An unrelenting drive to overcome public resistance

The social history of wiretaps

David Price

In the immediate aftermath of 9/11, the American public hastily abandoned a century of fairly consistent opposition to government wiretaps.  Months before the 9/11 attacks, distrust of the FBI was at one of its highest historical levels, as the June 20, 2001 USA Today headline proclaimed “Poll: 4 in 10 American’s Don’t Trust FBI.”

The fear spread by the 9/11 attacks and Bush’s terror wars brought uncertainties that helped cloud memories of intelligence agencies’ historical abuses. At the time of Edward Snowden’s disclosure of NSA’s PRISM program a Pew/Washington Post poll showed 56% of respondents found the program’s collection of metadata “acceptable,” and 45% believed that government should “be able to monitor everyone’s email to prevent possible terrorism.”

While American culture has long traditions of distrusting government, there are concurrent themes of patriotic zealousness. But even with such contradictions, it is clear that for the better part of a century most Americans consistently opposed governmental wiretaps—even wiretaps of criminals. Americans had to be coerced into accepting these limits on privacy, freedom of association and expression. The history of American wiretapping finds consistent efforts by governmental agencies to increase surveillance capabilities.

Federal government and states outlaw wiretaps

In 1877 the world only had a single telephone line spanning any significant distance, with 778 phones operating on one line connecting Boston and Salem, Massachusetts. At the beginning of the 20th Century, about one in a thousand Americans had telephones, but by the 1920s one in a hundred had phones, and at mid- century about one in three homes had them. Today, the US has more phones than people. There are over one billion land-based telephone lines on earth, and an estimated six-billion cellphones.

During the First World War wiretapping became so commonplace that Congress outlawed the practice despite the obvious threats to national security posed by spies and saboteurs. After the war dozens of states enacted state law further limiting the electronic surveillance powers of local police.

During Prohibition, as bootleggers used telephones to establish lines of communication,  federal agencies routinely ignored the law and  eavesdropped on phone calls. As local police increasingly used wiretaps, the federal government took actions to limits law enforcement agents’ use of wiretaps. With support from the public, in 1924, US Attorney General Stone forbid the Justice Department from conducting wiretaps. The Treasury Department and the Bureau of Investigation resented Stone’s policy — both agencies continued to secretly employ wiretaps.

The Supreme Court okays use of wiretap evidence

A 1926 Seattle rum-smuggling case in which federal agents used wiretaps to prosecute former police lieutenant and bootlegger Roy Olmstead established important legal rulings on the constitutionality of wiretaps. When Olmstead made its way to the US  Spreme Court in 1928, Seattle’s Pacific Telephone and Telegraph Company brief supported the right of illegal smugglers not to have their conversations monitored, writing:

“When the lines of ‘two parties’ are connected with the central office, they are intended to be devoted to their exclusive use, and in that sense to be turned over to the exclusive possession of the parties. A third person who taps the lines violates the property rights of both persons then using the telephone, and of the telephone company as well.”

It is difficult to imagine a contemporary Internet Sservice Provider or telecommunication corporation advocating for the privacy rights of their customers. Instead, Facebook, MSN, Google and other corporations identified by Snowden feign ignorance.

Though the Supreme Court found in favor of the government in the case. Justice Brandeis’ dissent warned:

“Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means—to declare that the Government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.”

Because of broad public disapproval of wiretaps, the FBI adopted a fake public posture regarding electronic surveillance. The FBI’s 1928 operations manual maintained that wiretapping was not allowed and that it was “improper, illegal. . .and unethical.” Nonetheless, the FBI conducted secret wiretaps while Hoover lied to congress, claiming agents caught wiretapping would be fired. Hoover  exploited high publicity crimes and public fears to push for ever greater wiretapping powers.

The 1934 Communications Act federally criminalized the tapping of telephones, and in 1939 Nardone v. the US, the Supreme Court upheld Congress’s ability to outlaw the use of wiretaps. Yet law enforcement agencies continued illegal wiretap operations, gathering information not presented in court. Nardone stopped short of repairing the damage inflicted by the Olmstead decision, and wiretaps gained new life during the Second World War as America’s intelligence agencies gained strength and civil liberties were weakened.

Mission creep:  from Nazi spies to civil rights activists

In 1940 J. Edgar Hoover attempted to secure new wiretapping powers but was defeated by FCC Chairman James Fly.  President Roosevelt then issued a secret executive order authorizing widespread Justice Department wiretaps of “subversives” and suspected spies. Hoover used these vague new powers to investigate not just Nazis but anyone he deemed subversive. Years later, the FBI was still listening in on other people’s conversations without  authorization.  The social history of wiretaps is a history of mission creep, where FBI agents initially hunting for wartime Nazi spies soon monitored progressive activists fighting racial segregation.

During the 1940s, the telephone became an increasingly ubiquitous feature of American households and the FBI used fears stoked in the McCarthy period to expand its use of illegal wiretaps. They targetted not only suspected Communists, but a wide range of progressives struggling for civil rights, union leaders, social workers, and progressive religious groups. Despite this, even during the McCarthy Period, the courts did not sanction illegal FBI wiretapping. When the FBI disclosed it had illegally wiretapped conversations between accused Soviet agent Judith Coplon and her lawyer, the appeals court overturned her conviction.

The Patriot Act removes restrictions that curtailed FBI and CIA illegal activities

The years following Hoover’s 1972 death brought successive scandalous revelations about illegal intrusions by the FBI and CIA into Americans’ private lives. The Church and Pike Committee investigations revealed extensive surveillance campaigns directed at Americans engaged in lawful political activities. The American public was initially outraged at the extent of the CIA and FBI’s illegal activities, but the wave of shock soon gave way to complacency, and Congress abandoned meaningful oversight of domestic and foreign intelligence agencies. With time, many Americans learned to forget the documented instances of CIA and FBI prurient surveillance, harassment, assassination and defamation programs.  By 2001, few Americans recalled the abuses that had led to restrictions on domestic spying; restrictions that were removed by the Patriot Act.

One trophy that helped the intelligence community gain acceptance by the public  of circum-constitutional procedures was the 1978 Foreign Intelligence Surveillance Act (FISA). FISA created a wholly secret judicial arrangement for authorizing wiretaps and other electronic surveillance relating to issues of “National Security.”  In 2002, a court ruling removed the requirement that probable cause be established before a FISA court could authorize electronic surveillance. In the 26 years between 1978 and 2004, FISA’s kangaroo court rejected a total of 5 of 18,761 warrant requests.  Last year FISA court personnel authorized every single request they received.

Other avenues for electronic eavesdropping

The internet in its infancy was used primarily by military personnel and on university campuses. It was legal to intercept email messages traveling through phone lines until passage of the Electronic Communications Privacy Act in 1986.  The Act required that electronic communications have the same legal protections as phone communications — although this did not extend to conversations made on cordless phones.

Next came the 1994 Digital Telephony Act, which required all fiber-optic based switches be equipped to facilitate court approved wiretaps. There was widespread opposition to the bill demonstrated in letters to the editor, editorials, and articles condemning the proposal. The  ACLU and Electronic Privacy Information Center and others denounced the bill even as it was pushed through Congress and became law. There was a stark contrast between the communication industry’s embrace of this legislation and their stance in the 1927 Olmstead appeal in which the industry opposed all efforts by law enforcement to tap phone lines.

In the early and mid-1990s the American public’s protection from electronic surveillance was further eroded by a series of court cases involving questions of whether workplace email had the same privacy protections as a letter or a phone call. Many judges establishing this case law were internet-illiterate;  they had never used email.  They needed even the most basic features of email explained to them in court. Judges made important decisions about realms of social life of which they had no first-hand knowledge. They did not seem to understand the argument that they were abolishing the same expectation of privacy one had when using the telephone or mail in the workplace. As employers gained new powers of workplace surveillance, the working public was trained to accept an erosion of privacy and reduced expectations of electronic privacy rights.

Why wasn’t an email communication like a letter?

Had the judiciary in the early 1990s considered the nature of email communications as being little more than an electronic envelope, America might be a very different country today.

Post-9/11,  police gained new surveillance powers. NYPD has twice the number of personnel as the FBI, and it has revived a political investigatory unit that was earlier disbanded as the result of a 1985 legal settlement (known as the Handschu Agreement). NYPD now collects political dossiers on individuals across the country and around the world. Legislatures in many states granted local police increased wiretap powers; they are hiring retired CIA and FBI personnel to advise them on monitoring suspected “terrorists, subversives and dissidents.” These shifts connect the present with past surveillance campaigns of the 1940s, 50s and 60s as new targets once again include activists challenging a wide range of social problems. Anti-war protestors, the Occupy Movement, Greens, and others from the left and right who oppose government policies are targetted with the tools of enhanced surveillance.

One of the most important shifts is that — after a century of stiff opposition — the American public is learning to surrender their rights to electronic privacy. Fewer and fewer Americans remember how long we resisted emplowering our secret political police with such unchecked abilities and resources.

Memory as defense

The key to understanding the opinion shifts supporting the rise of domestic metadata mining programs and wiretaps is that these developments are less something new than they are part of a long parade of legitimization validating the American intelligence agencies’ campaign to erode constitutional protections against rampant wiretapping. The Patriot Act dismantled the firewall separating domestic criminal investigations from espionage investigations and empowered Homeland Security, FBI and NSA to oversee roving wiretap and surveillance operations with no public oversight.

The Snowden leaks confirm what many scholars of American intelligence agencies have long suspected: the Bush and Obama administrations gave the NSA unprecedented surveillance authority to monitor domestic electronic communications. The public’s acceptance of post-9/11 panoptical-surveillance requires us to forget past abuses. While fear nurtures forgetfulness, fear alone is not enough: fear needs to be managed. Government- and media-framed analysis help keep much of the public from remembering a past scarred with constitutional abuses. In a nation where education reform relegates the teaching of history to a place below that of  teaching to standardized tests, these historical gaps loom large. The recapturing of lost historical territory remains a daunting task but crucial task.

David Price is a professor of anthropology at Saint Martin’s University, Washington. This essay is excerpted from a much longer article that originally appeared in the June 2013 issue of CounterPunch magazine and is reprinted by permission of the author.

 

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