Why the Secret Listeners Should Be Obeying All the Rules

Thirty-three years ago the highest court in the land ruled that the privacy of telephone conversations is protected by the same provision of the Constitution that protects an individual’s person, house, papers and effects from intrusion by the government. The next year, after extensive public hearings, Congress passed laws that controlled wiretapping. It was recognized that the “search” involved in telephonic interceptions invades the privacy not only of the person named in the warrant but also of anyone called from that line and anyone who calls into it. The law limited the use of wiretaps to those situations clearly calling for this extraordinary investigative device.

Congress required that before any state may allow its law enforcement officers to use wiretaps, that state must pass its own law, which provides at least the same protections as the federal law. It was not until 1989 that California passed such a law. Our state Legislature restricted the use of wiretaps to the investigation of serious felonies, such as murder, kidnapping and the trafficking of large amounts of illegal drugs. Wiretaps are not allowed unless the application to the court for authorization sets forth what routine investigative techniques have been tried, and why those procedures have failed, are useless or are too dangerous. In other words, a wiretap is to be “an extraordinary investigative tool of last resort.”

Wiretap warrants differ from “regular” search warrants in other very significant ways. Any peace officer may apply to any judge for a warrant to search someone’s house, and in the usual case, no prosecuting attorney is involved. For a wiretap, the law requires that an application must be made by the district attorney (not his deputies), in writing and upon his personal oath. The purpose behind this requirement is to centralize responsibility in a public official subject to the electoral process, to avoid divergent practices from developing and to ensure that if abuses do occur, the lines of responsibility lead to an identifiable person.

The Legislature presumed that the district attorney’s service to the general public and devotion to the rule of law would serve as an additional protection against unwarranted intrusion into the public’s right to privacy. Further, the law also limits the authority to issue wiretap warrants to the presiding judge of the Superior Court or one other designated judge.

The California law requires that after a wiretap expires, all persons named in the application and all persons whose conversations have been intercepted are to be given notice of that fact, regardless of whether criminal charges are ever filed. The local courts must also provide reports to the California attorney general, the federal government, the state Legislature and the federal courts.

These are extraordinary requirements placed upon the police, the courts and the district attorney, and were enacted to ensure that if in the pursuit of important law enforcement interests our privacy must be invaded, we at least know that it has happened. They are part of the guarantees that the public’s legislators insisted on when they knowingly decided to authorize intrusion into innocent people’s lives. They are not mere technicalities that benefit only the lawbreaker, but instead constitute a method of avoiding a police state.

These extraordinary measures were designed to create a “check and balance” between the sometimes overzealous police officer intent on purging society of the scourge of drugs and the other parts of the judicial system that control the authorization process. It works if all the people involved in the process follow the law. The balance falls apart if the details of the system’s safeguards are ignored.

And who suffers? Not only the suspected criminal who is the target of the investigation, but all the law-abiding citizens whose privacy is invaded, whose personal telephone conversations are recorded. The law-abiding citizen chatting with his girlfriend from his cell phone; the citizen placing an order with her stockbroker, ordering a prescription at her pharmacy, having an argument with her spouse or calling a psychologist to arrange for marital counseling; the news reporter interviewing a confidential source for a story; the attorney speaking with a client regarding his case: All of these, and the myriad other examples of discussions we presume are private, suffer.

If the law is followed, we law-abiding citizens can continue to feel comfortable in this electronic age. The district attorney and the courts have the duty to ensure that the checks and balances are vigorously enforced, so that the quality of life for the vast majority of us who are law-abiding does not suffer to satisfy the zeal of those of us who pursue the few who break the law.

In recent weeks we have seen how the law enforcers can morph into the lawbreakers. In the realm of wiretaps, the district attorney and the courts and the police must keep faith with the public trust.