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An Examination Of The Justification Of

An Examination of the Justification of

Warrantless Tapping

Miguel Kristian Martinez

College of the Canyons

Majid Mosleh, Instructor


Warrantless tapping denotes to the use of an eavesdropping device to a telephone line to secretly monitor a conversation without the use of a warrant. Due to the advancement of technology, this may also apply to personal data that warrantless tapping may invade. With the increased use of social media platforms, personal devices, and communication services; paranoia escalates as rumblings of government eavesdropping emerges. The fourth amendment protects citizens from un-reasonable searches and seizures. The practice of warrantless tapping raises an ethical dilemma that conveys dispute on the issue. Without a doubt, this process could detect and identify hostile events and prevent possible catastrophes; but at the cost of invading personal privacy. With the increased development, expansion, and accessibility of technology, along with the rise in domestic terrorist attacks, pressure increases as the debate of warrantless tapping results to government action. In this examination, a background of the issue will be identified as well as an analysis of each side of the debate.

Historic Context

Many of the disputes regarding the legality of wiretapping originate from the Fourth Amendment to the Constitution, which states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The amendment was passed in order to protect American citizens from unlawful searches as a response to searches and seizures that had occurred under British rule. However, it is not immediately clear how the amendment applies to wiretapping, since no physical search or seizure occurs during electronic surveillance.

The history of wiretapping dates back as earliest as the emergence of the telephone. Wiretapping is much more different then than it is now due to the technology. From the time when the telephone was invented, private detectives were hired by businesses to eavesdrop on each other’s wires. State legislatures eventually identified the meddling nature of this practice and prohibited it. In November 1924, Seattle bootlegger Roy Olmstead was arrested for violating the Volstead Act and convicted with evidence that the government had gathered through a wiretap in is home. Olmstead argued that the wiretapping represented an invasion of his privacy, but the Supreme Court upheld the conviction, expressing that wiretap was a form of eavesdropping and was not an invasion of privacy. “The court, in a 5-4 decision, held that because the government had placed its wiretaps in the street by Olmstead’s house, the government had not trespassed on Olmstead’s property, and that the wiretaps were not therefore a ‘search’ under the Fourth Amendment” (Kaplan, Matteo, & Sillett, 2012). As a result, Olmstead served four years in prison.

In 1934, Congress passed the Federal Communications Act, which was the first law to regulate wiretapping. Section 605 states, "No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto."

Private Detective Harold Lipset was called before a Senate committee to testify in 1968, where he demonstrated the practicality and ease of wiretapping. He shocked the panel and public opinion by demonstrating how to covertly produce a hidden bug in a martini olive. Although the technology was impractical, public opinion was greatly educated as it became a pivotal point for debate on the future of federal privacy regulation. As a result of the presentation, a federal law was passed banning all wiretapping and recordings without a court order. Soon after, a man named Charles Katz used a public phone booth to illegally place bets from Los Angeles to Miami. This information was collected by the Federal Bureau of Investigation through electronic eavesdropping technology utilized outside the phone booth. Katz was convicted based on this collected recording of his conversation. He challenged the conviction and it made its way to the superior court, where the Court ruled 7-1 in favor of Katz. This eventually led to both the passage of the Omnibus Crime Control and Safe Streets Act of 1968. Title III of the act represented a revision of existing federal laws, making wiretapping without consent illegal, except for law enforcement agencies working under a court order.

The right to privacy is an issue that has rapidly grown since the Watergate break-in. Paranoia of government accessing and gathering data from the lives of United States citizens. While Watergate-related invasions of privacy—wiretapping and bugging of opponents, the use of government files to discredit “enemies,” misuse of intelligence agencies, and breaking and entering—have received most of the attention, other aspects of the problem are also being looked at more carefully today. Scores of books and articles on the subject are being published, private and official commissions are studying ways of protecting individual privacy and Congress is considering more than 140 bills relating to privacy in one way or another.

On May 18, 1977, Senator Ted Kennedy introduced the Foreign Intelligence Surveillance Act (FISA), signed by President Jimmy a year later. The Foreign Intelligence Surveillance Act was passed in response to reports of widespread spying by the government. The law required the government to obtain a warrant from a special court in order to eavesdrop for the sake of collecting intelligence on the activities of foreign powers. The court provided the government one year after the wiretapping had taken place to obtain the court order, which would retroactively cover the wiretapping done during the previous year.

The wake of the 21th century saw the progression of the debate heat up as terrorist attacks and the innovation in personal technology make it difficult to create a fair domestic policy on wiretapping. In September 11, 2001, the United States was attacked by Islamic terrorist group al-Qaeda. In response to the attack, the USA Patriot Act was passed to unite and strengthen America by increasing the powers of law enforcement agencies as well as revise surveillance laws. During the presidency of George W. Bush, his administration had authorized the use of warrantless wiretapping in order to intercept communications by terrorists. The nature of data interception has migrated its focus on the internet, as the use of internet-based communication. The user growth of the internet has exponentially increased over the last decade


The current debate over this matter comprehends two sides: Americans who support the government invading online privacy in the name of national security and other Americans who believe that unlawful wiretapping threatens the privacy of American people and violates the fourth amendment. It seems that both sides have their own respective justification for their interpretation on the discussion. Its narrative has greatly changed since the early use of telephone wiretapping; therefore, it is almost a completely different issue with more people migrating from telephones to the internet telecommunications. While it still relates to public privacy, the question of whether or not the government should break the fourth amendment in order to protect its citizens.

Those who support government wiretapping see it as a tool to hunt down potential criminals. In 1997, the FBI employed an outside contractor to develop Carnivore, a customizable packet sniffer which could filter packets to pick up only what the specific surveillance target was communicating. While the FBI didn’t really release many details, it is generally agreed upon that an individual Carnivore system was composed of a Microsoft Windows workstation with packet sniffing software and a removal disk drive. Each Carnivore system had to be installed at the Internet Service Provider of the surveillance target so that it could home in on the target’s Internet communications. Not only did Carnivore record the packets in question, it would reconstruct emails and Web pages so that the FBI could see exactly what the target was seeing. Carnivore was met with some controversy, as common people believed that all their Internet traffic was being monitored. According to the official reports, Carnivore was only used after securing warrants and only recorded packets related to the surveillance target. Traffic unrelated to the surveillance target would just be ignored. In 2005, the FBI announced that they had discontinued use of the Carnivore system and its derivatives. Instead, they opted to use more up-to-date systems developed by the private sector. Official reports indicated that Carnivore was only used 13 times during its entire lifespan.

On the other side, opponents argue that wiretapping is a basic invasion of the lives of United States citizens. It breaks According to Apple CEO Tim Cook in response to the FBI demanding Apple to unlock a mass shooter’s phone. A letter to the public states:

“Rather than asking for legislative action through Congress, the FBI is proposing an unprecedented use of the All Writs Act of 1789 to justify an expansion of its authority. The government would have us remove security features and add new capabilities to the operating system, allowing a passcode to be input electronically. This would make it easier to unlock an iPhone by “brute force,” trying thousands or millions of combinations with the speed of a modern computer. The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.” (Apple)

In this passage of Apple’s statement, there is an emphasis on the notions of power and privacy. Apple was completely against creating the software to unlock the shooter’s phone through brute force because it would develop a backdoor for every iPhone. It would essentially break down Apple’s security software in their phones, allowing surveillance on any data on any iPhone. This is a very Conclusion