Sunday Times, and the
New York Times.31

The widespread FBI wiretapping became public knowledge in the 1970s,
when the Senate, in response to the abuses uncovered during the Watergate investigations, examined governmental domestic surveillance abuses.
This was done by the Senate Select Committee to Study Governmental
Operations with respect to Intelligence Activities, which became known as
the Church Committee, after its chairman, Senator Frank Church. The
committee found a train of wiretap abuses as far back as the 1940s and the
presidency of Harry Truman;` these abuses continued through the 1970s
and the Nixon era. Some of the abuses occurred with the knowledge of the
White House, but many did not.

In U.S. law the term electronic surveillance refers not only to wiretaps,
but also to bugs or covert listening devices, typically quite small, whose
transmissions travel through radio waves. Even though bugs are used to
capture face-to-face conversations, and the topic of this book is wiretapping and secure telecommunications, because U.S. law unifies these two
technologies, a brief discussion of the legal aspects of bugging is in order.

The 1934 Federal Communications Act referred only to the interception
of wired communications, an omission that left the bugging of conversations unaffected by the Nardone rulings. At first the Supreme Court traveled the Olmstead path on bugging. In 1942, in Goldman v. United States'33 the
Supreme Court ruled that law enforcement officers could plant a bugging
device on a wall adjoining that of a suspect's office-no warrant needed.
In 1954, in Irvine v. California '34 the Court considered evidence from microphones concealed in walls of the defendants' homes; the devices had been
installed during warrantless break-ins by the police. The Court expressed
concern about this:

Each of these repeated entries of petitioner's home without a search warrant or other
process was a trespass.... That officers of the law would break and enter a home,
secrete such a device, even in a bedroom, and listen to the conversation of the occupants for over a month would be almost incredible if it were not admitted. Few police
measures have come to our attention that more flagrantly, deliberately, and persistently violated the fundamental principle declared by the Fourth Amendment.

The case was a California prosecution for a state crime and the Court chose
to accept the evidence. Then in 1961, in Julius Silverman et al. v. United
States'35 the Court changed direction. In a District of Columbia case, police
investigating gambling pushed a foot-long microphone into the space
under the suspect's apartment from the house next door. The Court
ruled that a search, in the meaning of the Fourth Amendment, occurred
whenever a bug was used. It took one more case to end the situation of
warrantless bugs. This was Charles Katz v. United States.36

Charles Katz was a Los Angeles gambler who used a public phone booth
to place his bets. Police had placed a listening device on the outside of the
booth. The Court ruled that the fact that the booth was public and that
the bug was on the outside of the booth was not important:

The Fourth Amendment protects people, not places.37 ..What [Katz] sought to
exclude when he entered the [telephone] booth was not the intruding eye-it was
the uninvited ear.... [A] person in a telephone booth may rely upon the protection
of the Fourth Amendment. One who occupies it, shuts the door behind him, and
pays the toll that permits him to place a call is surely entitled to assume that the
words he utters into the mouthpiece will not be broadcast to the world. To read the
Constitution more narrowly is to ignore the vital role that the public telephone has
come to play in private communication.38

With this ruling, the Supreme Court had come full circle on the Olmstead
decision. The Court held that the Fourth Amendment protections apply
to such ephemera as communications. The Katz decision did not rule out
wiretaps and bugs; indeed the ruling makes clear that a "procedure of
antecedent justificationi39 would have legalized the Katz search.40 It was
time for Congress to fix the wiretap problem.

4.2 How Wiretapping Works

Wiretapping simply means intercepting a call. It can involve a person
listening in or it can involve taping for future use, or both. If the recipient
of the call permits the eavesdropping (e.g., in a kidnapping case), the
interception is called a consensual overhear;, under U.S. law such interception does not require a court order. But the same freedom does not apply
to such eavesdropping by private parties. Some U.S. states permit one-party
consent for the taping of a call, but others are two-party consent states, in
which both parties must acquiesce in order for a call to be taped.

Wiretapping can be done anywhere along the communication path,
including in the phone itself. The decision on where to tap is a trade-off
between stealth and ease of installation.41 Using an electronic bug, a
small device capable of sending radio signals, allows tapping within the
phone itself. This has the drawback of needing to do a black-bag job-a
break-in-to hide the bug, but after that, as long as the battery-operated
device has sufficient power and the suspect has no inkling that he is being
tapped, this solution has the advantage of being perfectly hidden. It is
essentially invisible, and its operation does not involve telephone-company
personnel.

Old film noir movies have the wiretapper in the basement of an apartment building, using alligator clips to connect into the phone lines and
listening through a headset. Indeed, taps can be placed at a phone junction
box or on a telephone pole. Such locations have the disadvantage, however,
that they are publicly visible. These locations are subject to maintenance
by the telephone-company personnel, who may discover the tap and
disable it.42

The next most likely place for a tap is at the telephone company's
central office. That is where the pair of wires associated with the subscriber's phone, known as the local loop, are placed onto a frame, where
they are sorted into numerical order. From here they go to a switch to be
connected to outgoing lines. Because a phone circuit has many possible
paths-during busy times a call from New York to Washington may go by
way of Chicago-it is impossible to predict exactly which path a call may
take. In the predigital age, the frame was the last possible place to ensure
that a wiretap picked up all communications to/from a particular number.
This was done through placing a loop extender, a tap that created a logical
fork on the subscriber's line, bridging it to a so-called friendly circuit, a line
from the loop extender that fed directly into a secure location for
monitoring.43