July 25, 2012

In February 1928 the Supreme Court heard the case of Roy Olmstead, whose conviction on bootlegging charges relied on evidence obtained by tapping his phones. Olmstead contended that this violated the fourth amendment, which protects against “unreasonable searches and seizures”. The court disagreed: it held that the fourth amendment protected Olmstead’s person, home and office, but that telephone wires “are not part of his house or office any more than the highways along which they are stretched.”

As telephones became more common, the Olmstead standard grew more untenable. It ended in 1967, when the court decided that fourth amendment protections extend anywhere a person has “a reasonable expectation of privacy”. If police wanted to wiretap a phone, they now needed a warrant, just as they would if they wanted to search a person’s home.

But the warrant requirement applies only to the actual conversation, not to the numbers dialled from a phone. Tracking these numbers requires a “pen/trap” tap (pen registers track the numbers called out from a phone, trap-and-trace devices record the numbers calling in). In 2001 the Patriot Act allowed pen/traps to be served on internet-service providers (ISPs) as well, where they reveal e-mail senders and recipients, the size of each e-mail sent and received, the IP address with which a computer communicates and the sites visited while browsing the web. The standards for getting a pen/trap approved are far lower than for getting a wiretap. The Electronic Communications Privacy Act (ECPA), which was passed in 1986 and remains the main law governing access to electronic communication, requires police only to certify to a court that the information is relevant to an investigation. For a wiretap, police must show both probable cause and that “normal investigative procedures have been tried and failed.”

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