Negotiated Order: The Fourth Amendment, Telephone Surveillance, and Social Interactions, 1878–1968

Abstract

In the US, the words ‘telephone surveillance’ bring to mind contemporary security concerns about smart phone tracking, the NSA warrantless wiretapping scandal, and the telecommunications provisions of the Patriot Act. Yet telephone surveillance is as old as telephony itself, dating back to the nearly simultaneous commercialization of the telephone and phonograph in 1878. First put to use by users, so they would have a written record of business meetings held over the phone, recorders were later put to use by police for surreptitious recording of criminal suspects’ conversations. This article examines telephone surveillance by American law enforcement agencies from the inception of telephone service to the passage of the Federal Wiretap Law in 1968, focusing on the challenges an advancing, proliferating, and shrinking technology posed for Fourth Amendment law. To highlight the technological, institutional and cultural interactions that have shaped Fourth Amendment jurisprudence, the article deploys Jack Balkin’s theory of cultural software and Anslem Strauss’s concept of a negotiated order, and brings together major cases, federal legislation, and evidence of government surveillance. The article shows how telephone surveillance brought the Fourth Amendment into prominence and inspired many of its most contentious debates; the article argues that during the first 90 years of telephone usage in America, laws on search and seizure developed not from constitutional consistency or logic, but as the result of a complex negotiation process involving new media and human agency.