America’s first wiretapping conviction happened in 1864. A stockbroker named D.C. Williams had been tapping a telegraph line in California to get corporate information, which he used for advantageous stock trades. The law he broke had been passed two years earlier, making California the first state to regulate wiretapping.
The telephone had not been invented yet, and the transcontinental telegraph had only just been completed. The Golden State’s legislators were ahead of the game. Ever since then, legislation dealing with electronic surveillance has been playing catch-up—both with the technology and with public sentiment.
In the early days of the telegraph, privacy was a difficult issue to address. It was impossible to expect or demand that only the addressee could see your communication: Operators had to both transmit and receive the messages, and couriers had to deliver them. The same was initially true of the telephone: Calls were connected by an operator, and many subscribers were on party lines. This made legislation hard. Simply “listening” couldn’t be forbidden, since many individuals had legitimate reasons to listen or could do so incidentally.
“Eavesdropping was a feature of telephony from the beginning,” Georgetown University’s Brian Hochman observes in The Listeners, a history of American wiretapping. “Customer privacy was an invented ideal that came later.”
Attitudes toward wiretapping evolved too. Soldiers on both sides of the Civil War had engaged extensively in the practice, and newspapers depicted their actions as beneficial, even heroic. But in peacetime, tapping was seen as the province of con men, blackmailers, and other disreputable types.
These wiretappers came up with many creative scams. A common technique was a gambling swindle: The con man would intercept the results of a horse race in another city before they could be communicated to a bookmaker, then place a bet on those results. Given delays in communication, it was easier to finesse a late bet than you might imagine—especially before the Standard Time Act of 1918 established a national system of time zones. An alternative angle was industrial espionage, trading stocks based on information gleaned from corporate communications.
Yet another scam was simply to claim to be involved in one of these hustles, recruit “investors” who might like to get in on the game, and then make off with their money. (This play was demonstrated in the film The Sting, where the Depression-era con men convince their victim they have a wiretap racing scam going, using a fake betting parlor.) In the real world, news stories about wiretappers and their tricks played in these criminals’ favor: People were eager to believe they would make a killing on the third at Belmont, thanks to their new friend with a tap on the wire, and happily handed over their money. They thus joined the long tradition of saps who think they’re in on the con until they realize, too late, that they were the marks.
On the other side of the law, police started using wiretaps more extensively during Prohibition. As the cops listened in on gangsters’ operations, conflicting legislation became a real thicket. Some states, such as California, banned wiretapping; some permitted it only for police with a court order; some had no statutes on it at all. This diversity of rules sparked challenges when cases reached federal court and prosecutors elided the source of their information rather than acknowledge a wiretap that violated state law.
Such practices also provoked civil libertarian objections. Many people, including some legislators, thought wiretapping by the police was an unjustifiable intrusion, even when the targets were criminals. “For much of the twentieth century, wiretapping for national security was generally regarded as a necessary evil, a mild concession that individual citizens needed to make in order to combat dissent and subversion,” Hochman writes. “By contrast, most Americans disapproved of the prospect of wiretapping for crime control.”
Hochman traces a gradual shift away from this attitude, parsing various bills and Supreme Court decisions. Learning how our grandparents thought about privacy (or didn’t) makes this an especially illuminating text for modern privacy hawks.
The 1950s brought greater use of bugging instead of wiretapping; it evaded many existing statutes, since it didn’t involve “tapping” a line. It could run afoul of trespassing laws if the target’s property was entered, but simply placing a small microphone was not illegal in many jurisdictions. Transistor technology made this a more viable surveillance method, and bugs quickly became popular among private investigators as well as police.
The prospect of being “bugged” went mainstream in popular culture, becoming a common film plot device even as technical magazines touted the developments that made it possible. For much of the 1960s, public emotion was swinging toward privacy and against government surveillance. Unfortunately, the decade’s unrest stopped this movement in its tracks. The law-and-order faction became ascendant, renewing demands to surveil criminal suspects. “Even though the late sixties and early seventies seemed to herald a newfound national commitment to protecting privacy and limiting surveillance,” Hochman writes, “the era’s signature pieces of electronic surveillance legislation had the ironic effect of normalizing taps and bugs in areas of American life that would have seemed unthinkable only a decade prior.”
One result was the Omnibus Crime Control and Safe Streets Act of 1968. While this law placed restrictions on wiretapping and bugging by law enforcement, it also enshrined them as standard policing techniques. Wiretapping by other parties was supposedly illegal, but government enforcement was lax.
Meanwhile, a consumer market for surveillance devices emerged. Wiretap devices were sold as “answering machines.” What once was a remote eavesdropping device was reinvented as a “baby monitor.”
The agencies expanding the war on drugs also presented wiretapping as the heroic work of brave policemen rather than the dirty work of crooks or private eyes. When California legalized police wiretaps in 1988, a local police official told the Los Angeles Times: “Wiretaps are the answer. Let everyone know that Big Brother, as you call our government, will be watching the major drug dealers in this state.”
Laws are always lagging behind technology. When cordless phones were introduced in the ’80s, “cross-talk”—picking up the signal from another nearby phone—was a known issue that purchasers were warned about. This phenomenon led some courts to decide that users of these devices had no “reasonable expectation of privacy,” allowing convictions based on overheard conversations even when there had been no warrant to monitor them.
The tug of war continued. The Electronic Communications Privacy Act of 1986 was supposed to offer individuals more privacy. But eight years later, another law-and-order spasm produced the Communications Assistance for Law Enforcement Act, which handed more surveillance powers to the cops. After 9/11, the USA PATRIOT Act gave government agencies even more snooping authority. “National security” can be a very wide net, especially in a globalized world.
Today some of us are resigned to the idea that the National Security Agency might be listening to our calls, and it feels almost inescapable that someone, in the government or in Silicon Valley, is tracking our communications. We conduct meetings on Zoom, knowing that the company can monitor our conversations. Is this a return to the mindset of a century ago, when everyone knew a Bell operator could be on the line? Perhaps privacy was always an illusion after all.