Court Lets Police Eavesdrop on Cordless Phones
Government agents may eavesdrop on a person’s conversations via a cordless telephone without violating the constitutional right to privacy and without a judge’s permission, according to a ruling that the Supreme Court let stand Monday.
The decision, the first from the high court on cordless phones, could affect the nearly one in four American households that use mobile receivers to transmit calls by radio across a residence to the primary, wired telephone. A magistrate’s permission is required before authorities may eavesdrop on a wired phone.
Car phones are subject to the same restrictions as wired phones. Congress in the Electronic Communications Privacy Act of 1986 said that conversations on cellular car phones, which are technologically different from cordless phones, are protected from interception.
But cordless phones were not covered by the law. In August, the U.S. 8th Circuit Court of Appeals, based in St. Louis, said that, because users of cordless phones can often overhear others’ conversations on such phones, they should realize that their phone transmissions can be intercepted as far as several hundred yards away. Therefore, the court said, these calls are not private and may be recorded by the police.
Without comment or explanation, the justices denied an appeal of that ruling Monday. Although this is not a direct ruling on the issue, the high court’s action will undoubtedly be used as a precedent in cases across the nation.
“This deprives millions of Americans (of) the privacy rights they think they have when they are talking at home on a cordless phone,” said Stephen Shapiro, an American Civil Liberties Union lawyer who filed the appeal.
The market for cordless phones boomed in the mid-1980s. Last year, an estimated 9.2 million such phones were sold nationwide. Sales are projected at more than 10 million this year.
Shapiro noted that Monday’s decision takes away also the privacy protection of callers using a regular phone who, unknowingly, speak with someone using a cordless phone.
“Maybe this will galvanize Congress to do something about this,” he said.
The high court action marks a sharp break from previous rulings on telephones and wiretapping. In three rulings in the late 1960s, the court decreed that phone conversations, even on party lines or from public phone booths, are private and off-limits to government snooping. Under those rulings, police may not wiretap a phone without a search warrant from a magistrate. Policemen must show that they have “probable cause” to believe a crime is being committed before they can get a warrant.
The Fourth Amendment forbids “unreasonable searches and seizures” of a person, his home or personal effects. Until the 1960s, the amendment was interpreted as protecting privacy at home but not elsewhere. But, as the technology of wiretapping and snooping improved, the Supreme Court expanded the reach of the Fourth Amendment.
In the key 1967 wiretapping decision, the court said that persons talking on a telephone have a “reasonable expectation of privacy” in their conversations. The decision overturned the conviction of a California bookmaker who was apprehended based on an FBI wiretap of his conversations from a public telephone booth.
The decision was considered a constitutional landmark because the court said that the right to privacy in the Fourth Amendment depended on the person’s expectation of privacy, not where a conversation took place.
“No less than an individual in a business office, in a friend’s apartment or in a taxicab, a person in a phone booth may rely upon the protection of the Fourth Amendment,” Justice Potter Stewart said for a nearly unanimous court. “One who occupies it, shuts the door behind him and pays the toll . . . is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.”
In the latest case, however, the federal courts took an entirely different tack. Because cordless phone transmissions can be picked up outside the home, the caller has no “reasonable expectation” that his living room conversation will be entirely private.
The case began when a couple living near Davenport, Iowa, realized that they could hear the phone conversations of their neighbors, the Tylers, on their own phone. The couple, Rich and Sandra Berodt, heard what they thought was a conversation about narcotics dealing and reported it to the sheriff’s office. Without getting a search warrant, sheriff’s investigators asked the Berodts to tape the phone conversations of the Tylers.
Although it turned out that Scott Tyler was not involved in narcotics, he was involved in a fraudulent business deal. After an independent police investigation, Tyler was convicted of business fraud. The recorded conversations did not figure in the conviction because a state judge said they could not be used at the trial.
The Tyler family then filed a federal lawsuit against the Berodts and the sheriff’s office, seeking damages for a violation of their constitutional rights. But both a federal judge in Iowa and the 8th Circuit Court said that the surreptitious taping by the sheriff’s office did not violate the Fourth Amendment. The case was Tyler vs. Berodt, 89-691.
BACKGROUND
The cordless phone has become a normal feature in nearly one out of four American homes. The handset transmits a radio signal, enabling the user to have a phone conversation hundreds of feet away from the base unit, which functions as a normal telephone. The market for such telephones boomed in the mid-1980s, with an estimated 9.2 million sold nationwide last year. Sales are projected at more than 10 million this year.
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