How two men Roy Olmstead and Charles Katz both convicted criminals created our wiretapping law.

Meet Roy Olmstead and Charles Katz—one was a Prohibition era bootlegger, the other a '60s gambler. Neither did anything earthshaking with their lives, but history remembers them both because their arrests, based on warrantless telephone taps, reached the United States Supreme Court.

In the two cases that resulted, the Supremes took starkly different perspectives on whether the men's constitutional rights had been violated by wiretaps without a warrant.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," says the Fourth Amendment. But as telephone wires invaded the 20th century, judges had to constantly rethink what that sentence meant. In doing so, the justices paved the way for modern wiretap law and for the controversies over warrantless wiretapping that would become a feature of the "War on Terror."

When these principles were adopted, "force and violence were then the only means known to man by which a Government could directly effect self-incrimination," his dissent explained. "It could compel the individual to testify—a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life— a seizure effected, if need be, by breaking and entry."

Now "subtler and more far-reaching means of invading privacy have become available to the Government," Justice Louis Brandeis observed. "Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet."

If the Constitution's amendments were living documents, then as technology changed, the parameters of these rights must change.

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.

To defend that right, "every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment," Brandeis insisted.


Link:
http://arstechnica.com/tech-policy/news/2011/06/the-crooks-who-created-modern-wiretapping-law.ars