Unplugging Bugging

Last June the Supreme Court seemed to impose so many restrictions on electronic eavesdropping that it was impossible to bug constitutionally. Last week the court ruled that eavesdropping was constitutional after all--within certain narrowly defined limits. In a refreshingly clean and straightforward opinion, Justice Potter Stewart knocked down a few outdated concepts and set out the court's new guidelines for permissible bugging.

To begin with, said Stewart, it makes no difference whether the bugging is in a private home or a public phone booth. The Fourth Amendment's ban against unreasonable search and seizure, he said, "protects people, not places." Stewart was equally unimpressed with the hoary doctrine requiring actual physical trespass before the Constitution is violated. Noting that today's electronic devices have completely eliminated any need to trespass, he held that the reach of the Fourth Amendment "cannot turn upon the presence or absence of a physical intrusion."

Without Warrant. The case in point concerned a small-time Los Angeles gambler, Charles Katz, whose calls from a public phone booth had been bugged by the FBI without a warrant and with a device that had been taped to the top of the booth to avoid the trespass disability. Stewart conceded for the sake of argument that the FBI agents did not bug until they had good reason to believe that Katz was using the phone to violate federal law; then they were careful to listen only to Katz and to stop as soon as they had collected what they were listening for.

"It is clear," Stewart went on, "that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized the very limited search and seizure that the Government asserts took place." The problem--and the reason that Katz's conviction was reversed--was that no warrant was obtained.

The 7-to-l decision almost certainly reopened the way to carefully controlled eavesdropping. What will now become known as the Katz rule holds that eavesdropping is constitutionally acceptable if the eavesdropper obtains a warrant by showing probable cause to a proper judicial authority. Then, during the bugging, he must observe the precise limits outlined by the court when the warrant was obtained, and finally, he must report back to the court on just what was overheard as a result of the surveillance. But the court did not say anything that would keep him from using any of the dozens of new, sophisticated devices.

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