Wiretapping and Eavesdropping

Americans appear to have a "love-hate" attitude toward governmental electronic surveillance and covert spying. On the one hand, an overwhelming majority of the population supports police efforts to identify and prosecute persons who commit serious and violent crimes. In many contexts, such as political corruption and organized crime cases, informants and wiretaps are critical crime-fighting tools for government investigators. On the other hand, Americans treasure their freedom and resist unsolicited governmental intrusion into their lives. Security and privacy are jeopardized when individuals learn that the government has recruited and planted informants in their lives to gather information. While many concede that informants and spies are essential for effective law enforcement, few cherish the thought that a coworker or girlfriend may actually be a police spy. Put simply, many Americans adopt the view that surreptitious electronic surveillance is fine, but "not in my backyard."

When these strong and sometimes conflicting attitudes toward covert surveillance are combined with a well-documented history of government overreaching, both at the federal and state levels by spying on its citizens, Americans are often surprised to learn that the Court has imposed few restraints on the government's authority to plant or send covert informants and spies into our lives. If one accepts the fundamental historical claim that the Fourth Amendment reflected the Framers' distrust of police power and was designed to limit the discretionary power of the police to invade one's home, it becomes paradoxical for the Court to allow police officials unchecked discretion to plant spies and informants into one's privacy.

Consider, for example, the result in Lewis v. United States, the least controversial of the Court's secret spy cases. Many see no constitutional harm where a covert agent enters a home to purchase narcotics from someone like Lewis. On the surface, Lewis does appear to be an easy case. But on further study, Lewis is troubling. First, the facts reveal a police entry of Lewis's home that was neither authorized by a judicial warrant nor an exigency. Normally, the absence of a warrant or an emergency would preclude police entry into a person's home. Second, the waiver theory utilized by the Lewis Court proves too much. Imagine that the police are strongly convinced that a house is filled with illegal weapons. Imagine further that the police also have solid evidence that the owner willingly sells the weapons to anyone who can produce sufficient cash. Can the police enter the premises without a warrant because the owner obviously does not use it as a home and thus, for constitutional purposes, has waived his Fourth Amendment rights by converting the building into an unlawful weapons storage facility? The legal answer is no. Despite the suspect's illegal conduct, there is no "waiver" of his Fourth Amendment rights. Therefore, the fact that Lewis sold drugs from his home should be irrelevant.

If one of the values protected by the Fourth Amendment is freedom from discretionary police intrusion of the home or office, that norm is doubly offended in cases like Hoffa because the target chosen for scrutiny by the police is unaware of the government's presence and monitoring of his private activities. The Court found Hoffa's privacy interests illegitimate because the Constitution does not protect "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." It is submitted here that this statement is specious because the informant in Hoffa was not a friend who subsequently decided to betray Jimmy Hoffa, but a government spy right from the start. More importantly, the Court's description of the constitutional interest at stake in Hoffa turns upside down the value system inherent in the Fourth Amendment. When positive proof that an individual has committed a crime exists in the traditional search and seizure context, the burden is still on the government to justify and to limit the intrusion.

In the secret spy cases, however, Fourth Amendment values are reversed. After Hoffa, the government need not first assemble objective evidence of wrongdoing to covertly invade the homes and offices of its citizens. After Hoffa, the government may bypass neutral judicial authorization for the intrusion sought by its undercover agents. After Hoffa, secret spying missions need not particularize the person, place, and nature of the conversations subject to surveillance and recording. Whatever the informant sees and hears, regardless of the nexus to criminal behavior, is information known to the police. After Hoffa, such wide-ranging surveillance is without time limit and need not be supervised by a judge.

The Court's assumption of risk analysis—utilized in On Lee, Lopez, and White–also poses constitutional problems. First, the Court does not and cannot reconcile risk theory with the origins of the Fourth Amendment. True, the use of secret informants has deep historical roots. Moreover, the Framers of the Constitution left no specific clues regarding their intent as to whether the Fourth Amendment would regulate or forbid secret informants. The Framers also said nothing about eavesdropping, but that omission did not justify leaving eavesdropping and its modern equivalent, wiretapping, to the whims of the police.

The Framers opposed governmental intrusions that permitted discretionary invasions of the home. In light of this history, is it fair to surmise that the Framers would have favored an interpretation of the Fourth Amendment that grants the police absolute authority to send informants and secret spies into a person's home? Or, is it more likely that the Framers, who despised general warrants because they allowed government agents to search and seize at will, would have also opposed giving those same agents absolute discretion to use secret informants to search and seize at will?

Even if the history of the Fourth Amendment is ignored, there are other flaws in the Court's risk theory. There is no substantive distinction between the modern Court's risk analysis and the Court's prior conclusion in Olmstead that an individual who uses the telephone intends to project his voice to those outside. Why is the former conclusion constitutionally reasonable but not the latter? There is no more empirical support for the modern Court's conclusion that citizens assume certain risks whenever they speak to a third party than there was for the now discredited assumption in Olmstead.

In 1971 the White Court insisted that wiretapping involves "no revelation to the Government by a party to the conversations with the defendant." This assertion is true, but the factual characterization of the mechanics of wiretapping neither justifies nor explains the Court's legal conclusion about the risks associated with informant spying. The White Court's risk theory is applicable in contexts beside informant spying. If people assume the risk that their companions are police agents, then why don't people also assume the risk that the government may be wiretapping their calls or reading their mail?

Americans assume the police lack the discretion to covertly monitor their telephone conversations or peruse their mail because the Court has interpreted the Constitution in a manner that requires the police to satisfy certain legal safeguards before such intrusions may occur. If the Fourth Amendment restrains the discretion of the police to wiretap or bug private conversations, it is not apparent why that same provision is inapplicable when the police monitor and record private conversation through the use of a secret informant deliberately positioned to hear those conversations. After all, a secret informant acts as a "human bug" for the government. If there is a constitutional difference between unrestrained wiretap surveillance and unrestrained informant spying, the Court has not yet identified the difference.

If the preceding critique is correct, the Court and Congress alike have erred in exempting informant spying from the constitutional limitations imposed on other forms of electronic surveillance. The use of informants should be regulated in a manner similar to the way in which Title III regulates wiretapping and electronic bugging. For example, the Fourth Amendment's probable cause rule should apply to informant spying the same way it applies to electronic surveillance. Further, a particularity requirement like the one in Title III would limit the unbridled and open-ended intrusions that often occur with informant spying.

Yet Title III, as interpreted by the Court, is not without its own drawbacks. The statute was initially enacted to prohibit most forms of electronic surveillance. In fact, all forms of wiretapping and electronic surveillance were prohibited unless specifically authorized by the statute. As the above discussion illustrates, however, the Court's Title III decisions have departed dramatically from this approach. Many of the safeguards of Title III have been undercut by the Court's failure to strictly enforce the statute.

It is an open question whether the current status of the law governing electronic surveillance will survive as new technological advances continue to emerge that threaten the privacy of individuals. Perhaps, as new methods of investigating crime are developed, the Supreme Court and Congress alike will be forced to clarify, revise, or replace the current legal framework that governs wiretapping and electronic eavesdropping.