Wiretaps: Past and Present, Surveillance and Communications

My new book project is a cultural history of wiretapping and communications intelligence in the United States.  At this early stage of the game, my working hypothesis is that the history of wiretapping comprises a shadow history of communications in modern America.  Cultural contests over wiretapping, which date back to the 1860s, constitute contests over what it means to communicate in a networked society–a society in which information needs to travel across vast distances, and a society in which technologies of all sorts enable the human voice to traverse them.

Whenever I tell people that I’m starting to work on this project, they tend to ask me about two things: Edward Snowden and state surveillance.  This is understandable.  But it’s also worth explaining why I might want to focus my attentions elsewhere for the time being.

First off, Snowden: a news item that everyone seems to be following closely.  The revelations about the NSA’s data surveillance programs get more disturbing by the day.  But it’s crucial to note that Snowden isn’t the first American to blow the whistle on wiretaps.

Before Snowden, there were the members of the Church Committee, which in 1975 exposed four decades of illegal wiretap abuse on the part of the federal government.  Before the Church Committee, there were the investigators who wrote The Eavesdroppers (1959)—the first comprehensive history of wiretapping in America, and the first privately sponsored exposé of the laws and technologies that had made the interception of telecommunications possible for almost a century.  One of the lead authors of the study, a law professor named Samuel Dash, later went on to serve as chief counsel in the U.S. Senate’s case against Richard Nixon during the Watergate scandal.

dashSamuel Dash, bringing down the President who bugged everyone, including himself.

Before the authors of The Eavesdroppers, there also were countless journalists, novelists, and lawmakers who wrote about the interception of communications as an unwelcome byproduct of modern technological advancement.  This is how the American public first became familiar with a practice that otherwise seemed occult, shadowy, and strange.  One of the earliest cases of wiretap whistleblowing in the United States involved the Mayor of New York City, who in 1916 was found to have authorized police to tap the phones of five Catholic priests suspected of charity fraud.  Reporters at the New York Times broke the story, and their efforts led to the formation of a special legislative committee on wiretapping in the New York metropolitan area.  The committee eventually learned that the police forces had the ability tap any line in the five boroughs, and that law enforcement entities had been eavesdropping with the phone company’s cooperation since the mid-1890s.

nytimes_april 19 1916_p 4
Mayor Authorized Phone Spy on Priest,” New York Times (April 16, 1916), 4

Similar examples actually date back to the age of the telegraph.  One of the earliest cases of illegal wiretapping in the United States was a that of a crafty California stockbroker who was arrested in 1864 for intercepting the confidential telegraph messages of East-coast companies and selling them to subscribers around the country.  After the Sacramento Daily Union discovered the scam, the stockbroker was prosecuted and jailed in accordance with an obscure California statute against wiretapping, the first of its kind in the United States.  The practice was common enough for the state to have put the law on the books in 1862.

All of this is important to remember.  The Snowden story is part of a much bigger story about the interception of person-to-person communications that has waxed and waned in public visibility over the last 150 years.  For this reason, it’s probably best to take the long view.

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The second question I’ve been asked—whether my current work is about state surveillance—is a little harder to answer.

Scholars have been writing about wiretaps and bugs (n.b.: these aren’t the same thing!) from the perspective of legal history and surveillance studies for some time now.  Legal historians began writing about the interception of communications in the 1950s.  The earliest Supreme Court ruling on wiretapping, Olmstead v. United States, was of course handed down in 1928, and several states had legal prohibitions against the interception of telecommunications that date back to the late-nineteenth century.  But it really wasn’t until the 1950s that taps and bugs became the object of sustained historical attention on the part of legal scholars.  (I should find out why this is—my suspicion is that it has to do with a growing awareness of the gross inconsistencies between state and federal communications privacy statutes, but I’m not entirely sure.)

Surveillance studies scholars, on the other hand, began writing about wiretapping in the 1980s.  For the most part, this has to do with the popularity of Michel Foucault’s Discipline and Punish (1975; translated into English in 1977).  Academics in a variety of fields used Foucault’s ideas to show how modern instruments of state bureaucracy—from wiretaps and bugs to driver’s licenses and passports—both regulate individual behavior and produce social order.  The basic argument has cast a long shadow; it’s almost impossible to write about wiretapping today without making use of the language that surveillance studies scholars developed three decades ago.

Michel Foucault
further proof that everyone I’m now writing about was bald and wore glasses.

In any event, the important thing to know is that both camps–the legal historians and the surveillance studies scholars–have long regarded wiretapping as an important way to understand the evolution of the Fourth Amendment in the United States, the blurring of private and public spheres in the twentieth century, and the pervasiveness of state power in the modern era.  Yet while this may be an accurate story to tell about wiretapping, my sense is that it obscures a related story—a story about communications, a story about American culture’s ability to come to terms with the technological possibilities that it creates.  This is the story that I hope to tell.

What I mean here is this: technologies for eavesdropping on communications have developed just as rapidly as communications technologies themselves.  We like to say that the media that make it possible to talk, text, and email over vast distances always function smoothly and effectively—that they always afford maximum intelligibility and minimum intrusion.  But the truth is that this isn’t usually the case.  In fact, it hasn’t been the case for quite some time: third parties tapped the earliest telegraph wires, and the majority of the world’s communications systems were actually built to be overheard.  To American citizens in the 1950s, for instance, one of the most frightening revelations of The Eavesdroppers was that phone companies had been playing an instrumental role in the execution of law enforcement wiretaps since the age of Alexander Graham Bell.  Telecommunications systems were constructed with taps in mind, in other words—a fact that corporate and governmental entities deliberately obscured over time in order to maintain public confidence in a rapidly expanding national network.  While this tells us something about the pervasiveness of state surveillance, it also tells us something about how we go about the business of communicating in modern America.  Doesn’t it therefore make sense to write the story of wiretapping from the perspective of communications history?

This is the basic question that I’ve been toying with over the past few months.  We already know a lot about eavesdropping and surveillance.  But we don’t know a lot about how eavesdropping and surveillance have shaped the development of communications technologies and communication infrastructures.  Another way to ask the same basic question is this:

If telephones, radios, and computers tell most of the story of communications in modern America, what about induction coils, microwave bugs, and pen registers–all of which, invisible and undetected, played a crucial role in defining the legal and cultural limits of person-to-person communication in the twentieth century?  And what about the texts, from the wire fiction of the telegraph era to The Wire today, that have rendered these technologies visible to the American public at large?