In today's society where the use of telephone has become ubiquitous, wiretapping can provide a valuable aid for catching criminals in the act or for simply giving the tapper important information for personal gain. Wiretapping can also deprive a person of his/her privacy since the caller may have no knowledge that a third party is listening and/or recording the conversation. Because people have "an expectation of privacy" when making telephone calls, (Tuerkheimer, p. 36) the possibility that an unwanted party may be listening to private conversations upsets most people. Thus, the Federal Communications Act of 1934 passed after the Olmstead v. U.S. decision prohibited wiretapping by federal agents without a court order or a warrant. (Freedman, p. 111) Is this enough?
Unfortunately, although the statute requires the federal agencies to obtain a search warrant in order to tap a line, telephone company is exempted from obtaining any search-warrants for routine monitor. (Petrocelli, p.183) As a result, the telephone company can and did monitor about 1.8 million telephone calls in one incident for five years, justifying its action as necessary to catch Phone Phreaks. (Petrocelli, p. 180) However, of the approximated 1.8 million monitored telephone calls, more than 98 percent of the calls were innocent calls which happened to be picked up while trying to catch Phone Phreaks. (Petrocelli, p. 180) Even more shockingly, telephone company employees routinely listen to numerous telephone conversations for maintenance and training. (Petrocelli, p. 183) In fact, the Pacific Bell's White Pages carries a notice warning that "for training and quality control purposes, one percent or less of operator-assisted or directory assistance phone calls between Pacific Bell employees and customers are monitored without notice to the customer or the employee, by supervisory or management personnel."
The loophole in the existing wiretap law leaves sizable room for invasion of the privacy of an unsuspecting phone caller. Although according to the notice in the White Pages "calls between customers are not monitored for [training and quality control purposes] or for any purpose...except when required by law enforcement and national defense agencies," if the telephone company spots suspicious calls, the telephone company may inform the law enforcement agencies of suspicions of criminal activity so that the law enforcement agents can obtain a warrant to tap the phone line. In fact, a case in Baltimore, Maryland raises the question whether the telephone company and law enforcement agents may be cooperating beyond the legal limits. In 1975, Baltimore police officers asked their friends in the telephone company's security office to listen in on suspicious calls to a certain residence so that enough evidence could be collected to obtain a warrant. (Petrocelli, p. 184-5) Although the existing wiretap law stipulates that the phone company should help law enforcement agencies in executing warrants for wiretap, (Rotenberg, p. 67) the law does not provide for unofficial surveillance by the telephone company. However, it is difficult to stop such surveillance because the existing law exempts the phone-company employee in routine monitoring of the calls.(Petrocelli, p. 184) Hence, unofficial surveillance can occur in the disguise of routine monitoring.
An average person would not consider that a conversation over the phone would be monitored without consent by a third party. How about when the consent is given? Although existing law forbids wiretapping without a warrant for the law enforcement agents, the law does allow wiretapping by a "party to the communication" or with his/her "prior consent." (Petrocelli, p. 182) In other words, a person can tap his/her own line or give permission to tap the line. Does that mean that the other party must also give consent to being tapped? No. The fact that the wiretapping law does not require consent from both ends of the call for tapping the line can be problematic since the other party may not wish to be overheard. The party that has not given consent to being tapped may not even have the choice of ending the call of the tapped line since without a warning, the party would not be aware that the line is tapped.
Whose consent is needed to tap the line in cases where more than one person uses the same line? In the case of married couple, either the husband or the wife alone can give consent to tapping the line without informing the other spouse. In 1974, a Circuit Court of Appeals ruled that a husband could legally consent to tapping the line without informing his wife because they live together in the same house. ( Petrocelli, p. 183) The courts also have permitted a company to tap the line within its offices. (Petrocelli, p. 183) Again, because the law does not require the consent of all the users of the same line, these cases reflect serious problems in protecting the privacy of the some of the telephone users.
The loopholes in the existing wiretap laws allow room for loss of privacy for individuals caught unsuspectingly. Granted that "wiretapping has been a critical tool in combating organized crime, drug trafficking, and acts of extortion, terrorism, kidnapping, and murder," (Denning, IEEE Spectrum, p. 16) the potential for wiretapping to not only intrude but monitor individuals weighs heavily in today's society. One can argue that when people use the phone they must assume that "the contents of their private phone calls can be revealed by a telephone workman who wanders across their line." (Petrocelli, p. 184) In fact, perhaps people should assume that no privacy will be given when making any phone calls. After all, no law exists giving people the right to use the phone; using a telephone is a privilege much like driving. Isn't it?
With the birth of telephone system, society rapidly adopted speedy communication into their daily lives. Today, the telephone has become an invaluable tool for people to stay informed and in touch with each other. From personal calls to business calls, much of our lives depend on the usage of the telephone. The telephone has become ubiquitous because it replaces the need for people to be physically present to conduct errands and transactions. Hence, when people use a telephone, people expect as much privacy in a telephone conversation as a private conversation between two people in a room. Because of this function of a telephone conversation, the telephone company or any other equally equipped organization such as the government cannot assume that those privileged to use a phone should expect a minimal amount of privacy. Consequently, unwanted surveillance and unconsented wiretapping violate an implicit right which cannot be condoned .
The extension of the telecommunication technology from telephones to the Internet not only extends new method of communicating but also the problems of unwanted surveillance. The same amount of privacy should exist in using e-mail by the same line of logic as using the telephone. However, because of even less law existing to protect privacy rights in using e-mail, privacy invasion problems are rife in the e-mail system. For example, Alana Shoars lost her job at the Epson company because she tried to stop her supervisor from monitoring the e-mail system and has brought suit against the company for wrongful termination. (Branscum, p. 63) Subsequent to learning the Epson company's policy on the e-mail system, the employees of Epson brought suit against Epson which the court dismissed because the court ruled that California statute which prohibits wiretapping and eavesdropping on private communication does not apply to an e-mail system. In fine historical fashion, the court stated that the legislation should resolve these types of problems by enacting clearer statutes covering e-mail systems. (Trubow, p. 97)
The federal statute at present is ambiguous about what constitutes an
invasion of privacy in an e-mail system. The only federal statute available
for privacy problems involving e-mail system is the Electronic Communications
Privacy Act of 1986. This statute forbids the interception of electronic
information and the disclosure of intercepted information in a system not
accessible to public. The provider of such a system can intercept and disclose
information for its normal course of business but cannot monitor the system
except for mechanical and service quality-control check. ( In using either a phone or Internet, the problem of violation of privacy
remains unresolved because of unclear legislation. Although the system
providers claim that maintaining the operation of the systems necessitates
routine monitoring, such routine monitoring can easily transform into
surveillance which invades the privacy of the users of the systems. As people
depend more and more on these technologies for communication, more surveillance
will probably take place to secure the systems' operations, and there will be
more violations of privacy. The legislature must enact clearer legislation on
what should constitute a routine monitoring.
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