Electronic Surveillance

Development of Electronic Surveillance

The use of electronic surveillance technology can be traced back as far as the late 1800s, when it was discovered that the newly constructed telephone lines could be tapped into, thereby allowing for the monitoring of individuals' phone communications. The technology and procedures associated with this activity became known as wiretapping, and the technique is believed to have been used during the Civil War as a means of Confederate and Union agents intercepting military commands. The use of such techniques provided new investigative opportunities for law enforcement personnel, since surveillance could now be conducted on conversations coming from rooms, buildings, and other enclosures without the requirement of physical entrance into the area. In fact, the justification or determination of the legality of these devices was often based upon the grounds that there was no physical intrusion into the suspect's privately protected areas.

Eventually the Supreme Court examined whether the use of such electronic monitoring devices violated the Fourth Amendment's prohibition on unreasonable searches and seizures. In Olmstead v. United States (277 U.S. 438) the court was asked to determine whether law enforcement officers violated the Constitution when they obtained evidence against a suspect through the use of a wiretap device attached in the basement of the suspect's building. The government based its argument on the fact that there was no violation due to there being no physical trespass into the private areas controlled by the suspect. The Court agreed with the government's argument and in 1928 found that “there was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only…. The wires are not a part of his house or office, any more than are the highways along which they are stretched” (pp. 464–465).

Following the Court's decision in Olmstead there developed a belief that without physical trespass there was no violation of the Fourth Amendment, and the use of electronic surveillance was held to be a valid method of circumventing the protections of the Constitution. Congress, in an attempt to regulate the use of electronic surveillance technology, passed the Communications Act of 1934, which regulated the unauthorized recording of telephone calls. However, there were several problems with the legislation. The primary cause of concern was that the Communications Act only regulated the recording of communications that were to be released. The legislation was ineffective in dealing with recordings in which the government did not reveal any of the contents of communications. Once again the issue turned to the courts, and over the next three decades the Supreme Court began systematically eliminating the belief that physical trespass was necessary for a violation of the Fourth Amendment.

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