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wiretapping

Contributor(s): Matthew Haughn

Wiretapping is the surreptitious electronic monitoring of telephone, telegraph, cellular, fax or Internet-based communications.

Wiretapping is achieved either through the placement of a monitoring device informally known as a bug on the wire in question or through built-in mechanisms in other communication technologies. Enforcement officials may tap into either for live monitoring or recording. Packet sniffers -- programs used to capture data being transmitted on a network – are a commonly-used modern-day wiretapping tool. A variety of other tools, such as wiretap Trojans, are used for different applications. 

The history of wiretapping:
Wiretapping laws have always had difficulty in balancing privacy rights of individuals with the concerns of state and law enforcement. While wiretapping has existed since the days of the telegraph, the first recorded wiretapping by law enforcement was in the 1890s in New York City. In the 1910s, the New York State Department found that police had wiretapped entire hotels without warrant. The department claimed it did not violate Fourth Amendment rights, on the grounds that the amendment only covers tangible communications, such as mail, and that it only breached those rights where placing of taps involved trespassing. (That restriction was no block to enforcement, as officials could tap a telephone company’s switching station.)

The exemption of intangibles from the fourth amendment was upheld with the conviction of Roy Olmstead -- a former prohibition police officer turned multimillionaire bootlegger -- in 1925. However, the case had gone to the ninth circuit court of appeals. Justice Frank H. Rudkin strongly fought for the requirement of a warrant for wiretapping, claiming the distinction between written messages and telephone was tenuous and that letter, telephone and telegraph were equally sealed from the general public and deserved the same protections. Justice Louis Brandeis also contested the allowance of wiretaps without warrant, stating that the Fourth Amendment is not about defining physical space but the rights of the individual. Nevertheless, unwarranted wiretaps became admissible in 1928. The debate continued until 1968 when the Crime Control and Safe Streets Act mandated the requirement of probable cause and, for individual warrants, the requirement that the monitored party must be notified after the conclusion of the investigation.

Modern-day wiretapping:
The argument that new technologies are not covered by the law is often used to justify increased monitoring of private citizens. The Electronic Communications Privacy Act (ECPA), despite its name, loosened the requirements for non-voice based communications, and the Communications Assistance for Law Enforcement Act (CALEA) of 1994 allowed law enforcement to fine telcos $10,000 a day if the company’s networks are not built with wiretapping capabilities.

Concerns have been raised by the National Security Agency’s (NSA) monitoring of private citizen communications since it was revealed that they have been wiretapping on a broad scale without even a stated justification. Concerns are often dismissed because only metadata is collected, rather than the content of messages, but even that data can be extremely revealing. An increasing number of technological hardware and software systems are designed or adapted to include wiretapping capabilities, including IPv6, which is expected to expand the number of Internet-connected devices exponentially.

Susan Landau explains the risks of new wiretapping technologies:

See also: eavesdropping

 

This was last updated in May 2014

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