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68 Colum. L. Rev. 189 (1968)
Consent Problem in Wiretapping & Eavesdropping: Surreptitious Monitoring with the Consent of a Participant in a Conversation, The

handle is hein.journals/clr68 and id is 217 raw text is: COLUMBIA LAW REVIEW Vol. 68 FEBRUARY 1968 No. 2 THE CONSENT PROBLEM IN WIRETAPPING & EAVESDROPPING: SURREPTITIOUS MONITORING WITH THE CONSENT OF A PARTICIPANT IN A CONVERSATION KENT GREENAWALT* The extent to which American society should permit wiretapping and electronic eavesdropping has been considered by judges, legislators and scholars for many years, although this consideration has yet to result in legal rules that respond rationally and consistently to the conflicting demands of privacy and effective law enforcement. Constitutional analysis has, until very recently, relied on concepts like physical invasion of a constitutionally protected area, producing distinctions with little relation to underlying social values ;' statutory restrictions on wiretapping have been much more severe than those imposed on eavesdropping, though the latter, particularly in light of the rapidly developing technology, poses a more serious threat to privacy ;2 federal and state provisions on wiretapping have been in direct conflict, and the commission of federal crimes in state courts has been judicially sanc- tioned;3 the notion that divulgence is a necessary element of the federal crime has opened the door to the extensive use of wiretapping both in law enforcement and for private purposes,4 despite an apparently unqualified prohibition ;5 unclearness about what the law is, and the unsympathetic view of most law enforcement officials toward a prohibition of official wiretapping, have resulted in negligible enforcement of federal and state laws. These * Assistant Professor of Law, Columbia University; LL.B. Columbia University, 1963. The author would like to thank William Timme, a third year student at Columbia Law School, for his extensive help in the preparation of this article. 1. Compare Silverman v. United States, 365 U.S. 505 (1961), with the concurring opinion of Mr. Justice Douglas in that case, 365 U.S. at 512. See also Katz v. United States, 88 S. Ct. 507 (1967 . 2. See generally A. WEsTIN, PRrvACY AND FRFEDOM 67-132 (1967). 3. See Schwartz v. Texas, 344 U.S. 199 (1952) (wiretap evidence introduced in state court) ; People v. Dinan, 11 N.Y.2d 350, 183 N.E.2d 689, 229 N.Y.S.2d 406, cert. denied, 371 U.S. 877 (1962). 4. See Rogers, The Case for Wire Tapping, 63 YALE L.J. 792, 793 (1954). 5. Nardone v. United States, 302 U.S. 379, 382 (1937); Nardone v. United States, 308 U.S. 338, 340 (1939).

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