‘Dirty Business’ Is Stealing Our Trust

The taping of phone conversations was best described back in 1928 by Supreme Court Justice Oliver Wendell Holmes as “dirty business.”

When Holmes was writing, electronic surveillance or “wiretapping” was available only to large government agencies. Now it has become democratized. Anyone can buy tiny, inexpensive devices that easily permit intercepting and recording in-person or telephone conversations for the weakest of justifications. If something or someone bothers you, just run out to the nearest electronics store and buy a voice-activated listening device for a few dollars. That’s what Linda Tripp did. It’s what scheming, disgruntled spouses do, what parents suspecting drug use do, what corporate detectives do and what owners of convenience stores do when they’re too lazy to implement meaningful security procedures.

In the Watergate years, our focus was on governmental wiretapping. But federal law really restricts law enforcement more than we realize. The law requires that wiretapping be used by law enforcement as a last resort and only to investigate serious crimes. The number of state and federal law enforcement taps has never exceeded 1,200 a year. It’s true that the Clinton administration has broken all records for using the technique, having employed it more times in 1996 than in any year since the law was enacted in 1968, twice as much as the Reagan administration did and 70% more than the Bush administration. The huge increases in the Clinton years have escaped the attention of the press, Congress and civil libertarians, who in the 1970s fretted over single-digit increases.

Still, three-fourths of the federal wiretaps are concentrated in two areas, New York City and its suburbs and south and central Florida, and three-fourths are installed to catch narcotics dealers. The average American doesn’t need to worry about being wiretapped by his or her government.

Covert monitoring by one private party against another, as Tripp did of Monica Lewinsky, is another story. There are no statistics on the extent of it; we can only guess from the millions of dollars in the sales of listening devices.

Most Americans, probably including Tripp, don’t have a clue about the legality of this. By federal law, a person must have the consent of at least one party before intercepting or tape-recording a conversation. The law applies to in-person conversations, as well as phone calls. The manufacture, sale or advertising of any electronic device “primarily useful for the purpose of surreptitious interception” is illegal. Of course, if a device is primarily useful for recording your kid’s school play or taking phone messages, it isn’t illegal. Prosecutions for violations of this part of the law have been extremely rare.

And, disclosure of the contents of an illegally recorded conversation, is a federal crime. Thirteen states, including Maryland, where Tripp did her listening, and California, require the consent of both parties. Just a year ago, a couple in Florida who secretly recorded a conversation among House Speaker Newt Gingrich and his congressional colleagues were prosecuted for breaking the law.

We suffer the loss of trust when using the telephone or even when chatting face-to-face with supposed friends. We suffer the diminution of privacy, the protective cover we all need to expand our minds, take risks, develop spiritually and make mistakes without being accountable to the outside world.

If the telephone is no longer an instrument for candor, our commerce, our diplomacy, our educational system and our journalism no longer function effectively. The outcome of the Cold War should teach us that societies in which there is no trust among friends and neighbors cannot thrive.