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66 Dick. L. Rev. 17 (1961-1962)
Wire Tapping and Electronic Surveillance: A Neglected Constitutional Consideration

handle is hein.journals/dlr66 and id is 27 raw text is: WIRE TAPPING AND ELECTRONIC SURVEILLANCE: A NEGLECTED CONSTITUTIONAL CONSIDERATION BY DONALD B. KING* Assisted by Marwin A. Batt Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in the in- sidious encroachment by men of zeal, well-meaning but without un- derstanding. Louis D. Brandeis.' Within recent years a number of leading public figures have strongly advocated the use of wire tapping and electronic surveillance. Others with equal vigor have raised their voices in opposition to such devices.2 Unfortu- nately, the passion generated by these arguments has tended to obscure some of the understanding of basic constitutional questions. The opinions of the Supreme Court have not aided in clarifying this area3 and yet it is of utmost importance that these issues be fully comprehended for this great debate must someday be resolved. The failure to understand them may, in the words of Justice Brandeis, present the greatest dangers to liberty. It is the purpose of this article to point up and elucidate the constitutional problems involved in these clouded skies and to add a vitally important con- sideration which has thus far been neglected. THE BASIC QUESTION PRESENTED Wire tapping is not a new problem in the United States.4 However, modern developments and the availability of electronic devices that may be used to place an individual under surveillance have added a new dimension to it, making the need for an answer imperative.5 * Assistant Professor of Law, Dickinson School of Law; B.S., Washington State University; LL.B., Harvard University. 1. Olmstead v. United States, 277 U.S. 438, 479 (1928) (dissenting opinion). 2. For a partial list of articles concerning this debate, see appendix to Hearing Before the Subcommittce on Constitutional Rights of the Senate Committee on the Judiciary, 85th Cong., 2d Sess., Pt. 1 (1958). (Hereinafter cited as 1958 Hearings.) 3. See pp. 19-24 infra. 4. Even as far back as the Civil War, General Jeb Stuart had his own personal wire tapper. The first prosecution for wire tapping was in 1864 in California. See DAsH, SCHWARTZ & KNOWLTON, THE EAVESDROPPERS (1959). (Hereinafter cited as DAsH.) 5. In the most recent case in this area, Silverman v. United States, 365 U.S. 505 (1961), the Court was able to avoid some of the fundamental constitutional problems by basing its decision on a technicality. See p. 20 infra. Also, the Court's recent deci- sion in Mapp v. Ohio, 367 U.S. 643 (1961), regarding the use of illegally obtained evidence, may have an indirect effect here.

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