Alan Heimlich



Law enforcement is often interested in the verbal communications of persons they suspect of illegal activities because a case, be it civil or criminal, is so much stronger when the suspect's own words can be used against them.[1] There are a wide variety of methods to eavesdrop on communications.[2] Several techniques exist for retrieving this type of communication. They fall into two basic methods, and two basic approaches. The methods are direct or "wired" listening wherein a 'wire' is run to the listening device, and "wireless" or "bugs" using radio or laser transmissions for retrieval of the information. The two basic approaches are to "tap" the physical locality where the communications are taking place, or tap or "intercept" the communications link itself. The former method with the latter approach is commonly called "wiretap" or "tapping" and is the subject of this comment.

The advent of new forms of verbal communication beyond the traditional telephone has had a major impact on wiretapping. The use of mobile telephones, pagers, facsimiles, and other devices has provided an ever changing challenge to law enforcement.[3] The recent expanded use of email, the Internet, and forms of data encryption have increased this challenge even further.[4]

This comment traces the development of telephony technology and the closely associated law. Most changes in wiretap law follow closely changes in telephony capabilities and the two are inextricably intertwined. Thus effective analysis of the law requires an understanding of the technological changes and the resultant capabilities to fully appreciate the possible impacts.

This comment then, proposes that because of the rapid rate of technological innovation, it is imperative that government regulators work closely with industry so that there are no major cost increases or disruptions to the communications structure. Finally, this comment concludes that without strict and precise legislative language, the current crop of wiretap laws places undue burdens on communications companies and violates constitutional guarantees.



A. Pre 1934

1. Technology

Alexander Graham Bell developed the telephone while working with the deaf in 1874.[6] Ironically, he was unaware that the audiotelegraph was working when he accidentally spilled acid on his trousers and his cry for help was heard by his assistant Mr. Watson. Thus arguably, the first communication over this great medium was a wiretap!

Early wiretaps consisted of physically "tapping" into or connecting to the existing phone lines. Much like an extension phone in a house, wires had to be run from the "tap" to the listening post. The taps were often physically located close to where the wires for the tapped phone ran into the house or building. Thus the wiretap had associated with it implicitly not only the telephone number, but also the physical locality. In this way, information that was intercepted not only provided the contents but also the knowledge of origination. This could be very useful in those cases where an actual arrest might be needed. One could identify the suspect via the voice and be assured that they were within a certain building. Next, tapping locally yielded to taps located on telephone poles. The next step was to place the tap at the telephone switching center called a Central Office (CO) in telephony parlance. The central office connected to all the lines and telephones in its service area. Thus, it was like a funnel taking in many lines in a wide area and routing them through the "central office switchboard." A tap could be easily placed here for any of the telephone numbers the central office handled. This was a major improvement for law enforcement because it provided a central location removed from the "tapee" where they could quickly tap many lines. Additionally, because the central office handled calls in a known geographical region, it was possible for government officials to "locate" telephones of suspects and their physically closely located cohorts. They could readily move from line to line, temporarily tapping it during a conversation to locate the "lines" used by suspects and then place permanent taps on these. The process of locating parties was popularly called a "trace."

The phone system described above where a central office would connect to a subscriber's phone is called a "switched circuit." At its most basic it requires an electrical connection from the callers phone (A) through the callers central office (CO) across telephone lines to another receiving central office (CO) at the receiving end to finally the called number (B). See Figure 1. If A placed a call to C then the "circuit" was "switched" to make the A to C connection shown in Figure 2. Initially this circuit switching was done by the operators at switch panels by actually plugging in the telephone wires. Later electrical relays were used, and finally electronics. Regardless of the switching mechanism (people, relay, electronics), there was still a direct "circuit" from caller to receiver and traditional wiretaps worked anywhere along the entire circuit. This type of "switched circuit" also transmitted the actual analog voice signals of the speakers. Therefore, tapping was basically as simple as connecting another phone into the existing line.[6]


2. Law

The first Federal statute on wiretap law appeared in 1918.[7] It permitted counterespionage wiretapping during the First World War.[8] Federal wiretaps were then used to assist in prosecution of violations of the National Prohibition Act.[9] The wiretap was challenged in 1928 in Olmstead v. United States.[10] The sole question before the Court was "whether the use of evidence of private telephone conversation between the defendants and others, intercepted by means of wire tapping, amounted to a violation of the Fourth and Fifth Amendments."[11] In a 5 to 4 decision with Justices Brandeis, Holmes, Butler and Stone dissenting, the majority found that the historical interpretation of the Fourth Amendment was to prevent the use of government force to search a house, seize a person, papers or effects against the person's will,[12] and that wiretapping was not searching or seizure and no entry was made into a persons house,[13] nor were any tangible effects taken.[14] Thus, the Court ruled that "wire tapping . . . did not amount to a search or seizure within the meaning of the Fourth Amendment."[15] The question of the Fifth Amendment violation was dismissed by claiming that the issue would not arise unless the Fourth Amendment was first violated,[16] and noting that defendants had not been compelled to use the phone but had done so voluntarily and therefore had not been compelled to testify against themselves.[17]


B. 1934-1966

1. Technology

Telephony became mainstream and pervasive. The local lines running from the central office to the telephone were basically unchanged. Major upgrades in the central office amounted essentially to electronic switching. The "party line" wherein multiple households shared a telephone connection to the central office gave way to direct lines from the central office to the end user's telephone.

Telephone signaling or dialing went from pulse mode to touch tone, operators were replaced by automatic switching, and other services were added (hold, transfer, forwarding, etc.). Companies started installing private branch exchanges (PBX) for internal telephone networks. Even with all these advances, the technology to wiretap was basically unchanged from earlier.


2. Law

The decision in Olmstead paved the way to widespread wiretapping without the need for a court order.[18] In reaction,[19] Congress passed the next major change in the law in the form of the 1934 Federal Communications Act ("FCA").[20] This prohibited call interception without the consent of one of the parties.[21] Here now, wire communications were prohibited[22] and through a series of Supreme Court decisions, such evidence was deemed inadmissible.[23] Electronic bugs and planted microphones came into use and the court treated them differently than wiretaps, saying they did not violate the Fourth Amendment.[24]

The 1942 case of Goldman v. United States[25] held that a bugging device placed against an office wall adjacent to the suspect was not subject to the FCA because there were no "communications" or "interceptions" as defined by the statute.[26] The Court ruled that absent physical trespass, searches employing electronic bugs were not in violation of the Fourth Amendment.[27]

Later, in 1954, in the case Irvine v. California[28] even microphones concealed in a home were not held in violation of the FCA,[29] however in 1961 the Court in Silverman v. United States[30] ruled evidence obtained with a spike mike that had been driven into an adjacent wall, inadmissible.[31]


C. 1967-1991

1. Technology

In January 1968, American Telephone and Telegraph ("AT&T") announced their designation of 911 as a universal emergency number,[32] thus effectively shifting from the local telephone operator to a centralized public safety agency, the responsibility for emergency calls.[33] Also after protracted lawsuits, AT&T agreed to let other manufactured telephones connect to its network as long as they met standards set by the Federal Communications Commission ("FCC").[34] In 1974, MCI Communications Corporation challenged AT&T over its long distance monopoly. Antitrust proceedings resulted in the break up of Ma Bell in 1983, and the establishment of the regional bell operating companies (RBOCs).[35]

During this period there were great advancements made in electronics. With the advent of microelectronics and powerful computers came the realization that the analog voice signal from the telephones could be converted to a digital form. Digital signals are easier to work with. The process of converting the analog signals to a digital form is done by an analog-to-digital converter (ADC). Digital signals can be converted back to analog form with a digital-to-analog converter (DAC). While analog signals have different amplitudes or volume, digital signals are either on or off and are represented by ones (1) and zeros (0). Suffice it to say, that in theory and practice, it is possible to digitally represent exactly any analog signal (witness the compact musical disk (CD)).

The digital converters are located at the central offices and communication between central offices is done via digital signals as shown in Figure 3. If this was the totality of the changes by going to digital then we could have "analog" taps at the central and "digital" taps along the central office to central office connection which is called the backbone. One of the benefits of having signals in digital form is that they can be easily manipulated. The backbone connection is required to carry many telephone calls collectively referred to as traffic. Rather than having a direct connection from central office to central office carrying only a single conversation, it is possible to have it carry a series of conversations simultaneously. A set of telephone conversations can be "grouped together" (called multiplexing) and sent over the backbone. At the other end the group is "split apart" (called de-multiplexing) and sent to the correct respective telephones. This grouping of signals makes a wire tap on the backbone more difficult because the "grouping" changes based on the users (calling different numbers) at both ends. There is no longer a single dedicated channel from the caller to the receiver. Even given this additional difficulty, it is possible to tap the lines and select the "targeted" one.

The backbone is a precious resource because it carries many telephone conversations and is often a long distance connection. Economics dictate maximum use of any capacity on the backbone. This capacity to carry calls is called bandwidth. Now on a long distance call, there may be a series of "switching centers" that could route a call from point A to B based on traffic congestion (trying to use the least crowded lines). In Figure 4, the connection is made by A-D-E-G-B. Suppose we set a tap at E recording a conversation. Another possible route is A-D-F-G-B as shown in Figure 5. If this route is taken then the tap at E receives nothing. Clearly we need information on how the signal is being routed and we need taps at those places! Even with the routed connection going from A to eventually B through other locations, the route was constant for the duration of the telephone conversation, that is we had a "circuit." Enter the digital age where the concept is that of converting the analog to a digital signal, splitting it up into "packets" of data, sending the packets on any route possible, "reassembling" the packets at the other end in the correct order and delivering the data. "Packets" typically represent only a short part of the conversation (less than a second). So, in Figure 6, 100,000 packets from 100,000 users (representing one second of all these conversations) might get routed from C-D-E-F, in the next second the packets might go via C-G, the third second they might go via D-E, and so on. This is called "packet switching." We no longer have a dedicated "switched circuit" as described above, but instead a virtual circuit based on "packet switching." The complexity of wiretaps on the backbone has greatly increased.


2. Law

The earlier distinction, where the courts had treated electronic bugs and planted microphones differently than wiretaps, saying they did not violate the Fourth Amendment,[36] was overturned in 1967 in Katz v. United States.[37] The Court held inadmissible evidence obtained from a listening device in a public telephone booth.[38] The court decided to protect the person's reasonable expectation of privacy in communications rather than a physical location. That is, the Fourth Amendment protects people, and not places,[39] and in this case, the unauthorized wiretapping violated the defendant's reasonable expectation of privacy and so constituted a "search and seizure" within the meaning of the Fourth Amendment.[40]

The restrictive ruling in Katz, gave rise to the Omnibus Crime Control and Safe Street Act of 1968[41] ("1968 Act").[42] Title III of the 1968 Act established procedures for "interceptions" for criminal investigations and listed a series of crimes which wiretaps were limited to.[43] Congress amended the 1968 Act by passage of the Electronic Communications Privacy Act of 1986 ("ECPA")[44] because of improvements and advances in telecommunications technology.[45]


D. 1992 Onward

1. Technology

Once voice is in digital form, it is easy to send it to its destination via any route that works. That is, it is not necessary to send voice communications over a telephone network. Being in digital form it is no different, transmission-wise, than say documents, faxes, video, music, TV, radio, email, etc. All these signals can be sent over the Internet. In fact, the trend is to use any network, whatever it was originally designed for, to send digital signals. The Internet, can handle all these signals simultaneously, and dynamically route each small part of the communication over possibly thousands of different computers to reach the final destination. Despite the complexity, it is very cost effective. Unfortunately, the complexity of tapping a signal in this environment is expensive and can be extremely difficult.

The use of cell phones started to rise rapidly and presented a new set of challenges. In the earlier scenarios we could always tap at the origination (A) or destination (B) telephone because they were "wired" and permanent. However, if A and B are cell phones and are moving, then they are picked up by different "cells" or antennas for the mobile phones as they travel. These connections from the "cells" into the phone lines are not through the same central office. They are different as the mobile phone call is handed from "cell" to "cell." We now are unable to tap at a fixed central office. The varying central office (potentially at both ends if both are using cellular and moving) and the digital packet switching described above, results in a large time varying "network connection." The ability to effectively wiretap in this scenario is complex and costly.


2. Law

With the advent of digital telephone switching as detailed above, plus the widespread availability of computers, the wiretap community faced a series of challenges not only in the interception of signals but also because of encryption, the very real prospect that intercepted communications could not be decoded and comprehended.[46] The EPCA had failed to adequately address the rapidly changing technology such as new wireless data communications, cellular laptop computers, and wireless local area networks (LANs).[47] Against this background, a series of government initiatives were introduced to allow tapping and decoding capability.[48] The Federal Bureau of Investigation ("FBI") was concerned about the increasing difficulty to tap and locate calls.[49] They prepared a legislative proposal in 1992,[50] and a revised version called the "Digital Telephony and Communications Privacy Improvement Act of 1994" was submitted to Congress in March 1994.[51] President Clinton, under intense lobbying pressure from FBI Director Louis Freeh, signed a revised version called the Communications Assistance for Law Enforcement Act of 1994 ("CALEA") into law October 1994.[52]

On another front, which will become relevant later, the FCC was considering expansion of the 911 emergency capability. The impetus was again related to advances in technology. Specifically, whereas 911 calls from fixed wired phones provided location information, the same was not true for wireless which was becoming more popular. To address this, the FCC first proposed an Enhanced 911 System ("E911") in 1994.[53] After modifications, the FCC adopted rules of E911 service in June of 1996.[54]

The FBI had also been lobbying Congress for expanded wiretap authority in the form of a "roving wiretap." A roving wiretap is where law enforcement taps any telephone used by or near to the suspect.[55] Congress openly rejected the idea in 1995[56] and 1996,[57] however, in 1998 it was added by a conference committee even though it was in neither the House or Senate version before the committee.[58]



With the new communication models brings challenges and new expanded capabilities. It is not clear if the old model of wiretap is technically feasible. The costs associated with fulfilling full wiretap capability may be prohibitive. If such a wiretap ability is implemented, then it would permit eavesdropping via a long distance wiretapping capability. This capability presents possible problems of great abuse as the wiretaps could be established to any phone in a matter of seconds. Additionally, the new capabilities, if fully implemented, would allow for tapping millions of telephone conversations simultaneously. Also possible is the retrieving not only of the conversation but also additional information such as location of calls placed on wireless units. It is not clear if these new capabilities for determining positional information are within the existing structures and limits of wiretap laws and not violative of Constitutional Rights.

IV. Analysis

A. Early Strict Interpretation

The Court in Olmstead v. United States[59] strictly construed the interpretation of the wiretap law. Under their analysis, voluntary use of the telephone was not compelled by the government and so did not violate the Fifth Amendment against self-incrimination.[60] If this viewpoint were strictly used today then there would probably be found no violation of the Fifth Amendment for any electronic form of communication that was voluntarily used. The Court's response to the challenged Fourth Amendment violation in wiretapping, disclosed that the communications were not "a tangible form."[61] Thus, if there was no entry into a structure, then there was no search or seizure of a tangible item. Within this interpretation, the current electronic means of communication would not run afoul of the Fourth Amendment.


B. Shift to Expectation of Privacy

In Katz v. United States[62] the Court overruled Olmstead. The new rationale for the Court was the idea that there was a reasonable expectation of privacy by people. The emphasis thus shifted from the historical perspective of person and property in the house, to one of person and their communication. Implicit in the historical perspective was that the person and their property within the house were to be secure from search and seizure. The Court separated these and while maintaining the personal connection, decided that the seizure requirement was based on an expectation of privacy. This change was more of a paradigm shift than a revelation. The expectation of a person encompasses their effects in their home. Thus the new interpretation encompassed the historical view and provided a new perspective. What was required to be overturned was the notion that only if effects were within the home, were they subject to search and seizure in violation of the Fourth Amendment.

The change due to Katz, made the interception of communications now an issue within the reach of the Fourth Amendment. The legislative response from Congress with the necessary backing of the law enforcement community was the 1968 Omnibus Crime Control and Safe Street Act. Title III of the Act established procedures for "interceptions" for criminal investigations and listed a series of crimes which wiretaps were limited to.[63]

A court order is required for the installation of a tap. The investigator draws up an affidavit showing there is probable cause to believe that the targeted communications device --- whether phone, fax, computer --- is being used to facilitate a crime. The crime must be serious and indictable. A government attorney must prepare an application for a court order, and approval must be by a member of the Justice Department no lower in rank than Deputy Assistant Attorney General. The application must be decided upon by a Federal District Court Judge.

In order for a judge to approve a wiretap order, he must determine that (i) there is probable cause to believe that an individual is committing, or is about to commit, an indictable offense; (ii) there is probable cause to believe that communications about the offense will be obtained through the interception; (iii) normal investigative procedures have been tried and have either failed, or appear unlikely to succeed, or are too dangerous; and (iv) there is probable cause to believe that the facilities subject to surveillance are being used, or will be used, in the commission of the crime. Such requirements may be waived in an emergency, if an application for a court order is made within forty-eight hours. Any oral or wire communication intercepted in violation of Title III cannot be divulged.

When a court order for a wiretap is approved, it is taken to the communications service provider for execution. Under Title III, the provider is required to assist in discharging the wiretap, and the provider is compensated for all expenses. Taps are approved for at most thirty days, with any extension needing a new court order.[64]


This bill by clearly spelling out the legal procedures required for wiretapping, satisfied the Fourth Amendment requirement for a warrant with probable cause and detailing with particularity "the place to be searched, and person or things to be seized."[65]


C. New Privacy Concerns

As communications technology advanced, Congress became aware of possible privacy issues and in October 1985, the Office of Technology Assessment ("OTA") issued a report. Titled "Electronic Surveillance and Civil Liberties",[66] the report concluded that current legal protections were weak, ambiguous, or non-existent.[67] Congress amended the 1968 Act by passage of the Electronic Communications Privacy Act of 1986 ("ECPA")[68] because the 1968 Act did not adequately protect new forms of communication such as wireless and computer transmissions.[69] Title III of the 1968 Act had covered only voice communications, either face to face or over a wire.[70] Additionally, it had only applied to communications sent by common carriers.[71] ECPA extended Title III to include wireless voice communications and electronic non-voice communications such as computer to computer (e-mail, etc.).[72] Congress was attempting to not only provide a new measure of privacy to these new forms of communication,[73] but also assure that new telecommunication services would be developed and used.[74] There was an acute awareness that without guarantees of privacy, "[i]t may discourage American businesses from developing new innovative forms of telecommunications and computer technology."[75]

Congress also in ECPA, began to deal with "transactional information."[76] Transactional information consists of telephone records, stored information, etc.[77]Title III of the ECPA also added a new chapter[78] 206 to title 18[79] dealing with pen registers, traps, and trace devices. These devices are intended to provide transactional information only.[80] A "pen register" is a device that is attached to a telephone line[81] and records or decodes the numbers dialed.[82] It does not include any device which is used for billing purposes.[83] A "trap" or "trace" device captures and identifies the originating number of an electronic communication.[84] These devices are not to identify or record the contents of the communication.[85] In reality, because they connect to the telephone lines and can listen for such things as audible dial tones, it is easy for them to intercept the communications as well and often all that is needed is "the attachment of an audio cable, a tape recorder, and a wire to enable the interception of such contents."[86]


D. New Wiretap Initiatives

As the communications technology continued to advance the FBI was concerned about the inability to tap and locate some calls.[87] They proposed several initiatives dealing with encryption[88] and wiretapping.[89] In 1994 the Communications Assistance for Law Enforcement Act of 1994 ("CALEA") was passed.[90] As originally proposed the scope of wiretap capability was very wide.[91] The final version had limitations for tapping to common carriers only[92], and allocated initially $500M to cover costs[93] of implementation from 1995 to 1998[94]. The limitation to a common carrier was due to concern that small telephone exchanges such as a company PBX might be liable for the $10,000 per day fine[95] if they did not provide a tap. The tapping capacity was issued by the FBI in a series of Notices.[96] After some initial misunderstandings the "FBI published its nearly 100-page Final Notice of Capacity on March 12, 1998."[97] [98] In a city like Los Angeles the notice provided for an estimated 167 interceptions per day[99] based on a historical use of 60 interceptions per day.[100]


1. Implementation Challenges

There are several major issues with respect to the implementation of CALEA. One issue is the technical requirements and the time required to implement them. Closely allied to the first, is the cost issue and who funds not only the initial conversion but who pays for the annual upkeep and upgrades needed. Finally there is confusion on exactly what "call identifying information" is.

The technical requirement and implementation of CALEA has brought about a howl from the privacy sector as well as the industry. Many lawsuits and challenges have been made by both individual and industrial groups. The United States Telephone Association (USTA) has brought suit[101] alleging that the FBI regulations promulgated "obliterate Congress' careful allocation of costs . . ."[102] and that it shifts the burden of cost to the carriers[103] and has a "disproportionately harmful effect on small carriers . . . ."[104] The Cellular Telecommunications Industry Association (CITA) has also filed suit against Reno (FBI head).[105] CITA alleges an FBI definitional change that ignores CALEA's reimbursement intent[106], that the definition poses anticompetitive problems[107], that it violates CALEA[108] and seeks an injunction against enforcement.[109] The issue has reached such proportions that the FCC in 1998 launched an investigation[110], and is soliciting public comment.[111]

The time requirement for implementation of CALEA was originally October 25, 1998.[112] When originally published in 1994[113], industry claimed that it would be unable to meet such a deadline.[114] Finally in September of 1998 the FCC extended the deadline to June 30, 2000[115] on an industry-wide basis.[116] The FCC order[117] however did not address the issue raised by industry and privacy advocates that the FBI was using the law to expand wiretap capabilities.[118] The FCC did however acknowledge the importance of their ruling on such an issue[119] and indicated that they would soon consider modifications to the core standard of CALEA.[120]

On August 27, 1999 the FCC issued a press release on CALEA.[121] The FCC clarified which service providers are subject to the requirements of CALEA, and provided guidance regarding compliance with the law.[122] The FCC further clarified the definition of "telecommunications carrier" per section 102 of CALEA.[123] Entities now subject to CALEA include, all entities previously classified as common carriers, cable operators, electric and other utilities to the extent they offer telecommunications services for hire to the public.[124] Perhaps the most interesting development was that “[w]hile facilities used solely for the provision of information services are not subject to CALEA, telecommunications carriers' facilities used to provide both telecommunications and information services are subject to the requirements of the Act.”[125] (Emphasis added.) Since many ISPs (Internet Service Providers) have co-located equipment, they may be subject to CALEA. Additionally, since the Internet is capable of providing telecommunications, arguably they may fall under CALEA on this point as well.

Also on August 27, 1999 the FCC issued another press release related to CALEA and technical standards.[126] This press release is more revealing in the particulars that the FCC expects CALEA to cover. The requirements cover wireline, cellular, and broadband Personal Communications Services (PCS) carriers and are referred to as six of nine "punch list" capabilities requested by the Department of Justice and the FBI.[127] All of these capabilities are to be implemented by June 30, 2000.[128] The FCC, realizing the difficulty as discussed above of “tapping” packet-switched communications, has delayed implementation for these services until September 30, 2001.[129]

Under the new standards, law enforcement agencies (LEAs) are required to get a court order or legal authorization beyond a pen register or trap and trace authorization to obtain "call-identifying information."[130] This "call-identifying information" is to include location information.[131]

The FCC found that location information identifies the "origin" or "destination" of a communication and thus is covered by CALEA. The FCC, however, did not mandate that carriers be able to provide LEAs with the precise physical location of a caller. Rather, it permitted LEAs with the proper legal authorization to receive from wireline, cellular, and broadband PCS carriers only the location of a cell site at the beginning and termination of a mobile call.[132]

For packet-mode (same as packet-switched) communications the FCC determined that law enforcement agencies “could be provided with access to both call identifying information and call content, even where it may be authorized only to receive call identifying information.”[133] (Emphasis added.) Rather than addressing the privacy concerns that the FCC acknowledged, they recommended that private industry under the guise of the Telecommunications Industry Association (TIA) come up with suggestions by September 30, 2000 “on steps that can be taken, including particular amendments to the interim standard, that will better address privacy concerns.”[134] This seems a strange turn of events where the government acts with a default against an issue as important as privacy and puts the onus on private industry to “recommend” possible ways to protect it.

The six of nine "punch list" capabilities requested by the DOJ and the FBI and now required to be implemented by June 30, 2000 are:

Content of subject-initiated conference calls -- A LEA will be able to access the content of conference calls initiated by the subject under surveillance (including the call content of parties on hold), pursuant to a court order or other legal authorization beyond a pen register order.

Party hold, join, drop on conference calls -- Messages will be sent to a LEA that identify the active parties of a call. Specifically, on a conference call, these messages will indicate whether a party is on hold, has joined, or has been dropped from the conference call.

Subject-initiated dialing and signaling information -- Access to dialing and signaling information available from the subject will inform a LEA of a subject's use of features (e.g., call forwarding, call waiting, call hold, and three-way calling).

In-band and out-of-band signaling (notification message) -- A message will be sent to a LEA whenever a subject's service sends a tone or other network message to the subject or associate (e.g., notification that a line is ringing or busy, call waiting signal).

Timing information -- Information will be sent to a LEA permitting it to correlate call-identifying information with the call content of a communications interception.

Dialed digit extraction --The originating carrier will provide to a LEA on the call data channel any digits dialed by the subject after connecting to another carrier's service.,[sic] pursuant to a pen register authorization. The FCC found that some such digits fit within CALEA's definition of call-identifying information, and that they are generally reasonably available to carriers. [135]

The three items that did not make the “punch list” were a surveillance status wherein a wiretap could be checked for functioning correctly, a continuity check tone whose purpose would be to alert law enforcement agencies if a wiretap failed or was disconnected, and a feature status that would inform law enforcement agencies if “calling services” of a facility under surveillance were added or deleted.[136] The FCC found that these capabilities were not required by CALEA, but suggested that carriers were “free to provide these capabilities if they wish to do so.”[137]


2. Funding Wiretaps

The $500M allocated for CALEA implementation[138] was felt by the industry to be wholly inadequate. The $500M was for a 4 year period ending in 1998.[139] Even discounting the industry the Congressional Budget Office ("CBO") had this to say in 1994 "The costs of the bill in fiscal years 1998 and 1999 are very uncertain because the precise technical solutions to the bill's requirements are unknown at this time."[140] The CBO went further and estimated the costs would be "roughly $100 million annually."[141] And perhaps more significantly was the likelihood that "[c]osts of this order of magnitude could continue in later years."[142]


3. Call Identification and Location

"Call identifying information" is the buzzword that CALEA uses for implementation standards. There are definitions for electronic mail,[143] computer-to-computer communications,[144] electronic bulletin boards,[145] microwave communications,[146] cellular telephones,[147] cordless telephones,[148] electronic pagers,[149] pen register and trap and trace devices,[150] electronic tracking devices (transponders),[151] and remote computer services[152]. The significance of the differentiation between cellular and cordless and tracking devices, lies in the explicit lack of and inclusion in relation to positional information. The cellular and cordless make no mention of positional information. The electronic tracking devices definition specifically states "This signal can be received by special tracking equipment, and allows the user to trace the geographical location of the transponder. Such 'homing' devices are used by law enforcement personnel to keep track of the physical whereabouts of the sending unit . . . ."[153] Even though CALEA specifically excludes location from "call-identifying" information,[154] the FBI has maintained that this information is to be available to law enforcement pursuant to a court order.[155] "Despite the express prohibition on this kind of surveillance, the FBI has also insisted that the industry accommodate its desire to track the location of its subjects."[156] What is innocuous here is that for rapid dialing, most automobile mobile phones are effectively on at all times. Thus under this plan the FBI would be able to track all cars with such units and anybody switching on a wireless telephone regardless of whether a call was being placed.[157] In addition the FBI wanted the information on what numbers you dialed for voice mail[158] and the FBI wanted to be able to continue to listen in on a conference call even after the suspect had hung up.[159] The industry outcry was predictably rejected.[160] This is pretty much where the issue stands at this point. An industry and privacy advocates on one side and the FBI and law enforcement on the other.


4. Expanded Roving Wiretaps

Then in late 1998 the FBI in a maneuver that was decried (it was added by a conference committee even though it was in neither the House or Senate version before the committee[161]) expanded wiretap authority in the form of a "roving wiretap." A roving wiretap is where law enforcement taps any telephone used by or near to the suspect.[162] Under this scenario then, a suspect who visits a non-suspect now allows the police to tap the non-suspect's telephone.[163] The rationale is that the suspect might use the telephone. The FBI has always had a roving wiretap authority with a court order and proof that a suspect was switching phones to avoid detection.[164] However under the changes the police only need to show that an individual's "actions could have the effect of thwarting interception from a specific facility."[165] This shift from "proof" to "could" is a much lower standard.


5. Emergency 911 and Location Information

With the increase in usage of cellular telephones, the FCC was considering expansion of the 911 emergency capability, not only for wider coverage, but also for location information to assist in emergencies. To address this, the FCC first proposed an Enhanced 911 System ("E911") in 1994,[166] and after modifications it was adopted in June of 1996.[167] Like the FBI proposal the industry wanted to be compensated for this change. While the cellular companies have some general information about which "cell" you are in, the information does not pinpoint a specific location. A cell typically covers a large area. Technically you can derive the location information from triangulation, foot-prints, or GPS (Global Positioning Satellite) signals. Triangulation uses differences in the time of arrival of a cellular signal to different receiving antennas and the signal strength to get an indication of where you are. However, reflections and interference can make this of marginal value. Foot-prints actually use the characteristics of signal strength and multiple reflections to figure out the location. The advantage of the foot-print approach is that only a single antenna is needed. The disadvantage is that in order to get a foot-print you need to traverse the entire area covered mapping the signals and reflections. Another disadvantage is that new buildings, trees, etc. mess up the signature pattern. Finally there is GPS. The idea here is to embed in every cell phone a GPS unit. Upon remote activation then, the phone could report its position. Once thought too expensive this approach is well within reach and very attractive. With current technology it can locate you within about 10 feet. Expensive units today can locate you within less than a foot. Imagine the desirability of this information from the standpoint of the FBI and law enforcement being able to know if you are in the kitchen talking on the phone or whether you just moved into the bathroom.

The E911 program has different phases wherein each succeeding phase requires more accuracy in the locating process.[168] Phase I[169] requires only the "cell" location information[170] and is currently required[171]. Also required as of April 1, 1998 was the automatic number identification (ANI).[172] This allows the 911 center to call back any person calling in. It basically transfers your phone number to the 911 center. Phase II due for implementation beginning October 1, 2001,[173] more precise location information is required. The current standard is to be able to locate 67% of the time, the phone within a radius of 125 meters[174]. Industry again said that implementation would take more time than allocated and is currently in the process of extended discussions with the FCC.

Given the technologies that are evolving in E911, it is not a far stretch to see that the FBI and law enforcement would like this positional information. Technically a carrier could "tag" a tap as a 911 call and thus obtain this information. Given the FBI's tactics in the past, this is a very real possibility.


E. Wiretap Costs

According to the FBI the $500 million allocated for upgrading of equipment is sufficient. The industry feels the number is closer to $1.5 billion. The FBI, state, and local law enforcement had a total of less than 1200 wiretaps in 1995.[175] Assuming this number then, the 1995 cost per wiretap was $416,666.67 based on the $500 million and was $1.25 million per wiretap based on the industry figure of $1.5 billion. Rather expensive! Either the FBI really values the information OR they are tapping many more lines than they are willing to admit.



There is a need to balance the interest of law enforcement with those of the individual. Given the rapid advances in technology and the aggressive stance of the FBI on extensions to the wiretap laws, there is concern that that the balance has been tipped against privacy. It seems reasonable then to return to the Constitution and reinterpret the meaning of freedom of movement, association and search and seizure. In this light then we must shed the technical innovations which will always be changing and ask anew the questions as Justice Brandeis did in 1928 in Olmstead.

When the Fourth and Fifth Amendments were adopted, 'the form that evil had theretofore taken' had been necessarily simple. Force and violence were then the only means known to man by which a government could directly effect self- incrimination. 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. Protection against such invasion of 'the sanctities of a man's home and the privacies of life' was provided in the Fourth and Fifth Amendments by specific language. . . . But 'time works changes, brings into existence new conditions and purposes.' Subtler and more far-reaching means of invading privacy have become available to the government. 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.

Moreover, 'in the application of a Constitution, our contemplation cannot be only of what has been, but of what may be.' The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. 'That places the liberty of every man in the hands of every petty officer' was said by James Otis of much lesser intrusions than these. To Lord Camden a far slighter intrusion seemed 'subversive of all the comforts of society.' Can it be that the Constitution affords no protection against such invasions of individual security?[176]


A reasonable course appears to strictly interpret CALEA as it stands and not allow the expansions sought by the FBI. If extensions are needed then they should be explicit and NOT in a midnight committee that inserts into legislation that which neither the House or the Senate submitted.




The FBI concerned about the proliferation of Personal Digital Assistants (PDA) and their merged wireless capability has persuaded the FCC under the guise of being able to locate a person signaling for assistance, to declare that wireless PDAs fall within the E911 guidelines. This plus the CALEA expansion to ISPs allows the FBI to wiretap PDA’s. Of particular interest is the syncing data that many people now send and receive from both their home and office computers in order to stay current with appointments, etc. The courts have to date, considered this to fall within the established email protects, however this is likely to change, now that one of the Supreme Court Justices daily activities for the past five years and activities for the coming year has been disseminated on the web.



The rapid expansion of light networks (like Terabeam) for company to company and now customer to customer telecommunications has very much upset the FBI and law enforcement. Of particular concern is that there is no more centralized or even clumped distributed channel that can be wiretapped. The FBI’s Digital Storm (started in 2000) despite encryption was able to effectively garner information from massive correlation of communications and transactions. However, with the ability of lightwave point-to-point direct communication, law enforcement is not even aware of communications taking place. Corporate wiretapping was dealt with by the FBI and courts extending the communication carrier definition and not buying the PBX exclusions in the early version of CALEA. However, law enforcement and particularly the FBI was livid over the expansion of this communications capability to the individual consumer. Now point to point communication was untapable. The FCC tried to ban the devices, but was largely unsuccessful. The FBI was able in some cases to track down beams traveling point to point and tap them by scattering some of the laser light. This worked well for arresting persons because they knew the origination and destination points. However, this approach ended shortly and the FBI went ballistic when they discovered that people were aiming the lasers skyward and bouncing their signals off corner cubes. The first of these cubes was put on the moon 45 years ago, and others were put in earth orbit by the military (supposedly unknown to the public). The effect was that the signals origin and destination were now unknown and with the use of encryption from an unknown sender to an unknown receiver it was an impossible taping task.



Enhanced biometric readings coupled with the quantum computer which allowed the easy integration of SQUID (superconducting quantum interference devices) devices now allows an 85% accuracy in determining when a person will go postal. This has driven the price of the postal detectors to the $10K range and their proliferation has exploded. Even private residences have them in the entryways. This was not a concern until a hacker in Togo claimed to be able to determine more than just a rage cluster. The idea that some other thoughts might be picked up and discerned, has put the Supreme Court in a real bind. How they rule in Enlil v. FBI may determine if we are ever able to enter a public place without having our thoughts read.



The use of wiretap originally required little more than hidden wires to the telephone system in a building and a remote listening post. Advances in tapping sophistication moved the tap to the central switching office. Advances in technology, particularly the "switched circuit" to digital "packet switching" change, greatly complicated remote tapping. Throughout all these advances the positional information on the tapped telephone was implicit. With the advent of the wireless telephone, which can move from cell to cell, that information is no longer implicitly available. To regain this lost information the government "extended" the current wiretap laws to include this positional information. It is this extension which raises constitutional issues. Taping into a telephone, which a suspect may use, is different than tracking a phone that a suspect may use. The issue is one of whether tracking movements impinges on freedom to associate (either the suspect or other persons)(First Amendment), is an unreasonable search or seizure (Fourth Amendment), or is a violation of due process (Fifth / Fourteenth Amendment).

Current interpretations and a reasonable extension of the law appear to provide a legitimate base for such information only when a valid warrant has been issued. The danger of extension lies in "positional association" and roving wiretaps. The entire area is a quagmire both legally and technologically. Strict interpretation of CALEA prohibits detailed positional information.

It is perhaps time to abandon the wiretap model of communications interception and rely instead on other methods such as bugging. Much like the ill fated attempts to outlaw private cars that were faster than police cars, time and technology have passed the wiretap by.

[1] Geoffrey R. Greiveldinger, Digital Telephony And Key-Escrow Encryption Initiatives: A critical juncture as law enforcement agencies work to save electronic surveillance., 41 FED. B. NEWS & J. 505 (1994).


[3] Greiveldinger supra note 1, at 510.

[4] Id. at 506.

[5]"Alexander Graham Bell," MICROSOFT ENCARTA ENCYCLOPEDIA 99 (1998).

[6] This type of tap had to only connect to the two wires that were used for the telephone connection. They are often referred to as Tip and Ring. The plugs that the early operators used on the switch panels are similar to the 1/4 inch stereo headphone jacks common on stereos today. The Tip was the connection at the tip. The Ring was the other connection and carried the ringing signal to the phone. Once the phone was picked up, the ring would stop and the Tip and Ring would carry the callers voice signals.

[7] Susan Landau et al., Codes, Keys and Conflicts: Issues in U.S. Crypto Policy, ASS'N FOR COMPUTING MACHINERY, June 1994, at ch. 3.

[8] Id.

[9] Id.

[10] Olmstead v. United States, 277 U.S. 438 (1928).

[11] Id. at 455.

[12] Id. at 463.

[13] Id. at 464.

[14] Id. at 466.

[15] Id.

[16] Olmstead, 277 U.S. at 462.

[17] Id.

[18] Shelly Warwick, The Right to Spy: Government, Technology and Privacy, AM. SOC'Y FOR INFO. SCI., at 71 (June 1997).

[19] Id.

[20] Landau, supra note 4.

[21] Warwick, supra at 72.

[22] Landau, supra note 4.

[23] Id.

[24] Id.

[25] 316 U.S. 129 (1942).

[26] Landau, supra note 4.

[27] Id.

[28] 347 U.S. 128 (1954).

[29] Landau, supra note 4.

[30] 365 U.S. 505 (1961).

[31] Landau, supra note 4.

[32] Alan Burton, 911 (last modified Sept. 3, 1998) <http://www.911dispatch.com/911_file/911_burton.html>.

[33] Id.

[34] "Telephone," Microsoft® Encarta® Encyclopedia 99 Microsoft Corporation (1998).


[36] Id.

[37] 389 U.S. 347 (1967).

[38] Hildegarde A. Senseney, Interpreting The Communications Assistance For Law Enforcement Act Of 1994: The Justice Department Versus The Telecommunications Industry & Privacy Rights Advocates, 20 HASTINGS COMM. & ENT. L.J. 665, 669 (1998).

[39] Katz v. United States, 389 U.S. 347, 351 (1967).

[40] Id. at 353.

[41] Pub. L. No. 90-351, 82 Stat. 197 (1968) (codified as amended at 18 U.S.C. §§ 1367, 2232, 2510-2522, 2701-2711, 3121-3127 (1996)).

[42] Warwick, supra note 18, at 72.

[43] Among the list of crimes was: murder, kidnapping, extortion, gambling, counterfeiting, sale of marijuana.

[44] Pub. L. No. 99-508, 100 Stat. 1849-1853 (1986) (codified at 18 U.S.C. §§ 2510-2522 (1996)).

[45] Senseney, supra note 35, at 670.

[46] Landau, supra note 4, at ch. 6.

[47] Senseney, supra note 35, at 670.

[48] Among the encryption ones, which are not the subject of this paper, was the refusal to extend the key length in the 56bit DES (Data Encryption Standard, circa 1977), the DSS (Digital Signature Standard) with a compromised key length (1994), and the ill-fated Clipper chip with a back door key.

[49] Landau, supra note 4, at ch. 6.

[50] Id.

[51] Id.

[52] Senseney, supra note 35, at 671.

[53] Proposed Rules Federal Communications Commission: Enhanced 911 Emergency Calling, 199459 FR 54878 (47 CFR Part 68 ((CC Docket No. 94-102, RM-8143; FCC 94-237)) (Nov. 2, 1994) (available in 1994 WL 594483).

[54] See FCC Adopts Rules To Implement Enhanced 911 For Wireless Services, CC Docket No. 94-102, Report No. DC 96-52 (rel. June 12, 1996).

[55] Lawmakers ease wiretap rules, SAN JOSE MERCURY NEWS, Oct. 9, 1998, at 20A.

[56] Id.

[57] Dan Gillmor, Congress' Sneak Attack On Liberty, SAN JOSE MERCURY NEWS, Oct. 13, 1998.

[58] Id.

[59] 277 U.S. 438 (1928).

[60] Olmstead v. United States, 277 U.S. 438 (1928).

[61] Id.

[62] 389 U.S. 347, 351 (1967).

[63] Among the list of crimes was: murder, kidnapping, extortion, gambling, counterfeiting, and sale of marijuana.

[64] Susan Landau et al., Codes, Keys and Conflicts: Issues in U.S. Crypto Policy, ASS'N FOR COMPUTING MACHINERY, June 1994, at ch. 3.

[65] U.S. CONST. amend. IV.

[66] U.S. Congress, Office of Technology Assessment, Federal Government Information Technology: Electronic Surveillance and Civil Liberties, OTA-CIT-293 (Oct. 1985).

[67] Id.

[68] See supra note 41.

[69] James X. Dempsey, Communications Privacy In The Digital Age: Revitalizing The Federal Wiretap Laws To Enhance Privacy, 8 ALB. L.J. SCI. & TECH. 65, 73 (1997).

[70] Id.

[71] See 18 U.S.C. 2510(10) (1968).

[72] Dempsey supra at note 66.

[73] Id. at 73-74.

[74] Id. at 74.

[75] S. Rep. No. 99-541, at 5 (1986), reprinted in 1986 U.S.C.C.A.N. 3555.

[76] Id. at 2.

[77] See 18 U.S.C. § 2701 (1999), et seq.

[78] S. Rep. No. 99-541, at 15 (1986), reprinted in 1986 U.S.C.C.A.N. 3555.

[79] 18 U.S.C. §§ 3121-3127 (1999).

[80] S. Rep. No. 99-541, at 15 (1986), reprinted in 1986 U.S.C.C.A.N. 3555.

[81] 18 U.S.C. § 3127(3) (1999).

[82] Id.

[83] Id.

[84] 18 U.S.C. § 3127(4) (1999).

[85] S. Rep. No. 99-541, at 15 (1986), reprinted in 1986 U.S.C.C.A.N. 3555.

[86] U.S. v. Miller, 116 F.3d 641, 660 (C.A.2 NY 1997), cert. denied, 118 S. Ct. 2063 (1998).

[87] Landau, supra note 4, at ch. 6.

[88] Among the encryption ones, which are not the subject of this paper, was the refusal to extend the key length in the 56bit DES (Data Encryption Standard, circa 1977), the DSS (Digital Signature Standard) with a compromised key length (1994), and the ill-fated Clipper chip with a back door key.

[89] Landau, supra note 4, at ch. 6.

[90] Senseney, supra note 35, at 671.

[91] Landau, supra note 4, at ch. 6.

[92] 47 U.S.C. § 1001 (1999).

[9] 47 U.S.C. § 1009 (1999).

[94] Senseney, supra note 35, at 675.

[95] 18 U.S.C. § 2522(c)(1) (1999).

[96] Senseney, supra note 35, at 678-81.

[97] Id. at 680.

[98] 63 Fed. Reg. 12,218 (Mar. 12, 1998).

[99] Senseney, supra note 35, at 680.

[100] Id.

[101] United States Telephone Ass'n. v. FBI, No. 1:98CV02010 (D DC, complaint filed Aug. 19, 1998).

[102] Id.

[103] Id.

[104] Id.

[105] Cellular Telecomm. Indus. Ass'n v. Reno, No. 1:98CV01036 (D DC, complaint filed April 27, 1998).

[106] Id.

[107] Id.

[108] Id.

[109] Id. See also In The News: FCC Launches Investigation of Digital Wiretap Law, Cyberspace Lawyer, May, 1998, available at 3 No. 3 GLCYLAW 29.

[110] In The News: FCC Launches Investigation of Digital Wiretap Law, Cyberspace Lawyer, May, 1998, available at 3 No. 3 GLCYLAW 29.

[111] Id. FCC notice is available at http:// www.fcc.gov/Bureaus/Common_Carrier/Public_Notices/1998/da980762.txt (visited May 6, 2000).

[112] 47 U.S.C. § 1003 (1998).

[113] CALEA went into law October 1994. See Senseney, supra note 35, at 671.

[114] Ellen d'Alelio, Selected Regulatory Developments, 3 No. 5 Elec. Banking L. & Com. Rep. 22 (Oct. 1998).

[115] FCC Order No. 98-223. The FCC has held firm on this date, however, there is a petition process to delay implementation. See FCC 00-154 (April 25, 2000) at <http://www.fcc.gov/Bureaus/Common_Carrier/Public_Notices/2000/fcc00154.doc>.

[116] d'Alelio supra note 135.

[117] The FCC Memorandum Opinion and Order, and Commissioner statements are available at <http://www.fcc.gov>.

[118] d'Alelio supra note 135.

[119] Id.

[120] Id. The industry standard is J-STD-025.


PROVIDES GUIDANCE ON "REASONABLY ACHIEVABLE" PETITIONS, FCC Order 99-229, CC Docket No. 97-213, WT Report No. 99-24 (Aug. 27, 1999).

[122] Id.

[123] Id.

[124] Id.

[125] Id.

[126] FCC Press Release, FCC ADOPTS CALEA TECHNICAL STANDARDS, FCC Order 99-230, CC Docket No. 97-213, ET Report No. 99-4 (Aug. 27, 1999).

[127] Id.

[128] Id.

[129] Id.

[130] Id.

[131] FCC Press Release, FCC ADOPTS CALEA TECHNICAL STANDARDS, FCC Order 99-230, CC Docket No. 97-213, ET Report No. 99-4 (Aug. 27, 1999).

[132] Id.

[133] Id.

[134] Id.

[135] Id.

[136] FCC Press Release, FCC ADOPTS CALEA TECHNICAL STANDARDS, FCC Order 99-230, CC Docket No. 97-213, ET Report No. 99-4 (Aug. 27, 1999).

[137] Id.

[138] 47 U.S.C. § 1009 (1999).

[139] Id.

[140] S. Rep. No. 103-402, at 32 (1994), available at 1994 WL 562252.

[141] Id.

[142] Id.

[143] See supra S. Rep. No. 99-541 note 77, at 9.

[144] Id.

[145] Id. at 10.

[146] Id.

[147] Id. at 11.

[148] Id.

[149] See supra S. Rep. No. 99-541 note 77, at 12.

[150] Id. at 13.

[151] Id.

[152] Id. at 14.

[153] See supra S. Rep. No. 99-541 note 77, at 13.

[154] 47 U.S.C. § 1002 (1999).

[155] Senseney, supra note 35, at 688.

[156] Id.

[157] Joe Salkowski, Feature: Bugging the airwaves: Privacy advocates fight to limit FBI wiretaps on cell phones, StarNet Dispatches, Feb. 18, 1998, available at <http://www.dispatches.azstarnet.com/features/1998/0218.htm>.

[158] Id.

[159] Id.

[160] John Markoff, Cellular Industry Rejects U.S. Plan for Surveillance, N.Y. TIMES, Sept. 20, 1996, at A1.

[161] Dan Gillmor, Congress' Sneak Attack On Liberty, SAN JOSE MERCURY NEWS, Oct. 13, 1998.

[162] Lawmakers ease wiretap rules, SAN JOSE MERCURY NEWS, Oct. 9, 1998, at 20A.

[163] Id.

[164] Id.

[165] Id.

[166] Proposed Rules Federal Communications Commission: Enhanced 911 Emergency Calling, 199459 FR 54878 (47 CFR Part 68 ((CC Docket No. 94-102, RM-8143; FCC 94-237)) (Nov. 2, 1994) (available in 1994 WL 594483).

[167] See FCC Adopts Rules To Implement Enhanced 911 For Wireless Services, CC Docket No. 94-102, Report No. DC 96-52 (rel. June 12, 1996).

[168] FCC News Report, FCC Requires Wireless Carriers To Forward All 911 Calls (CC Docket 94-102), Rep. No. WT 97-43 (Dec. 1, 1997).

[169] 47 C.F.R. § 20.18 (2000).

[170] See supra FCC News Report, note 172.

[171] Id.

[172] FCC Public Notice, Wireless Telecommunication Bureau Seeks Comment On Request For An Emergency Declaratory Ruling Filed Regarding Wireless Enhanced 911 Rulemaking Proceeding, DA 98-1504 (CC Docket No. 94-102) (July 30, 1998).

[173] FCC News Report, supra note 172.

[174] Id.

[175] Stat. Div., Admin. Office of the US Cts., 1995 Wiretap Rep. at 7 (1996). Even as late as 1997 the FBI was claiming “will not increase the amount of electronic surveillance,” a press release from the FBI January 14, 1997 available at <http://www.fbi.gov/pressrm/pressrel/pressrel97/telephon.htm>.

[176] Olmstead v. United States, 277 U.S. 438, 473-74 (1928)(citations omitted).

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