Chapter 1

Summary

In the last 20 years, there has been a virtual revolution in the technology relevant to electronic surveillance. Advances in electronics, semiconductors, computers, imaging, data bases, and related technologies have greatly increased the technical options for surveillance activities. Closed circuit television, electronic beepers and sensors, and advanced pen registers are being used to monitor many aspects of individual behavior. Additionally, new electronic technologies in use by individuals, such as cordless phones, electronic mail, and pagers, can be easily monitored for investigative, competitive, or personal reasons.

The existing statutory framework and judicial interpretations thereof do not adequately cover new electronic surveillance applications. The fourth amendment-which protects "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures"—was written at a time when people conducted their affairs in a simple, direct, and personalized fashion. Telephones, credit cards, computers, and cameras did not exist. Although the principle of the fourth amendment is timeless, its application has not kept abreast of current technologies.

The major public law addressing electronic surveillance is Title III of the Omnibus Crime Control and Safe Streets Act of 1968 which was designed to protect the privacy of wire and oral communications. At the time Congress passed this act, electronic surveillance was limited primarily to simple telephone taps and concealed microphones (bugs). Since then, the basic communications infrastructure in the United States has been in rapid technological change. For example, satellite communication systems and digital switching and transmission technology are becoming pervasive, along with other easily intercepted technical applications such as cellular mobile radio, cordless

telephones, electronic mail, computer conferencing, and electronic bulletin boards. Continued advances in computer-communications technology such as the Integrated Services Digital Network (ISDN), now close to implementation, are likely to present additional new opportunities for electronic surveillance.'

The law has not kept pace with these technological changes. The courts have, on several occasions, asked Congress to give guidance. Most recently, U.S. Circuit Court Judge Richard Posner, in a case involving the use of video surveillance in a law enforcement investigation, said:

we would think it a very good thing if Congress responded to the issues discussed in this opinion by amending Title III to bring television surveillance within its scope... judges are not authorized to amend statutes even to bring them up to date.

In legislating the appropriate uses of electronic surveillance, Congress attempts to strike a balance between civil liberties-especially those embodied in the first, fourth, and fifth amendments to the U.S. Constitution-and the needs of domestic law enforcement and investigative authorities for electronic surveillance in fighting crime, particularly white-collar and organized crime, and generally for drug, gambling, and racketeering investigations.2

Law enforcement and investigative agencies, at least at the Federal level, are making significant use of electronic surveillance techniques and are planning to use many new techniques. Based on a review of available reports

ISDN permits the transmission of voice, video, and data signals as needed over a common multi-purpose communications network.

'Note: This study did not review technology or policy issues concerning foreign intelligence and counterintelligence appli cations of electronic surveillance.