Title

The Consent Problem in Wiretapping & Eavesdropping: Surreptitious Monitoring with the Consent of a Participant in a Conversation

Document Type

Article

Publication Date

1968

Abstract

The extent to which American society should permit wiretapping and electronic eavesdropping has been considered by judges, legislators and scholars for many years, although this consideration has yet to result in legal rules that respond rationally and consistently to the conflicting demands of privacy and effective law enforcement. Constitutional analysis has, until very recently, relied on concepts like "physical invasion of a constitutionally protected area," producing distinctions with little relation to underlying social values ;' statutory restrictions on wiretapping have been much more severe than those imposed on eavesdropping, though the latter, particularly in light of the rapidly developing technology, poses a more serious threat to privacy ;2 federal and state provisions on wiretapping have been in direct conflict, and the commission of federal crimes in state courts has been judicially sanctioned;3 the notion that divulgence is a necessary element of the federal crime has opened the door to the extensive use of wiretapping both in law enforcement and for private purposes,4 despite an apparently unqualified prohibition ;5 unclearness about what the law is, and the unsympathetic view of most law enforcement officials toward a prohibition of official wiretapping, have resulted in negligible enforcement of federal and state laws. These defects in the law, though intractable, have been carefully analyzed and widely discussed. Whatever one's view of the results in Berger v. New York7 and Katz v. United States,8 the opinions do attempt to come to terms with the competing social interests, and an extensive overhaul of relevant constitutional principles is the result. The inadequacy of existing federal statutory law has been widely acknowledged, although change has thus far been blocked by disagreement between those who favor limited official eavesdropping and those who favor an absolute ban.

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