Electronic Surveillance

ELECTRONIC SURVEILLANCE

ELECTRONIC SURVEILLANCE. Court-approved electronic surveillance has become an increasingly important, and controversial, law enforcement tool to fight crime. Its origins date to the simple wiretapping procedure of connecting a listening device to the circuit of a handset telephone, begun in the late 1920s. However, advances in communications during the last decades of the twentieth century have challenged surveillance techniques to become more sophisticated, and in the eyes of some, too intrusive.

Law enforcement's court-approved access to communication, including wiretaps, pen registers, and traps and traces, are neither technically nor legally simple. Intercepting communication information has become further complicated by the changing concept of the "telephone number," which used to represent a physical location. However, technology now often uses such a number merely as the beginning of a communication link that soon loses its identity with an individual as the call becomes routed to others. The shift from analog to digital data, the use of microwave and satellite carriers in the 1960s, and computer-based switching have all changed the nature of surveillance substantially. Additionally, computerized data transfer and mobile communications have made surveillance more costly.

Legally, the Fourth Amendment of the Constitution protects citizens against unlawful, unreasonable search and seizure by the government. Governmental intrusion into the private lives of Americans must fit guidelines outlined by the Constitution and interpreted by the U.S. Supreme Court. But technological changes in communication challenge both the court system and the U.S. Congress to seek a reasonable balance between personal rights and the public interest. In 1928, the Supreme Court ruled in Olmstead v. the United States that wiretapping did not violate the Fourth Amendment. Congress responded in 1934 with the Communication Act, which established wiretap statutes to govern the procedure. By 1968, legal interpretations of the Communication Act had become so complex that Congress again clarified guidelines regulating federal wiretap surveillance under Title III of the Omnibus Crime Control and Safe Streets Act. By the end of the twentieth century, thirty-seven states had enacted statutes that parallel the Title III guidelines. The provisions of the 1968 act continue to govern the procedures for legal authority to intercept wire, oral, and electronic communication.

To obtain a court order for surveillance requires evidence of probable cause as well as demonstration that normal investigative techniques cannot yield the same results. Legal permission is normally limited to thirty days and must also record surveillance in such a way that it cannot be altered or edited. Interception has the additional responsibility to minimize data gathering that may not be relevant to investigations.

In a digital age, gathering such information has become costly, and in 1994 Congress passed the Communications Assistance for Law Enforcement Act authorizing $500 million over fiscal years 1995–1998 to upgrade interception technologies. The Act also required service providers to build surveillance needs into the design of their equipment and systems.

In part because of the enhanced sophistication of modern electronic surveillance, the National Security Agency (NSA) and other law enforcement organizations came under increasing criticism in the 1990s for unconstitutional spying on its citizens. In April 2000, public sentiment compelled NSA Director Lt. Gen. Michael V. Hayden to appear before the House of Representatives Permanent Select Committee on Intelligence to defend secret electronic intelligence gathering in the interests of national security. American rights organizations such as the American Civil Liberties Union vigorously opposed newly developed Internet spy technologies like "Carnivore," which gave the FBI the ability to intercept and analyze large amounts of e-mail from both suspects and non-suspects alike.

A political shift to support an increase in domestic surveillance began after the 19 April 1995 bombing in Oklahoma City. Following the terrorist attacks on New York City and the Pentagon on 11 September 2001, Congress strengthened federal authority to conduct electronic surveillance coincident with the FBI's 2002 mandate to focus on terrorism.

BIBLIOGRAPHY

Colbridge, Thomas D. "Electronic Surveillance: A Matter of Necessity." The FBI Law Enforcement Bulletin (1 February 2000): 1–10.

Lyon, David, and Elia Zureik, ed. Computers, Surveillance, and Privacy. Minneapolis: University of Minnesota Press: 1996.

Ray, Diana. "Big Brother Is Watching You (Electronic Surveillance)." Insight on the News (23 July 2001): 1–3.

Mark Todd