Plaintiffs May Sue the Government Over Warrantless Spying

 
"The use of wiretapping and electronic eavesdropping emerged during the Prohibition era. Roy Olmstead was a suspected bootlegger whom the government wished to search. It placed taps in the basement of his office building and on wires in the streets near his home. No physical entry into his office or home took place. Olmstead was convicted entirely on the basis of evidence from the wiretaps. 
 
"In his appeal to the Supreme Court, Olmstead argued that the taps were a search conducted without a warrant and without probable cause, and that the evidence seized against him should have been excluded because it was illegally gathered. He also argued that his Fifth Amendment right not to be a witness against himself was violated. 
 
"By a 5-4 vote, the Court rejected his arguments and upheld the government's power to wiretap without limit and without any Fourth Amendment restrictions, on the grounds that no actual physical intrusion had taken place. 
 
"Olmstead's Fifth Amendment claim was also dismissed on the grounds that he had not been compelled to talk on the telephone, but had done so voluntarily.

 

"Thus the Court upheld the government's power to do by trickery and surreptitious means what it was not permitted to do honestly and openly.

 

"It wasn't until 1967, in a similar case involving gambling, that the Court overruled the Olmstead decision by an 8-1 margin and recognized that the Fourth Amendment applied to wiretapping and electronic surveillance. 
 
"Interestingly, these cases arose in the context of crimes like bootlegging and gambling. During the past twenty years, the majority of wiretapping and electronic eavesdropping by both state and federal officials has been in cases involving drug dealing and gambling. 
 
"Serious crimes of violence, such as homicide, assault, rape, robbery, and burglary, are rarely the target of electronic eavesdropping, which is not normally a useful tool in such cases. 
 
"From the beginning, when wiretapping was virtually invented to enforce laws prohibiting the sale of alcohol, to the late 1960s, when gambling was a major target, to the present, when the use and sale of drugs other than alcohol are the main target, these intrusive devices have been used mostly to enforce laws aimed at punishing and proscribing personal conduct that society deems immoral. 
 
"Because such conduct essentially involves private activities among consenting adults who are all likely to want to keep those activities secret, they are harder to investigate and prosecute than crimes like robbery or burglary, in which an unwilling victim will probably aid any investigation...the invasion of privacy inherent in wiretapping and electronic eavesdropping remains with us as part of the legacy of our attempts to criminalize personal conduct. 
 
"The other major use of electronic eavesdropping has been to punish political dissent. For decades, former FBI director J. Edgar Hoover used wiretaps and other electronic devices to spy on political figures and citizens not yet suspected of having committed a crime. He built vast dossiers on their political activities and personal lives. Special units of local police called 'Red Squads' did the same.

 

 

In January 2006, on the eve of the West Coast Walk For Life in San Francisco, CA, Carol Crossed of Democrats For Life (she wrote the foreword to my own book, The Liberal Case Against Abortion) spoke optimistically of Roe v. Wade being overturned.

 

When I asked her if Roe could be overturned without Griswold v. Connecticut (the 1965 Supreme Court decision which guarantees a right to marital privacy regarding the practice of contraception) being overturned as well, Carol froze, and couldn't answer the question!