Electronic surveillance refers to “the use of an electronic, mechanical, or other surveillance devices to acquire information, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.”1 Electronic surveillance involves the use of an electronic device to spy on a person with or without their knowledge. The main techniques of “electronic surveillance include audio recording, videotaping, and taking photographs.”2 State agencies, businesses, individuals, and homeowners in the United States use electronic surveillance for different purposes. Government officials use it for law enforcement purposes by gathering information or evidence to prosecute criminals.3 Businesses and homeowners use electronic surveillance to enhance security within their premises.
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For instance, ADT provides video surveillance services that enable homeowners to monitor the security situation in their homes (ADT). Despite its ability to enhance criminal investigations and security, the use of electronic surveillance continues to receive resistance from the public because it facilitates an intrusion of citizens’ privacy. This paper contributes to the debate on the legality of electronic surveillance by discussing the technologies used to implement it, the application of the Fourth Amendment to new electronic surveillance technologies, and the use of electronic surveillance among private individuals. Furthermore, the paper will argue against the return of Olmstead, which restricts the Fourth Amendment to physical inversion.4
Electronic Surveillance Technologies
Wiretapping is a technique used to monitor and collect information from telecommunication systems.5 Wiretapping involves the use of “electronic or electrical equipment to intercept the oral communications of non-consenting parties by a third party.”6 Wiretapping is mainly used by the government and law enforcement agencies to collect evidence against suspected criminals.7 In the United States, the use of wiretapping is subject to approval by a judge.8
Over the years, the use of wiretapping in the United States has been enhanced through the collaboration of law enforcement agencies, telecommunication companies, and the judiciary. The Communications Assistance for Law Enforcement Act (CALEA) allows law enforcement agencies to access all telephone and Voice on Internet Protocol (VoIP) communications through wiretapping.9
Congress passed the Act in 1994 so that telecommunication companies can assist law enforcement officers in conducting authorized electronic surveillance.10 In this regard, the Federal Bureau of Investigation (FBI) has partnered with telecommunication companies such as AT&T and Verizon to access information concerning citizens’ calling and internet use histories.11 Law enforcement agencies use both human agents and sophisticated computer software that convert the intercepted audio data from speech to text.12 The intercepted information is often used as evidence to prosecute criminals in court.
Bugging involves the installation of a small electronic device such as a microphone at a strategic place to overhear conversations.13 Bugging provides better surveillance than wiretapping because it can capture several conversations at the same time.14 The information collected by the microphone is usually transferred to a recording device for future reference. Bugging can only be used as a surveillance technique after being approved by a judge.15
Surveillance photography involves the use of audio-visual devices or equipment to monitor the conversations and movements or actions of others.16 Video cameras are often used for surveillance photography. The cameras are usually connected to an Internet Protocol network (IP network) or a recording device that stores footages from the area under surveillance.17 The use of video cameras has been improved significantly by the development of computer software that automates the process of converting video footage into databases that can easily be searched.18 Moreover, security officers or law enforcement agents often use motion sensors to record only the most important activities in the area under surveillance.19
A wired agent is where human beings and electronic devices are used to monitor or spy on an individual.20 In this case, an individual carries a body camera or a recording device, or both to spy on a third party.21 The wired agent has to be at the same venue as the party under surveillance in order to record conversations. In this context, the use of wired agents seems to violate the Fourth Amendment, especially if the recording is done in an area where the person under surveillance expects privacy.22
For instance, in 1971, James A. White was charged with engaging in illegal transactions in narcotics using information that had been collected by a wired agent.23 Although the agent was not present in court to provide evidence, the trial Court accepted the information he had collected through a radio transmitter as evidence, thereby justifying the use of wired agents24. However, the Court of Appeals, Second Circuit reversed the conviction of James White on the basis that the evidence provided by the wired agent was not permissible under the Fourth Amendment.25
This led to the conclusion that wired agents should not be used without a warrant. However, different states have different laws that guide the use of wired agents for surveillance. For instance, in Virginia, a warrant is not needed to use wired agents since only one party to a conversation has to know about the surveillance for it to be legal. In most cases, the person under surveillance does not have to know about the intrusion by the wired agent. Thus, the government does not need to obtain a warrant in order to use a wired agent to conduct surveillance.
Social Network Analysis
Social network analysis involves collecting data from social network sites such as Facebook and Twitter.26 In addition, it involves an analysis of phone call records to obtain details about the callers.27 Social data analysis is facilitated by computer software that sifts through an enormous amount of data stored in social network sites in order to identify vital information such as the users’ personal interests, affiliations, and activities. Apart from the security agencies, companies commonly use social network sites for marketing purposes.
The Fourth Amendment and the New Surveillance Technologies
The Fourth Amendment states that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”28 Thus, security agents are required in most cases to have a court warrant that is based on probable cause and is supported by an oath or affirmation in order to conduct a lawful search and seizure.29 In addition, the warrant must provide a clear description of the place to be searched, as well as the individual or thing to be searched.30 The objective of the Fourth Amendment is to protect citizens from arbitrary invasions by the government.31
The use of Search and Seizure in Electronic Surveillance
The application of the Fourth Amendment to the new technologies of electronic surveillance depends on the understanding of what constitutes a search.32 Under the Fourth Amendment, a search refers to the infringement of an expectation of privacy by an agent of the government. A seizure, on the other hand, refers to the “interference with an individual’s possessory interest in property.”33 According to the Fourth Amendment, a search and seizure are considered unreasonable only if the owner of the property has a reasonable expectation of privacy. For instance, in the case of Katz v. the US, the law enforcement agents recorded the conversations of the petitioner using an electronic device at a telephone booth that the petitioner relied on to make phone calls.34
In this case, the Ninth Circuit Court of Appeals held that the surveillance was a search and seizure under the Fourth Amendment since the petitioner expected privacy in his oral conversations. This ruling indicates that the Fourth Amendment protects citizens from unlawful search and seizure that may be conducted by the government through electronic surveillance.
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Therefore, the Fourth Amendment is not applicable to the new techniques of electronic surveillance if their use does not constitute a search. For instance, in Olmstead v. the US, the court ruled that the Fourth Amendment did not apply to wiretap.35 This decision was adopted because obtaining information through wiretapping did not involve a physical trespass on the premises of the person who was under surveillance.36
In addition, the court held that seizure applied only to tangible items. Hence, the interception of a conversation through wiretapping did not qualify as a seizure. Contrary to Olmstead’s case, the Ninth Circuit Court held that the use of a thermal imager in Kyllo’s home by the government to collect evidence constituted a search even though the law enforcement agents did not physically trespass on Kyllo’s premise.37
According to the Court, using a sense-enhancing technology to obtain information concerning the interior of a premise that cannot otherwise be accessed without physical intrusion constitutes a search. The legal significance of this ruling is that it extended the application of the Fourth Amendment to the use of technologies that facilitate the intrusion of citizens’ privacy by the government. In this case, the Fourth Amendment applies to technologies such as bugging and photographic surveillance if they are used without a warrant.38
The Warrant Requirement
A search by government agents may only be done if it is allowed through a court warrant. However, there are several exceptions to the warrant requirement, which include the following. First, security agents may search an individual and the area surrounding him if he has been lawfully arrested. Second, the “police do not require a warrant to seize evidence in plain view as long as their presence in the area where the evidence can be viewed is lawful.”39 A judge must have substantial evidence to prove that the search warrant should be issued to allow the use of electronic surveillance. In this case, the use of electronic surveillance should be authorized only if there is sufficient proof that it will enable law enforcement officers to obtain evidence against a suspected criminal.40
However, a search warrant is often not needed when using some techniques of electronic surveillance, such as social network analysis.41 This can be illustrated by the case of Smith vs. Maryland, in which the Maryland Court of Appeals held that the use of a pen register to record phone numbers at the petitioner’s home did not constitute a search under the Fourth Amendment. According to the Court, the petitioner did not have a legitimate expectation of privacy in the phone numbers that he used since the numbers are always legally available to third parties (telephone companies). The Patriot Act also allows security agencies to search email and telecommunication databases in order to improve investigations on terrorist activities. Furthermore, the Patriot Act allows law enforcement agencies to search information stored in databases for various public institutions such as libraries.42
In this case, the Act allows security agencies to use a basic warrant rather than a surveillance warrant to access data from the aforementioned databases. This improves the government’s ability to access citizens’ information that is held by third parties. Since the Act allows various government agencies to share information about a suspected criminal, the chances of invasion of privacy increase.
Reasonable Expectation of Privacy
The application of the Fourth Amendment to new technologies of electronic surveillance depends on whether privacy is expected by the person to be monitored.43 However, the expectation of privacy is not reasonable if a person willingly or knowingly provides certain personal information to a third party.44 This includes the provision of personal data to organizations such as banks, social network sites, and retail shops. In this regard, businesses such as banks can use electronic surveillance to monitor their clients’ banking activities without violating their rights to privacy.
However, the Fourth Amendment applies to electronic surveillance in cases in which the person under surveillance has a reasonable expectation of privacy. For instance, in the case of Warshak v. the US, the Department of Justice illegally instructed the petitioner’s email provider to store his future emails. In this case, the Sixth Circuit Court of Appeals held that the Stored Communication Act does not apply to emails that will be sent in the future.45
The Stored Communication Act states that the “government may require the disclosure by a provider of electronic communication service of the contents of electronic communication that is in electronic storage pursuant to a warrant issued by a judge.”46
Similarly, the government can order a company that provides remote computing services to disclose the content of stored electronic or wire communication that belongs to its customers. The content of the stored communication includes the customers’ names, addresses, telephone numbers, and messages. According to the Stored Communication Act, the government is required to provide sufficient evidence that the information obtained by searching stored electronic communication will help in criminal investigations in order to obtain a search warrant. This requirement prevents the government from using electronic surveillance to conduct a search on stored electronic communication without any good reason.
The Use of Electronic Surveillance by Private Entities
Electronic surveillance technologies are widely used by private businesses and individuals to ensure security. Photography is the most common technology for ensuring security within premises. Most stores, banks, and restaurants have CCTVs, which monitor the movements or activities of people in specific areas.47 The CCTVs consist of cameras that are connected to computer systems that analyze and store footage. In addition, they can be connected to alarm bells to alert security personnel in the event of unlawful activities such as theft.48 For instance, the use of CCTVs in supermarkets helps to save millions of dollars every year, which would be lost due to pilferage.49
Apart from CCTVs, banks use miniature cameras in their automated teller machines (ATM) to prevent the unauthorized use of credit and debit cards. In this case, the cameras are able to capture the details of ATM users for authentication purposes. Surprisingly, criminals usually install similar cameras in ATMs to capture card details such as pin numbers during transactions.50 The criminals then use the details to manufacture identical cards, which they use to withdraw cash from unsuspecting customers’ accounts.
Homeowners, employers, and “car owners also use electronic surveillance technologies to protect their properties from theft.”51 This involves the use of biometric access control systems, which use fingerprints or facial recognition techniques for authentication.52 Similarly, intruder alarms are used to monitor tampering or intrusion at residential and commercial buildings. The alarms have sensors that detect intrusion and trigger a siren, which alerts security agents to respond immediately. Similarly, car owners use intruder alarms to prevent theft or unauthorized access to their cars.
Electronic surveillance is widely used by medium-sized and large organizations to monitor the behavior or activities of their employees. There are several techniques of monitoring employees at the workplace. First, employers use call monitoring to track the communication activities of their employees. This involves listening to and recording employees’ live phone calls with the aid of electronic devices.53
The recorded conversations are often reviewed and analyzed at a convenient time. Second, employers use photographic surveillance to observe the activities of their employees. In this case, employers place cameras in hidden or open places to record the activities of their employees. However, the use of surveillance cameras is often restricted to areas in which employees’ expectation of privacy is considered unreasonable. Finally, employers use computer surveillance to observe the behavior of their employees. Computer surveillance refers to the “use of computerized systems to automatically collect information about how an employee is performing his or her job.”54
In this regard, employers use computer software to track the websites visited by employees, as well as the amount of time they spend on the internet. Some employers use video display terminals to monitor the use of computers in terms of the employees’ typing speed and errors made during typing, among other mistakes. Employers also monitor employees’ communication through email. In certain cases, the ability of employers to monitor employees’ communication is limited by the Electronic Communications Privacy Act (ECPA). This Act prohibits “unauthorized and intentional interception of wire, oral, and electronic communications during the transmission phase, as well as unauthorized access to electronically stored communication.”55
There are two exemptions to the ECPA, namely, “the services provider exemption and the consent exemption.”56 The service provider exemption allows employers to access their employees’ communication if they (employers) are the actual providers of the communication network. However, if a third party provides the communication network, the employer will be liable for violating the ECPA if they gain unauthorized access to employees’ emails and other forms of digital communication. Under the consent exception, the employer is required to obtain the approval of their employees before accessing their private communication.
Electronic surveillance has become an important tool for implementing marketing plans. Businesses such as banks and supermarkets use smartcards or loyalty cards to access the personal details of their customers. They also use the cards to monitor their customers’ purchasing patterns.57 The information obtains through the cards can be used to reward some customers and to make decisions concerning product development. Moreover, observing shopping patterns enable businesses to understand their customers’ tastes and preferences. This enables businesses to stock the right products at the right time. Some companies use electronic surveillance to monitor the effectiveness of their sales campaigns.58
Arguments Against the Return of Olmstead
In Olmstead v. the US, the court held that the Fourth Amendment did not apply to electronic surveillance. This decision was based on the difference between electronic surveillance and other forms of government invasions. Electronic surveillance differs from other forms of intrusion in three ways. First, it does not involve the seizure of any tangible item or property.59 Second, it does not involve a search of a clearly defined place. Third, the target usually has no knowledge of the government’s intrusion. These differences led to the conclusion that the Fourth Amendment does not apply to electronic surveillance. For instance, in Olmstead v. the US, the court concluded that the use of electronic surveillance did not violate the Fourth Amendment since the invasion was conducted without trespass on the respondent’s property.60
Similarly, the court concluded that the Fourth Amendment was not violated in Goldman v. the US.61 In this case, the device used for electronic surveillance was installed on the outer wall of the defendant’s premises. Hence, there was no trespass.62 However, in Silverman v. the US, the court found a violation of the Fourth Amendment since the device used for surveillance was inserted into the wall (a form of trespass) of the defendant’s premise.63
The interpretation of the Fourth Amendment, as illustrated by the aforementioned cases, changed after 1967.64 In US v. Jones, the court held that the government’s use of GPS to track the defendant’s vehicle was a search because the GPS was installed in the car after the expiry of the warrant that had authorized its use.65
Consequently, the evidence collected with the aid of the GPS while the car was parked at the defendant’s compound was rejected. The rejection of the evidence was based on the fact that the defendant had a reasonable expectation of privacy within his compound. However, the evidence collected using the GPS while the car was driven on the streets was accepted because Jones did not have a reasonable expectation of privacy when driving on public roads.
The evidence that had been rejected by the District of Columbia Court was later used to charge Jones with drug trafficking. However, the Court of Appeals for the District of Columbia Circuit held that the evidence obtained by the GPS was inadmissible because it had been obtained without a valid warrant. Clearly, these two cases indicate that the application of the Fourth Amendment cannot be restricted to physical intrusion by the government. Given the advancements in the technologies for electronic surveillance, it will be very easy for the government to invade the privacy of every citizen.
The government and other supporters of the return of Olmstead also argue that unrestricted use of electronic surveillance does not cause harm to most citizens since it is only used to enhance security.66
Consequently, citizens should not worry about the government’s use of electronic surveillance, especially if they have not committed any crime. However, this argument has several flaws. First, the application of unrestricted surveillance can severely affect the freedom of citizens. For instance, the government may require all citizens to carry or wear devices that can be used to track their location to enhance the process of pursuing criminals and improving security. In this case, it can be argued that any person who fails to wear the tracking devices has criminal intentions. However, most citizens will fail to wear the devices because they are interested in protecting their privacy rather than concealing their intentions to commit crimes.
Second, unrestricted access to citizens’ personal information through searching databases and using electronic devices to record such information is prone to abuse.67 In particular, the government’s employees who are entrusted with the information can use it for their personal gain rather than for the purposes of conducting criminal investigations. For instance, security officers can use the information in their databases to monitor the movements of their personal enemies, who may not be criminals. In this regard, the security officers will not only be abusing the information in their custody but will also be denying innocent citizens the right to privacy.
Thus, increasing surveillance is likely to lead to a rise in cases of misuse of the information provided by the citizens to the government. The decision made in Griswold v. Connecticut shows that citizens have a right to privacy, which they should be allowed to enjoy.68
In this case, the appellant had been convicted for illegally providing advice on birth control in Connecticut. However, the US Supreme Court ruled in favor of the appellant by stating that criminalizing the use of birth control was a violation of the right to marital privacy, thereby legalizing the use of various contraceptives. This ruling creates a right to privacy that should be protected through the elimination of unlawful electronic surveillance by the government.
Third, section 605 of the Federal Communication Act protects citizens’ right to maintain privacy over their information, including telephone conversations.69 In particular, section 605 prohibits anyone from intercepting telephone messages without the permission of the sender. In addition, the Act states that “no person shall divulge or publish the message or its substance to any person.”70
This Act provides a strong case against the return of Olmstead in two ways. First, the word ‘anyone’ has been used in reference to both citizens and agents of the government.71 Consequently, law enforcement agents will be violating section 605 of the Federal Communication Act if they use electronic surveillance to intercept telephone messages without the permission of the sender. Second, intercepted telephone messages or conversations cannot be used as evidence in court. They cannot be used because quoting or reciting the messages in testimony in court amounts to divulging the contents of the messages, which is illegal under section 605 of the Federal Communication Act.72 This can be illustrated by the case of Nardone v. the US, where the defendant was charged with smuggling alcohol.73
Here, federal agents had intercepted the conversations of the defendant, which they used to testify against him in court. However, the court held that the evidence was inadmissible because it had been obtained through wiretapping without a warrant, thereby violating section 605 of the Federal Communication Act.74 Thus, Olmstead should not return so that citizens can remain protected from unlawful search and seizure through electronic surveillance.
The new technologies for electronic surveillance include wiretapping, bugging, wired agents, photography, and social network analysis. The Fourth Amendment applies to these technologies as long as their use constitutes a search or seizure by the government. Generally, the government has to obtain a warrant from a judge in order to conduct electronic surveillance. Private individuals mainly use electronic surveillance to improve the security of their properties, such as homes and cars. Similarly, private businesses use electronic surveillance to ensure security within their premises.
In addition, electronic surveillance is used by businesses to monitor their employees and to access information that is required to develop marketing strategies. Given the high potential of electronic surveillance to facilitate the invasion of the privacy of innocent citizens, Olmstead should not return. Moreover, the decisions made in several cases have shown that the Fourth Amendment protects citizens from illegal searches by the government through electronic surveillance technologies.
Adams, James and Daniel Blinka. Electronic Surveillance: Commentaries and Statutes. New York: McGraw-Hill, 2003. Print.
Borene, Andrew. The U.S Intelligence Community: Law Source Book. New York: McGraw-Hill, 2010. Print.
Brauti, Peter, Scott Fenton and Robert Hubbard. Wiretapping and other Electronic Surveillance: Law and Procedure. Boston: Cengage Learning, 2000. Print.
Brookes, Paul. Electronic Surveillance Devices. New York: John Wiley and Sons, 2001. Print.
Casey, Timothy. “Electronic Surveillance and the Right to be Secure.” Journal of Criminal Law and Criminology 41.3 (2008): 979-1030. Print.
Chen, Victor and William Ross. “The Managerial Decision to Implement Electronic Surveillance at Work.” International Journal of Organizational Analysis 34.4 (2005): 244-268. Print.
Goldsmith, Michael. “The Supreme Court and Title III: Rewriting the Law of Electronic Surveillance.” Journal of Criminal Law and Criminology 43.2 (1983): 1-20. Print.
Solove, Daniel, Marc Rotenberg and Paul Schwartz. Privacy, Information, and Technology. New York: John Wiley and Sons, 2006. Print.
United Nations. Current Practices in Electronic Surveillance. New York: McGraw-Hill, 2009. Print.
Weckert, John. Electronic Monitoring in the Workplace. Boston: Routledge , 2005. Print.
Whitfield, Diffie and Susan Landau. Privacy on the Line. Cambridge: MIT Press, 2007. Print.
Yale, Kamisar, Wayne Lafave and Jerold Israel. Modern Criminal Procedure. Boston: West Group, 1999. Print.
- James Adams and Daniel Blinka, Electronic Surveillance: Commentaries and Statutes (New York: McGraw-Hill, 2003) 11.
- Peter Brauti, Scott Fenton and Robert Hubbard, Wiretapping and other Electronic Surveillance: Law and Procedure (Boston: Cengage Learning, 2000) 43.
- Adams, 45.
- In the case of Olmstead versus the United States, the Supreme Court of the United States held that the use of wiretapping to collect evidence against the defendant did not violate the Fourth Amendment. This led to the conclusion that the Fourth Amendment is not applicable to electronic surveillance.
- Brauti 22.
- Brauti 23.
- Brauti 24.
- Brauti 27.
- See Pub. L. No. 103-414, 108 Stat. 4279.
- Andrew Borene, The U.S Intelligence Community: Law Source Book (New York: McGraw-Hill, 2010) 9.
- Borene 61.
- Borene 62.
- Daniel Solove, Marc Rotenberg and Paul Schwartz, Privacy, Information, and Technology (New York: John Wiley and Sons, 2006) 75.
- Solove 78.
- Solove 79.
- United Nations, Current Practices in Electronic Surveillance (New York: McGraw-Hill, 2009) 69.
- An Internet Protocol-based network refers to a group of computers that use a shared physical connection to the internet.
- United Nations 71.
- United Nations 72.
- Brauti 50.
- Brauti 51.
- Brauti 68.
- See the case of the United States versus White, 401 U.S. 745 (1971).
- See 401 U.S 745 (91 S.Ct. 1122, 28 L.Ed.2d 453) for the decision of the judges.
- A similar decision was made in the case of Katz versus the United States and Lee versus the United States.
- Paul Brookes, Electronic Surveillance Devices (New York: John Wiley and Sons, 2001) 56.
- Timothy Casey, “Electronic Surveillance and the Right to be Secure,” Journal of Criminal Law and Criminology 41.3 (2008): 979-982.
- Casey 979-990.
- Adams 113.
- Adams 114.
- Michael Goldsmith, “The Supreme Court and Title III: Rewriting the Law of Electronic Surveillance,” Journal of Criminal Law and Criminology 43.2 (1983): 1-2.
- Goldsmith 3-9.
- See 389 U.S. 347 for the decisions made in the case of Katz versus the United States.
- Casey 990-995.
- Similar arguments were used in the case of California versus Ciraolo and Chemical Co. versus the United States.
- See Kyllo versus the United States (99-8508) 533 U.S. 27 (2001) 190 F. 3d 1041, reversed and remanded.
- Adams 104.
- Adams 105
- Kamisar Yale, Wayne Lafave, and Jerold Israel, Modern Criminal Procedure (Boston: West Group, 1999) 150.
- Yale 151.
- Solove 117.
- Diffie Whitfield and Susan Landau, Privacy on the Line (Cambridge: MIT Press, 2007) 235.
- See the case of Smith vs. Maryland.
- Adams 169.
- Adams 170.
- Victor Chen and William Ross, “The Managerial Decision to Implement Electronic Surveillance at Work,” International Journal of Organizational Analysis 34.4 (2005): 244-248.
- Chen 249.
- Chen 250.
- Whitfield 284.
- Chen 255.
- Solove 214.
- John Weckert, Electronic Monitoring in the Workplace. (Boston: Routledge, 2005) 36.
- Weckert 96.
- Weckert 115.
- Weckert 116
- Weckert 224.
- Chen 260.
- Borene 301.
- See 277 U.S. 438, 457 (1928) for the judges’ arguments.
- See 316 U.S. 129 (62 S.Ct. 993, 86 L.Ed. 1322).
- See 316 U.S 129, 134 (1942) for the court’s decision.
- See 365 U.S. 505, 512 (1961).
- See Katz, 389 U.S 351 for the application of the Fourth Amendment to electronic surveillance.
- Borene 107.
- Solove 172.
- Solove 175.
- See Griswold v. Connecticut (No. 496) 151 Conn. 544, 200 A.2d 479, reversed.
- Adams 315.
- Adams 316.
- Adams 317.
- Casey 1015.
- See Nardone v. the United States, 308 U.S. 338 (1939).
- Brauti 325.