Too Many Ways to Eavesdrop

The Fourth Amendment of the United States Constitution requires the government to obtain a warrant before conducting a search. But it was not until 1967 that the Supreme Court ruled (in Katz vs. United States) that the Fourth Amendment required the police to get a warrant before wiretapping a telephone conversation. The following year, Congress enacted legislation authorizing wiretaps only when a warrant has been issued by a neutral magistrate. As a result, telephone conversations gained the protections of written mail.

In the 18 years since, new technologies have revolutionized the way information is sent. The 1968 act specifically protected voice communication by wire or in part by wire over a common carrier. In the electronic age, information is transmitted by other means. There is data communication, which is voiceless. There is communication by radio and by microwave. There are cellular phones. The regulated telephone industry has given way to competition. There are now many carriers, some of them private.

These changes are becoming more widespread and more profound all the time. So the law governing interception of private communication needs to be updated. Computer communication, including electronic mail and messaging, should be as secure from unwarranted searches as telephone calls and letters are.

That is the purpose of the Electronic Communication Privacy Act, which was introduced by Senator Patrick Leahy (D-Vt.) and which is now making its way through the Senate. It is an important rewriting of the wiretapping law that brings it into line with the new technology.

The potential for abuse in this area is large. Investigatory agencies are showing increased interest in data communications. Congress ought to spell out the rules now and not wait for the Supreme Court to declare that data has the same Fourth Amendment protection as voice. After all, it took the Court nearly 40 years to come to that conclusion. In 1928, in Olmstead vs. United States, the Court had held that a wiretap wasn’t a search under the Fourth Amendment. In dissent, Justice Louis D. Brandeis declared that the Constitution “conferred as against the government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized men.”

Four decades later, the Court adopted Brandeis’ view and protected telephone conversations. Now it is time to protect the content of private communications regardless of the means or the technology of transmission.