Eavesdropping Legislation: Down-- but Not Out?

Is bugging constitutional? The question is so complex that the nine Supreme Court Justices last week delivered no fewer than six different opinions on the subject. In the end, the answer seemed to be that it is probably constitutional in theory, but perhaps constitutionally impossible in practice.

A concealed recording device authorized under New York's nine-year-old eavesdrop law had overheard Ralph Berger discussing his part in a bribery scandal that rocked the state's liquor authority four years ago. The question was whether or not the eavesdrop evidence was admissible against him. When the dissents and assents were sorted out last week, Berger was a free man and New York's law was knocked down.

The central problem raised was whether electronic eavesdropping constitutes an "unreasonable search and seizure" in violation of the Fourth Amendment. In order to get a search warrant, a policeman must show probable cause for the search. The New York eavesdropping statute included a similar requirement, but in the controlling opinion, Justice Clark found that it was too loose, considering the broad invasion of privacy made by a bugging device.

Success in Secrecy. "First," complained Clark, "eavesdropping is authorized without requiring belief that any particular offense has been or is being committed; nor that the property sought --the conversations--be particularly described. This leaves too much to the discretion of the officer executing the order. Secondly, authorization of eavesdropping for a two-month period," which the statute gives, is far too long. "Third, the statute places no termination date on the eavesdrop once the conversation sought is seized. Finally, the statute's procedure, necessarily because its success depends on secrecy, has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts."

This was all too much for Justice White, who fumed in his dissent: "Today's majority does not, in so many words, hold that all wiretapping and eavesdropping are constitutionally impermissible. But by transparent indirection, it achieves practically the same result by imposing a series of requirements for legalized electronic surveillance that will be almost impossible to satisfy." The real kicker, agreed Justice Black, is the court's final secrecy point. "Now, if never before, the court's purpose is clear," said Black. "Since secrecy is an essential, indeed a definitional, element of eavesdropping, when the court says there shall be no eavesdropping without notice, the court means to inform the nation there shall be no eavesdropping, period."

The majority does not actually say that, however, and it does imply that the "showing of special facts" could overcome the disability. The court's rule is confusing, but, says Columbia Law Professor Alan Westin, who has a book on the subject due to come out soon: "If my life depended on drafting an acceptable eavesdropping statute along the lines of the decision, I think I would have a pretty good chance."

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