Wiretapping

Fourth Amendment Concerns and Established Precedent

The Fourth Amendment to the U.S. Constitution provides citizens protection against unreasonable searches and seizures. The Fourth Amendment is intended to limit overzealous behavior by the police by requiring that all warrants for arrests, searches, and seizures be issued by a neutral, detached magistrate upon receiving adequate probable cause that the arrest, search, or seizure is justified. The practice of wiretapping by law enforcement in the United States has called into question many Fourth Amendment concerns. For instance, is a telephone conversation considered private and confidential? Can capturing a conversation be considered a search or seizure?

The U.S. Supreme Court has spent many decades building precedent for the act of wiretapping, beginning in 1928 in Olmstead v. United States. This case occurred during the Prohibition era, and Roy Olmstead was suspected of violating federal alcohol prohibition laws. After capturing incriminating statements in conversations between Olmstead and his lawyer via a wiretap on his phone, Olmstead was convicted. The court ruled that wiretaps were not considered to be searches and seizures for two main reasons. First, the court decided that at no time did the police trespass on the defendant's premises, so no property was “searched.” Second, only conversations were obtained, so no property was tangibly “seized.” Therefore, the actions of the police did not violate the Fourth Amendment, and Olmstead's conviction stood.

However, in 1934 Congress enacted the Communications Act. Section 605 of this act prohibited anyone from intercepting communications and disclosing their contents unless authorized by one of the parties involved. This somewhat limited the use of wiretap evidence in federal court, yet the Federal Bureau of Investigation (FBI) continued to utilize wiretaps, claiming that matters of national security were not prohibited under Section 605.

In the 1960s, the Supreme Court revisited this notion that a search could possibly take place without a physical trespass on a person's property. In 1967, the Supreme Court overturned the Olmstead decision in the landmark case Katz v. United States. The standards for Fourth Amendment protections outlined in Katz remain the precedent today.

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