The Listeners: A History of Wiretapping in the United States by Brian Hochman
My rating: 4 of 5 stars
Hochman writes well and provides a mostly well-researched history of wiretapping in the U.S. He explains the fine points of the many Supreme Court rulings and other significant cases spanning the years. It took me back to law school and I learned a great deal. Many of the cases discussed were interesting in themselves, rather entertaining, in fact. Overall I enjoyed the book.
However, as a former FBI agent and Legal Adviser I found the book had two significant flaws. One is his assertion that federal courts “rubber-stamp most any wiretap application.” P.204. He cites statistics of a high rate of approval by judges as evidence. This overlooks the fact that such applications are scrutinized very thoroughly within the FBI itself. If a lawyer within the FBI and DOJ were to approve an application that was later denied, it would be a severe black mark, possibly career-ending. For this reason the internal controls are much more strict than the law requires. If an application makes it as far as a federal judge it is almost certainly a valid application with no justification for denial. Imagine how the author and media in general would react if such applications were regularly denied. The FBI would be excoriated for having a cavalier attitude to requirements of the law. For people like Hochman, if judges approve warrant applications, it’s a sign of lax judicial oversight, not of the FBI and police carefully doing their job properly. This demonstrates an anti-wiretap and anti-law enforcement bias on the author’s part.
The second flaw is the total lack of coverage of the largest category of wiretapping in law enforcement: consensual monitoring (CM). In the introduction, the author precisely defines wiretapping as “the act of intercepting or recording messages or voice conversations transmitted over electronic communications networks.” Perhaps he meant “and” rather than “or,” but that would be ironic since he ridicules lawmakers for that exact ambiguity in early laws on the subject. Assuming he meant what he wrote, the vast majority of wiretapping as he defines it, at least in my post-Hoover experience (1970s, 80s and 90s), consisted of recording with the consent of a party to the conversation. CM may or may not be considered intercepting, but it is certainly recording. This is legal without a warrant under federal law for anyone, and I think in all states when it is by, or in cooperation with, law enforcement. It is most often done by informants, co-conspirators cooperating to get lenient treatment, crime victims (e.g. kidnapping and extortion), witnesses, undercover agents, and even, as in Richard Nixon’s case, by the criminals themselves. One of my last CM cases was ordering the warrantless installation of a recorder on the telephone of the spouse of a kidnapped executive being held for ransom (with her consent, of course). The “wiretap” as Hochman calls it, was instrumental in leading to the rescue of the victim unharmed, capturing of the kidnappers, and recovering the ransom money. Hochman’s anti-wiretap diatribe seems to consider this an unconscionable violation of privacy. Oh, those poor kidnappers whose privacy was so badly violated; they didn’t get much privacy for the next twenty years doing hard time. By the way, they were planning to kill the victim once they got the money. I’d put a conservative estimate of the frequency of CM as upward of 20 times compared to that of Title III (court-ordered) recordings, perhaps ten times that. Wiretaps of both kinds are a necessary tool for protecting the public. In my 25+ years in the FBI I never saw any abuse of it. Hochman’s omission of CM is both indicative of bias, looking only for instances supporting his view of wiretapping as evil, and sloppy research by overlooking the vast majority of data in the field he purports to cover. Nevertheless, the book is a good read and makes intelligible to the lay reader what are some very technical points.