Wiretapping and Eavesdropping

Although the Warren Court's rulings on informants were distinctly pro-government in tone and result, one year after Lewis and Hoffa were decided the Court appeared to adopt a new way of looking at the Fourth Amendment. This new approach was less deferrential to the claims of government. In two cases decided in 1967, the Court rejected arguments that law enforcement officials are free to conduct electronic surveillance without satisfying the procedural safeguards required by the Fourth Amendment.

A new judicial framework. In 1967 two rulings by the Court intimated a new doctrinal approach for electronic surveillance cases. The first case, Berger v. New York, 388 U.S. 41 (1967), addressed a constitutional challenge to a New York statute allowing court-authorized electronic surveillance. The defendants were convicted of conspiracy to corrupt the New York State Liquor Authority. The incriminating evidence against some of the defendants was obtained pursuant to several court-ordered bugs authorized by the New York statute. A majority of the Berger Court concluded that the New York statute was facially unconstitutional for essentially two reasons: the statute did not require that a judge find probable cause before issuing an electronic surveillance warrant, and the statue failed to limit the nature, scope, or duration of the electronic surveillance.

The second decision–Katz v. United States, 389 U.S. 347 (1967)–signaled that the old ways of analyzing search and seizure issues were no longer acceptable. In Katz, the defendant argued that F.B.I. agents violated his Fourth Amendment rights by attaching an electronic listening and recording device to the outside of a public telephone to monitor his conversations. The Court agreed and reversed Katz's conviction.

The ruling in Katz, however, was not based on traditional search and seizure norms that had controlled earlier electronic surveillance cases. The Court began by asserting that the Fourth Amendment did not grant a "general right of privacy." The amendment "protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all." The Court explained that "the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." While Katz chose to make his illegal calls in public, the Court emphasized that public telephones play a vital role in private communications. Consequently, Katz retained the right to assume the words he spoke while on the telephone would not be broadcast to the world.

Katz also extinguished the lingering notion that a physical trespass was necessary to trigger constitutional review of governmental searches and seizures. While recognizing that the rationale of Olmstead had not been formally overruled, the Court declared that the reach of the amendment "cannot turn upon the presence or absence of a physical intrusion into any given enclosure." Employing this new framework, the Court concluded that wiretapping without judicial authorization violated the Fourth Amendment.

While Katz initiated a new way of thinking about electronic surveillance, a subsequent case demonstrated that this new perspective would not automatically render the previous eavesdropping cases obsolete. In 1971 the Court decided United States v. White, 401 U.S. 745 (1971), whose facts closely mirrored those of On Lee. At issue in White was whether the testimony of federal officers about conversations between the defendant and a government informant, which were overheard by the officers monitoring the frequency of a radio transmitter carried by the informant, implicated the Fourth Amendment. The Court ruled this form of surreptitious electronic eavesdropping was still permissible.

The White Court concluded that nothing in Katz undermined the reasoning of On Lee, Lopez, Lewis, or Hoffa. It reasoned that if an individual assumes the risk that a secret informant, acting without electronic equipment, might later reveal the contents of a conversation, the risk is the same when the informant simultaneously records and transmits the conversation to a third party. In either situation, "the risk is his," and the Fourth Amendment offers no protection against police efforts to obtain information in this manner.

Title III: the statutory response. Prior to the 1960s, many persons contended that if Congress or the Court sanctioned electronic wiretapping or bugging by the police, society would rapidly move toward an oppressive police state. Opponents of electronic surveillance argued that the Fourth Amendment compelled an absolute bar on clandestine surveillance. Justice William Douglas contended that electronic surveillance devices "lay down a dragnet which indiscriminately sweeps in all conversations within its scope, without regard to the nature of the conversations, or the participants. A warrant authorizing such devices is no different from the general warrant the Fourth Amendment was intended to prohibit." Notwithstanding Justice Douglas's misgivings, the rulings in Berger and Katz indicated that the Court would accept some form of regulated electronic surveillance.

Although Berger and Katz had no impact on electronic eavesdropping practices, these rulings did mandate change in the way law enforcement officers employed wiretapping surveillance. These cases also provided a constitutional "blue-print" that was utilized by Congress, which was in the process of crafting legislation designed to regulate electronic surveillance techniques. Within several months of the issuance of Katz, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 was enacted into law. Title III is a comprehensive law that authorizes wiretapping and electronic eavesdropping so long as enumerated constitutional and statutory limitations are followed. Title III also sanctioned informant spying provided the informant is a party to the communication or one of the parties to the communication has given consent to the spying. Title III does not cover national security electronic surveillance, which is addressed in the Foreign Intelligence Surveillance Act of 1978.

Title III prohibits all electronic surveillance except as specifically provided by the statute and punishes violators with criminal and civil penalties. Another remedy available under the statute is a broad exclusionary rule that prohibits the disclosure of unlawfully obtained evidence in governmental judicial, quasi-judicial, and administrative proceedings. As Professor Michael Goldsmith has explained in his article on Title III, the statute imposes three categories of requirements that were designed to limit the use of electronic surveillance techniques: jurisdictional, documentary, and executional.

Jurisdictional requirements. Title III permits an application for a wiretapping or electronic eavesdropping order only for crimes specifically designated by the statute. Those designated crimes are generally felonies that are either intrinsically serious or characteristic of organized crime. The application must be initially approved by a designated government official. Goldsmith has explained that this requirement ensures that a politically accountable executive branch official exercises a high level of discretion before the application even reaches a court. Finally, the application must be filed before a judge with competent jurisdiction, namely federal district and appellate judges and/or their state counterparts.

Documentary requirements. Title III mandates that electronic surveillance orders only be issued on the basis of a properly authorized application, except in emergency situations described in the statute. As Goldsmith has noted, the statute mandates several safeguards. First, an application must be made in writing and under oath. Second, the application must establish probable cause for the person, crime, conversation, communication facility, and time period. In order to curtail the potential for abuse and harassment, the application must also demonstrate that investigators have exhausted all reasonable alternative forms of investigation. Finally, the application must reveal all previous surveillance requests involving persons or facilities named in the instant application.

Assuming these requirements are satisfied, a qualified judge may properly issue an electronic surveillance order. As Goldsmith has detailed, each judicial order must satisfy specific statutory criteria: first, the order must specify the officials authorized to conduct the surveillance; second, it must identify both the place and, if known, the person or persons targeted for interception; third, it must state the particular crime to which the surveillance relates; fourth, the order must specify the period of surveillance; finally, each order must mandate prompt execution, minimal interception of irrelevant conversations, and termination of surveillance when the evidence sought is obtained or when thirty days have passed, whichever occurs first. Title III allows applications for extensions and authorizes judges to issue extension orders in compliance with all statutory requirements.

Executional requirements. Finally, as Goldsmith has described, Title III has various "executional" rules. An investigator armed with a valid electronic surveillance order must also obey Title III's executional requirements when performing the surveillance. These rules mandate that only authorized personnel conduct the surveillance. Further, as previously noted, surveillance must be conducted in a manner that minimizes the interception of irrelevant conversations. All monitored conversations should be recorded to ensure that the "most reliable evidence" of the conversations is presented at trial. The statute also imposes several precautionary executional requirements. The recording must be made in a manner that reduces the risk of alteration and, following the authorized period of surveillance, all tape recordings are to be sealed under judicial supervision. Title III also requires investigators to notify all persons named in the application that they were subjected to electronic surveillance. The judge, however, has discretion to decide whether other parties whose conversations were recorded should receive this notification. The practical effect of these notification provisions is to encourage victims of unlawful surveillance to file civil suits. Finally, Title III mandates that a comprehensive report on each surveillance case must be provided to the Administrative Office of the United States Courts, which in turn will present a compilation of these reports annually to Congress. This final requirement ensures that the public has an opportunity to monitor and evaluate the system.

Judicial interpretation of Title III. The Supreme Court first considered the scope of Title III in United States v. United States District Court, 407 U.S. 297 (1972), a ruling that addressed the president's power to authorize electronic surveillance in internal security matters without prior judicial approval. The Court ruled that Title III did not authorize the president to order warrantless electronic surveillance of American citizens. The Court emphasized that Title III should be interpreted as a broad grant of protection against electronic surveillance, subject to a few narrow exceptions that permits such surveillance.

Several days after the U.S. District Court decision, the Court considered the scope of Title III's exclusionary rule provision. In Gelbard v. United States, 408 U.S. 41 (1972), the petitioners, grand jury witnesses who had been granted immunity from prosecution, refused to answer questions that were allegedly derived from illegal electronic surveillance. Consequently, they were held in contempt. By a narrow majority, the Court ruled in favor of the petitioners and held that Title III's suppression provision provides a "just cause" defense to contempt charges. This ruling was controversial, however, because it assumed that the electronic surveillance was illegal, when the issue of illegality had not been formally adjudicated by the lower courts that had initially heard the petitioners' claims.

The 1974 cases of United States v. Giordano, 416 U.S. 505, and United States v. Chavez, 416 U.S. 562, gave the Court an opportunity to issue substantive guidance to lower courts regarding the scope of Title III's exclusionary rule. Each case involved the issue of whether all Title III violations, regardless of their severity, mandate suppression of the evidence obtained from the electronic surveillance. In both cases, the defense challenged the legality of the surveillance on the basis of the improper authorization of the surveillance applications. As noted above, Title III requires surveillance applications to be signed by an approved executive branch official.

In Giordano, the attorney general's signature had routinely been affixed by his executive assistant, who was not statutorily authorized to make such approvals, without the review or approval of the attorney general. In Chavez, while the attorney general had apparently approved the surveillance request, the defense argued that the surveillance was illegal because the application had misrepresented the authorizing official to be the attorney general's specially designated assistant attorney general.

The Giordano Court ruled that because authorization by the proper official is a key requirement to the statutory framework, suppression was mandated. The Court employed this same rationale in Chavez as well, but ruled in favor of the government. It concluded that while the misrepresentation violated Title III's identification requirement, suppression was inappropriate because the identification provision was not "central" to the statutory scheme. This "centrality" rationale sparked a negative response from critics who argued that the standard represented an exceedingly narrow interpretation of Title III and that lower courts would have difficulty applying it. The Court would revisit this issue three years later in United States v. Donovan, 429 U.S. 413 (1977).

In the meantime, however, the Court stated significant constitutional dicta in United States v. Kahn, 415 U.S. 143 (1974), a ruling that would guide the Donovan decision. In Kahn, the surveillance application and order listed the targets of surveillance as "Irving Kahn and others as yet unknown." Investigators intercepted various calls in which Mrs. Kahn participated and incriminated herself in a gambling scheme. The defense argued that Mrs. Kahn was "known" to the agents; thus, Mrs. Kahn was not "unknown" under the statute or the surveillance order. The Court rejected this contention and, in a strict reading of the statute, ruled that Mrs. Kahn was legally "unknown" because the agents lacked probable cause that Mrs. Kahn was engaged in criminality via the telephone.

Beyond this holding, the Kahn Court also intimated that Title III's identification requirement was not constitutionally mandated. As Goldsmith has noted, the Court offered this assertion despite the language in Berger v. New York suggesting the opposite, the holding in Katz that the Fourth Amendment protects people and not just places, and the legislative history of Title III indicating that surveillance techniques should be used only under limited circumstances that comply with the particularity requirement of the Fourth Amendment.

The significance of Kahn's dicta was demonstrated in United States v. Donovan, a decision in which multiple defendants were prosecuted for gambling-related offenses based largely upon evidence obtained by a series of wiretaps. The Court found two separate Title III violations. One violation occurred because the surveillance application and omitted three of the defendants targeted for wiretapping, despite probable cause they would conduct illegal gambling on the telephone. Another violation occurred when two of the defendants failed to receive an inventory notice because the government failed to inform the supervising judge that they were the subjects of surveillance.

The next question for the Donovan Court was whether these violations warranted suppression of the evidence obtained from the surveillance. In determining whether the violation of the target identification rule triggered a suppression remedy, the Court reaffirmed Kahn's principle that this requirement was not constitutionally mandated. The Court then applied the Giordano-Chavez centrality test and concluded that the identification rule was not crucial under the statute; as a result, suppression was denied.

When conducting electronic surveillance, Title III also requires federal agents to minimize the interception of communications not relevant to the investigation. This provision is called the "minimization requirement." The meaning and scope of this rule remained controversial until Scott v. United States, 436 U.S. 128 (1978), was decided by the Court. In Scott, agents purposely and knowingly failed to minimize any of the 384 conversations they intercepted over a month-long surveillance period. The Court ruled that the agents' subjective intent was irrelevant in determining whether a violation occurred. The Court looked to the Fourth Amendment's "reasonableness" standard to define Title III's minimization rule. The Court explained that the objectivity test used to decide whether a constitutional violation has occurred should also be used to decide whether a statutory violation has occurred. The Court concluded that the failure to minimize in the Scott case was not objectively unreasonable and, as a result, no statutory violation had occurred.

In the 1979 case of Dalia v. United States, 441 U.S. 238, the Court addressed whether Title III authorized covert entries into private premises to install surveillance equipment. Emphasizing that electronic surveillance not authorized by the statute was deemed impermissible, the defendant argued that because Title III did not specifically authorize covert entry to install bugging equipment, the judicial order authorizing the surveillance of his office was illegal. The Court disagreed, however, and ruled that the language, structure, and history of Title III demonstrated that Congress intended to authorize covert entries. Testimony presented to Congress demonstrated congressional knowledge that most forms of electronic bugging required covert entries to install surveillance devices. A contrary holding, according to the Court, would contravene Title III's purpose of providing new investigatory methods to curtail organized crime.