Congress enacted the Wiretap Act in 1968 in an effort to combat organized crime while safeguarding the privacy of innocent Americans. However, the Act instead served to legitimize wiretapping, and its privacy protections have eroded over time. As a result, there has been a significant increase in wiretapping in the decades since the Act’s passage. As technology evolves, the Wiretap Act does less to protect Americans’ private communications from government interception. Nevertheless, policy makers see the Wiretap Act, with its “super-warrant” procedures, as the gold standard for statutory privacy protection. To the contrary, when considering how to regulate new and powerful surveillance technologies, advocates must not reflexively rely on the language of the Wiretap Act as a model for adequate privacy safeguards. They must consider whether, given the Act’s apparent flaws, it is possible to meaningfully balance the invasiveness of a new technique with the preservation of individual privacy. If so, drafters should focus on crafting statutory language that better implements the intended safeguards of the Act than the Act itself has. This Article describes the deterioration of the Wiretap Act’s protections and should serve as a cautionary tale to advocates as they propose new legislation in the face of modern surveillance tools.
Jennifer S. Granick et al., Mission Creep and Wiretap Act 'Super Warrants': A Cautionary Tale, 52 Loy. L.A. L. Rev. 431 (2019).