Wiretaps and electronic surveillance

Wiretaps and Electronic Surveillance

In the digital age, wiretaps and electronic surveillance have acquired the power to intercept personal and business communications of all types. Today, there are even sophisticated ways that electronic surveillance can be used to capture images directly from computer screens and the distinctive sounds made by dot-matrix printers in forming individual letters so that the information produced where the digital form meets the user in the real world can be deciphered by law enforcement officials or unauthorized users in ways that have never been possible in the past. While law enforcement officials are restricted in their legitimate use of these techniques, criminals are not constrained by such limitations and the use of wiretaps and other electronic surveillance techniques continues to expand as rapidly as the techniques that are intended foil these unauthorized users are developed. To develop a better understanding of how these methods evolved and how they are used today, this paper provides a review of the relevant peer-reviewed and scholarly literature to develop a brief history of wiretaps and electronic surveillance, the manner in which they have traditionally been used and current and future trends in the application of these technologies. A summary of the research and important findings are presented in the conclusion.

Review and Discussion

Anyone who has watched television in the past will likely recognize the terms "wiretap" and "electronic surveillance," but it is important to understand precisely what these terms mean. According to the legal definition provided by Black's Law Dictionary (1991), wiretapping is "a form of electronic or mechanical eavesdropping where, upon court order, law enforcement officials surreptiously listen to phone calls or other conversations or communications of persons. Federal and state statutes govern the circumstances and procedures under which wiretaps will be permitted" (p. 1601). Likewise, electronic surveillance is a form of eavesdropping that involves "installing or using outside a private place any device for hearing, recording, amplifying, or broadcasting sounds originating in such place, which sounds would not ordinarily be audible or comprehensible outside, without the consent of the person or persons entitled to privacy therein" (Black's, p. 511). Therefore, both wiretaps and electronic surveillance are forms of eavesdropping and while all wiretaps are a type of electronic surveillance by definition, there are other types of electronic surveillance that can be use by law enforcement officials in the United States if they possess the requisite authorization. It is also clear, though, that the use of these technologies is not restricted to their legitimate applications and a growing number of cases of corporate espionage are relying on these techniques as well.

Following the end of World War II, Americans were shocked to find that the Soviet Union had gained nuclear capabilities and the early 1950s were characterized by Senator Joseph McCarthy fueling the red scare fires in ways that scared the bejabbers out of ordinary American citizens (Henderson, 2002). As a result, "Foreign threats were targeted, but so [too] was a domestic fifth column of Americans who were viewed as potential threats to the national security. Not surprisingly, by the mid 1950s, J. Edgar Hoover [had] announced to the FBI that the Bureau was authorized to enter private property for the purpose of installing electronic surveillance devices, without regard for surreptitious entry and without prior authorization from the Attorney General" (Henderson, p. 179). A few years later, President Lyndon Johnson "modified the standard to permit warrantless wiretapping" when such actions were deemed necessary in the interests of national security (Henderson). On the surface, the Nixon administration claimed to take the same approach. President Richard Nixon took the expansive view a step further and conducted electronic surveillance to investigate news leaks within his own administration as well as perceived political enemies (Henderson).

The use of wiretaps and other electronic surveillance methods gained even more momentum during the Cold War when their use abroad and even domestically was rampant. According to Nelson (2002), the techniques included the "monitoring of employees in government and business, the surveillance of students and teachers in universities as well as secondary schools, the secret observation of public officials in local politics as well as in the State Department and the Pentagon, the wiretapping of private homes and electronic surveillance of public bathrooms" (p. 11). Following hard on the heels of the red threat of McCarthyism, the Cold War provided the perfect rationale to support the expanded use of wiretaps and electronic surveillance of American citizens of every ilk, as well as perceived threats to the national interest abroad. In this regard, Nelson notes that, "It was becoming evident that the Cold War had created a rationale for surveillance that was infinitely expandable. Defining the subversive as the 'enemy within' and the 'invisible threat' had an unanticipated rhetorical flexibility as has by now been well documented in Cold War histories. This formulation could describe the communist in the State Department or the homosexual on the job" (p. 11).

Nevertheless, the Fourth Amendment protections against unreasonable search and seizure do not stop at an individual's front door nor the entryway to a business and some types of wiretapping and electronic surveillance have been determined by the U.S. Supreme Court to be inappropriate and are disallowed. For example, in the cases of Berger v. New York (388 U.S. 41 and Katz v. United States (389 U.S. 347), both of which were decided in 1967, the Supreme Court held that any electronic surveillance that was lengthy, continuous, or excessively broad was deemed offensive (Berger) and held that wiretapping and other forms of electronic surveillance were subject to the privacy protections of the Fourth Amendment in Katz (Henderson, 2002). As described by Justice Harlan his concurring opinion, American citizens are entitled to Fourth Amendment protection if they exhibit "an actual (subjective) expectation of privacy ... that ... society [could] recognize as 'reasonable'" (quoted in Henderson at p. 180).

Despite these legal constraints on their use, the federal government has consistently sought to employ wiretapping and electronic surveillance techniques in innovative ways to fight crime and protect the national interests, issues that assumed new relevance and importance following the terrorist attacks of September 11, 2001. As Henderson (2002) emphasizes, "Ever since the invention of the wiretap made electronic surveillance a reality, the government has justified monitoring certain communications on the grounds that doing so is necessary to properly investigate crime and protect national security" (p. 179). In response to past abuses of these surveillance techniques, the U.S. Congress enacted the Electronic Communications Privacy Act of 1986 (ECPA) in an effort "to bring [the] new technologies ... into the statutory framework of the laws governing wiretaps" (quoted in Henderson at p. 180). The U.S. PATRIOT Act, though, has expanded the use of wiretaps and electronic surveillance of all types domestically and abroad, and many of the protections afforded by the ECPA have been eliminated as a result (Henderson).

Complicating matters for ordinary citizens who are not the target of government wiretaps or electronic surveillance are corporate spies and so-called social engineers who use a variety of methods that are used by the government as well as some that are not to gain unauthorized access to confidential or personal information. For example, a recent article by Gibbs (2009) emphasizes that, "An alarmingly wide range of objects can bounce secrets right off our screens and into an eavesdropper's camera. Spectacles work just fine, as do coffee cups, plastic bottles, metal jewelry -- even the eyeballs of the computer user. The mere act of view information can give it away" (p. 58). These side channels, as they are termed, to electronic surveillance use a variety of increasingly powerful electronic telescopes to first capture an image from any of these reflective sources and sophisticated software to subsequently decipher them (Gibbs). Electronic surveillance techniques that capture the sound of dot-matrix printers can also be used to discern what is being printed because each letter requires a different number of pins to form it and these can be deciphered to determine what was printed (Gibbs). Moreover, keyboards of all types and both LED and flat-screen computer monitors emit a sufficient amount of radio waves to allow their interception at fairly great distances and be interpreted by an unauthorized user (Gibbs). As this author emphasizes, "These attacks are difficult to defend against and are impossible to trace" (Gibbs, p. 59).