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5 Communications
Law enforcement agencies intercept communications to collect evidence of criminal activities. Intelligence agencies
intercept communications to collect information about the activities and plans of hostile governments and terrorists. The
Fourth Amendment to the U.S. Constitution and various laws put restraints on their activities in order to protect innocent
people and reduce the opportunity for abuses. In this section, we consider how changing technologies and government
policies affect the ability of law enforcement agencies to intercept the contents of communications an to obtain other
information about communications. We begin with background on wiretapping of telephone conversations and laws about
privacy of telephone and e-mail. Then we consider the Communications Assistance for Law Enforcement Act, which requires
that the technology used in communications system be designed or modified to ensure the ability of law enforceent
agencies to intercept communications. We look at secret government programs to intercept communication and collect
communications records as part of the efforts to combat terrorism. We conclude with a review of government policy about
use of encryption o protect communications.
Within ten years of the invention of the telephone, people (in and out of government) were wire tapping them. Before that,
people intercepted telegraph communications. Throughout the years when telephone connections were made by human
operators and most people hard party lines (one telephone line shared by several households), operators and nosy
neighbors sometimes listened in on telephone conversations.
Increased wealth and new technology eliminated party lines and human operators, but telephones were still
vulnerable to wiretapping. The legal status of wiretapping was debated throughout moth of the 20th-century. Federal and
state law enforcement agencies, business, private detectives, political candidates, and others widely used wiretapping. In
1928, the Supreme Court ruled that wiretapping by law enforcement agencies was not unconstitutional but that Congress
could ban it. In 1934, Congress passed the Communications Act. This law states that no person not authorized by the sender
could intercept and divulge a message; there is no exception for law enforcement agencies and local police ignored the
ruling and continued to wiretap regularly for decades, sometimes with the approval of Attorney General. In one-well
publicized case, the FBI monitored the telephone calls between the defendant and her attorneys during the trials. Evidence
obtained by illegal wiretapping is inadmissible in court, so the FBI kept a separate, secret file system. The FBI bugged and
wiretapped members of the Congress and the Supreme Court. Most states had their own laws prohibiting wiretapping.
Although there was publicity about extensive use of wiretapping by police, none was prosecuted. IN any cases, of course,
law enforcement agencies were wiretapping people suspected of crimes, but in other many cases they tapped people with
unconventional views, members of civil rights groups, and political opponents of powerful government officials.
A fierce debate on the wiretap issue continued in Congress, state legislatures, the courts, books, and the
news media. Congress repeatedly rejected proposals to allow wiretapping and electronic surveillance. In 1967 (in Katz v.
United States, discussed in Section 2.2.2), the Supreme Court ruled that intercepting telephone conversations without a
court order violated the Fourth Amendment to the U.S. Constitution. I 1968, as part of the Omnibus Crime Control and Safe
Streets Act, Congress explicitly allowed wiretapping and electronic surveillance by law enforcement agencies, with a court
order, for the first time in U.S. history. The main argument given for this change was the necessity to combat organized
crime. (The riots over race issues, the assassinations of President John F. Kennedy, Marthin Luther King Jr., and Robert
Kennedy , and the antiwar demonstrations in the fore years leading up to passage of the law probably contributed to its
The government needs a court order to (legally) intercept or record the content of a telephone call for a criminal
investigation. Law enforcement agents must justify the request, and the wiretap permission is granted for a limited time
period Government agents are permitted to determine the telephone numbers called from a particular telephone and to
determine the number from which a call was made with less court scrutiny and justification. Agents used a device called a
pen register to obtain numbers called. No communications companies routinely store this information (along with the
duration of calls, time of day, etc.). The term pen register still refers to the collection of information. A trap and trace logs
the numbers from which incoming calls originate.
Senator Sam Ervin commented in 1968, The mere fact of passing a law never resolves a controversy as
fierce as this one. He was right. Debate continued about whether the privacy protections in the Omnibus Crime Act were
strong enough to be constitutional. Supreme Court justices disagreed. Wiretapping by government and politicians that was
illegal or of questionable legality continued, most notably during the Vietnam War. Journalists and government employees
were victims of unconstitutional wiretaps during the Nixon administration. In 1998, Los Angeles police officers admitted
using wiretaps improperly in a large number of cases.
Most other countries have constitutional and legal protections for communications privacy, but police and
intelligence agencies in many countries routinely perform illegal monitoring of political opponents, human rights workers,
and journalists.

E-mail and other new communications

Old laws did not explicitly cover e-mail and cellphone conversations and interception was common when e-mail and
cellphones were new. Driving around Silicon Valley, eavesdropping on cell phone conversations was, reportedly, a popular
form of industrial spying in the 1980s. Snoops intercepted cell phone conversations of politicians and celebrities. The
electronic Communications Privacy Act of 1986 (ECPA), with amendments in 1994, extended the 1968 wiretapping
restrictions to electronic communication, including e-mail, cordless and cellular telephones, and paging devices. This was
significant step toward protecting privacy in cyberspace from private an =d governmental snooping. It requires that the
government get a court order to legally intercept email. The government argued that people give up their expectations of
privacy by allowing ISPs to store their e-mail on the IPSs computers.
Thus, the strict requirements of the Fourth Amendment would not apply. AN appeals court said in 2007 that the
governments argument was not convincing; people do have an expectation of privacy for e-mail stored in their subscriber
accounts. If upheld by the Supreme Court, the ruling will be a significant privacy protection for e-mail communications.
The USA PATRIOT Act reversed the direction of the ECPA. It loosened restrictions on government surveillance
and wiretapping activities. The PATRIOT Act allows law enforcement agents to use pen-register authority to get destination
and time information for e-mail. (It allows them to get a variety of other information about peoples e-mail and Internet use
from ISPs, including payment information such as credit-card numbers, without a court order.) For several years (possibly
continuing), the FBI operated a system to filter all the e-mail from a suspects ISP, examining the headers to find and copy a
suspects e-mail. The main concern with such a process is that the FBI can extract anyones e-mail (and other
communications), not just that of the suspect for whom the FBI has a court order. This FBI program illustrates how
technology requires reevaluation, clarification, and sometimes updating of existing laws. Does sifting through millions of e-
mail headers violate the wiretapping laws and the ECPA? Instead, should the ISP provide the suspects e-mail (and no one
elses) to the FBI when presented with a court order? Is collection of e-mail headers (not content) analogous to using pen
register to obtain telephone numbers called? An e-mail headers contain more information than a telephone number. It
contains a number line, which is more like content information. Should the FBI have access to that under the lower
standards for pen registers?

New communications technologies developed in the 1980s and 1990s made access to the contents of telephone calls more
difficult for law enforcement agencies than it was before. When people use toll-free long distance services or call
forwarding , the first telephone number entered the number law enforcement agencies can legally get fairly easily does
not give information about the actual recipient of the call. On the internet, e-mail, files, and internet telephone calls are
broken into pieces called packets that might travel, mingled with others, along different routes to the destination where
they are reassembled. (This is called packet