It's a Matter of Privacy

June 6, 2006

Final Paper

"A Matter of Privacy"

It would seem that privacy is sometime no longer obtainable in a world that is so technologically dependant. A click of a button relieves much more than some people are willing to give up. However, human rights require that government not intrude on the lives of the citizens. Since the 20th century governments have abused the power, and judicial branches have stepped in to intervene on the citizens behalf. For America and European nations although that paths travel may different the destination is the same.

The increase of surveillance is a direct reaction from of technological advancements that have drawn more and more valuable traffic onto telecommunications channels. Over the past century communication levels (e.g., telegraph, telephone, pen registers, and metering amongst others) have expanded due to technological changes, especially since the 1960s. In the twentieth century the frequency of communications and interactions has increased as communications technology has advanced, with ever more trivial messages being transmitted and thus potentially intercepted.

The ability intercept those increasingly frequent communications (e.g., wiretaps) means that spying on communication channels becomes increasingly rewarding for governments, businesses and criminals. Inherently the need for technological advancement also brought the needs for laws to protect citizens against the over-imposing government. Both British and American law reflect the need of the nation to limit both citizen and government interference, however considering that the governments are different it is quite natural that the laws on surveillance will be different.

The invention of the telegraph and the subsequent telephone brought new methods of communication in society globally. Seemingly because there communication were conducted in a private place (i.e. home), people tended to assume that their communication had a certain level of privacy, which in most case during the earlier stages did not exist. Almost immediately following the advent of the telephone, government official and private parties found was to "tap" into the phone lines. For year wiretapping took place with ease, largely due to the fact that there were no laws prohibiting or restricting such action.

It was not until the late 1920s when privacy of communications would become a public issue. Across the nation different local police departments followed vastly different standards, some using wiretapping regularly and some seeing it as a clear violation. By 1927, more than twenty-five states made wiretapping a crime but wiretapping was prevalent at both the state and federal levels. The constitutionality of wiretapping was first tested in the Olmstead v. United States, 277 US 438 (1928). Based on telephone wiretaps presented by federal agents, Roy Olmstead, a bootlegger in the state of Washington, was convicted of violating federal Prohibition laws. In the trial courts the federal judge admitted the wiretap evidence even though Washington state law prohibited wiretapping. Olmstead appealed his conviction arguing that the wiretap evidence should not have been admitted, however the appellate court upheld the decision. The appeals court ruled that because there was no trespassing or seizing of physical property, wiretapping did not violate either the Fourth or Fifth Amendment. The Supreme Court also upheld the decision rendered by the appeals court. In the opinion written by Chief Justice Taft, the Supreme Court found it to be the job of Congress to protect telephone privacy by stating,

"the policy of protecting the secrecy of telephone messages by making them, when intercepted, inadmissible as evidence in federal criminal trials may be adopted by Congress through legislation, but it is not for the courts to adopt it by attributing an enlarged and unusual meaning to the Fourth Amendment."

In an astonishing dissent Justice Brandeis argued prophetically

"subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet."

Basically stating was Katz would soon to state as well.

The concept of wiretapping as searches that were not protected under the Constitution led the way for widespread wiretapping. There was no consistent wiretap policy among the federal agencies or between the states. Wiretapping was used as means of political and social control, beyond the limits of proper law enforcement and occurred unrestrained due to public lack of knowledge. Some agency heads believed that law enforcement interests justified privacy invasions imposed by wiretapping while others did not. Although bills were introduced in Congress to ban and regulate wiretapping, wiretapping practices continued without any change until the development of the current wiretapping policy in 1967 through the courts when the Olmstead case was overturned in Katz v. United States, 389 US 347 (1967).

In Katz, FBI agents wired a public telephone booth which Katz used and through this, they obtained evidence against Katz convicting him on transmitting wagering information by telephone. No actual trespassing of the telephone booth took place during the phone tapping. Ultimately, the Supreme Court overturned the Olmstead decision and ruled in favor of Katz. They held that the telephone bug violated privacy and constituted a search and seizure that was protected under the Fourth Amendment. In deciding this case the Court apparently "rewrote" (as argued by Justice Black in his dissent) the constitution with a new interpretation providing protection against illegal of the individual and not simply on physical aspects such as property.

Title III of the Telecommunications Act is legislation enacted by congress 1968 that specifies crimes for which a court order could be requested and instituted procedural requirements for law enforcement, including obtaining a court order approved by a high-ranking prosecutor; proving that probable cause existed for believing that a crime had been committed, that the target of the surveillance was involved, and that evidence would be obtained through the surveillance; certifying that other investigative procedures would be ineffective; and describing how the surveillance effort would be minimized. If an application met these requirements, a judge could approve the court order for thirty days with a possible extension. At the close of