In popular culture, too, wiretapping had a criminal air. Pulp-fiction “wired thriller” novels from the early 1900s, with titles like The Ghost Sons, followed the crooks’ antics during increasingly sensational phone taps. Hochman therefore argues that far from being a clandestine government affair, early wiretapping was primarily the work of private actors – not unlike the surveillance practices of big tech companies today – and the schemes of these early wiretaps were often well known.
It was prohibition, according to Hochman, that transformed wiretapping from a criminal enterprise into a crime-fighting tool. Bootleggers relied on telephones to coordinate liquor shipments, and Prohibition agents soon began to listen. In the famous Whispering Wires case, hundreds of hours of wiretapping transcripts were used to convict Roy Olmstead, the “King of the Bootleggers”. On appeal, he argued that Prohibition officers conducted an unlawful search in violation of the Fourth Amendment, and when Olmstead v USA When it came to the Supreme Court, the federal prosecutor handling the interdiction cases declined to argue it because she “completely disapproves” of “wiretapping tactics.” Despite his scruples, however, the court upheld Olmstead’s 1928 conviction. It ruled that there was no unlawful search because law enforcement did not physically search the homes or the offices. Officials had only listened.
In a famous dissent, Judge Louis Brandeis argued that Americans have a Fourth Amendment right to privacy on the phone, and subsequent legislation and policy debates have often leaned towards his view. The Federal Communications Act of 1934, for example, appeared to ban all wiretapping, although the wording of the relevant provision was ambiguous. In the 1940s, ACLU Director James Fly attempted to use the law to end all government wiretapping. A series of briefings, such as Samuel Dash’s influential 1959 report prying eyes, also kept government surveillance in the public consciousness. As recently as 1969, Hochman notes, less than half of all Americans believed that police should never be allowed to wiretap, even with a warrant from a judge.