WIRETAP LAW: SHADES OF TROY

When the citizens of Troy bought the Horse into their city, a seeming tribute to Trojan valor left behind by the departing Greek armies, they were unaware the Horse was in fact the plot of the crafty Odysseus. Thus, Troy fell.

Attorney General Edwin Meese, a latter day Odysseus, recently has given the nation a new federal wiretap law, the Electronic Communications Privacy Act of 1986. If we are to avoid Troy's fate, those who stand guard over our privacy protections had better stay alert.The new law expands statutory privacy protections in certain areas. It codifies privacy rights for computer and other digitized transmissions such as electronic mail and extends its coverage beyond the common-carrier services of telephone companies to include private providers of communications services.

It establishes procedures governing the installation of pen registers (which record dialing information from telephones) and tracking devices (which monitor the location of suspects). The act also creates specific penalties for the unauthorized interception of cellular telephone conversations.

Unfortunately, the law threatens to take away more than it gives. It expands significantly the list of offenses for which law enforcement authorities may obtain a surveillance order. It increases the number of Justice Department officials who can seek permission to eavesdrop and allows the FBI to use "independent contractors" to do the actual snooping.

It significantly expands the "good faith" defenses available to policemen who overstep the law's boundaries. It expressly authorizes the interception of cordless telephone conversations and certain pager transmissions without any court review. It waters down the definition of what constitutes a protected communication under the law and establishes less- stringent standards for obtaining a court order to gain access to electronic communications and stored data.

The act will make an already complicated law virtually incomprehensible in terms of its application to new communications technologies.

The potential infirmities of the new law can be fully appreciated only through understanding the reasons for the failure of Title III of the 1968 law.

Title III established criminal and civil penalties for the unauthorized interception of certain types of communications. It prohibited eavesdropping by private parties and allowed law enforcement surveillance only upon a showing to a court that there was probable cause to believe a wiretap would uncover evidence of criminal activity.

Recognizing the inherently intrusive nature of electronic surveillance, Congress limited the offenses for which a warrant could be obtained to a specific list of serious federal crimes and stipulated that only top Justice Department officials could authorize a warrant request. Title III included various additional safeguards limiting the scope and duration of eavesdropping.

The act was a product of congressional concern over the surveillance practices of the time. As such, it was influenced heavily by two 1967 Supreme Court decisions: Katz vs. United States in which the Court overturned a 39- year precedent and held that the Fourth Amendment proscription against unreasonable searches applies to government interception of telephone conversations, and Berger vs. New York, in which the Court held that the use of electronic equipment to overhear face-to-face conversations constitutes a search under the Fourth Amendment.

The terminology of Title III grew out of these cases, which ultimately limited the law's ability to cover newer communications technologies. Generally, the law prohibited the unauthorized interception of wire or oral communications. Its failure to adapt to new technologies is attributable primarily to its definitions of these three key terms.

A single word inserted into the previous law's definition of interception resulted in the wholesale exclusion of digital or computer communications from its coverage. Title III defined "intercept" as the "aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device."

Although the legislative history failed to illuminate what Congress meant by the term "aural" acquisition, it made clear that "other forms of surveillance are not within the proposed legislation."

The principal author of Title III, G. Robert Blakey, a law professor at Notre Dame, has since stated that the definition of "intercept" was chosen specifically to exclude coverage of machine-based data.

Courts began to follow the stated (if unofficial) intent of Title III's drafter. They limited the law's scope to interceptions of conversations that could be heard - and understood - by the human ear. Thus, interception of electronic tones or pulses was not considered to be an "aural acquisition" of communications under the law.

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