Electronic Surveillance in the United States

History of the Electronic Surveillance

The history of relevant warrantless electronic surveillance is short. Electronic surveillance, without regard to its purpose, was not held to violate the Fourth Amendment until “[a]fter the Supreme Court decided Katz [v. United States, 389 U.S. 347 (1967)] in 1967, and held the Fourth
Amendment applicable to electronic surveillance.” United States v. Ehrlichman, 546 F.2d 910, 936 n.7 (D.C. Cir. 1977).

But the memoranda from President’s Roosevelt, Truman and Johnson pre-dated Katz and authorized surveillance even in the United States. See United States v. United States District Court, 444 F .2d 651, 669-671 (6th Cir. 1971). Congress passed FISA in 1978, in part in response to an investigation that revealed abuse of this claimed inherent power in the years following Katz. Thus, the relevant historical period of unconstrained authority is really an 11 year period between 1967 and 1978.

Legal Rulings on Electronic Surveillance

Introduction to Electronic Surveillance

In 1928 the Supreme Court of the United States ruled in Olmstead v. United States that wiretapping of telephone lines could be employed without violating the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable search and seizure, provided the police did not enter the subject’s home or office. The Supreme Court reversed Olmstead in 1967, ruling in Katz v. United States that electronic communications are protected by the Fourth Amendment. In 1968 Congress enacted a statute that imposed comprehensive restrictions on wiretapping, including a requirement for a judicial warrant. See also Bill of Rights; Privacy.Although court-ordered wiretapping is now legal, wiretapping by the federal government without a court order is not. The courts have sustained the use of wiretapping to obtain foreign intelligence information, but in 1971 the Supreme Court held in two different cases that:

domestic electronic surveillance of radical political groups without a court order violated the Fourth Amendment, and
witnesses before a grand jury could refuse to answer questions arising out of information developed from unauthorized wiretaps.

In 1972 the Court rejected an argument put forward by the administration of President Richard M. Nixon that the president had the power to wiretap without court approval to protect national security. In an opinion written by Justice Lewis Powell, the Court declared: “History abundantly documents the tendency of Government-however benevolent and benign its motives-to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security.’ Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.” (1)

Electronic Surveillance Background

Resources

Notes and References

Information about Electronic Surveillance in the Encarta Online Encyclopedia

Electronic Surveillance

Electronic Surveillance in the United States

History of the Electronic Surveillance

Legal Rulings on Electronic Surveillance

Introduction to Electronic Surveillance

Electronic Surveillance Background

Resources

Notes and References

See Also

Further Reading (Books)

Further Reading (Articles)

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