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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 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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