In June 1924, two men talked their way into a Seattle Office building. One man was an investigator, the other was one of the first phone wire tappers. The enemies of Seattle mayor Edwin Brown hired both. The unnamed parties wanted dirt on the mayor and his associates. One of those associates was the famous Seattle bootlegger Roy Olmstead.
The phone tapper and private detective were able to listen to some interesting conversations, a corrupt cop telling the bootlegger of raids, requests for liqueur delivery, etc. The detective saw an opportunity, contacted Olmstead, and offered to destroy the transcripts for $1,000. Olmstead ignored the detective. The phone tapper went to the Feds, was deputized, and tapped more phones. Transcripts of conversations were used to convict Olmstead for violations of the Volstead Act.
The Olmstead case was one of the first examples of phone tapping used to convict a person of a crime. What does this have to the NSA? We should realize that with any new technology, whether it is the telephone of the 1920s or the Internet of the 2000s, governments will aggressively monitor new forms of communication. The US is not the only government who is carrying out mass surveillance of Internet traffic. You have to admit, we all had a hunch that something was going on, the controversy is that we now know the details of these programs.
Ultimately, Olmstead appealed his conviction, arguing that the lack of judicial approval of the wiretap was a violation of his rights under the 4th and 5th Amendment. The Supreme Court voted 5-4 that it did NOT violate the defendant’s rights (this was overturned in 1967). In his dissenting opinion, Associate Justice Louis Brandeis was the first justice to attempt to define a general right of privacy. Will the NSA leaks lead to a profound change in the law? History will only tell if the disclosure of mass surveillance programs will have an effect on the American concept of the right to privacy.