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In the United States 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. 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 argues that during the first ninety 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.
Since the opening of the first telephone exchange in 1878, the re- corder has maintained a close relationship with the telephone. Dating back to the two devices' nearly simultaneous market releases, this rela- tionship has provided a unique and complex set of questions in Fourth Amendment law. These questions have inspired an academic literature that explores the political history of telephone surveillance,1 the case law of wiretapping,2 and the role of telecommunications in Fourth Amendment jurisprudence.3 These studies have identified the techno- logical stories behind the law and highlighted the important actors in the construction of the law. This article builds on this literature by em- phasizing the cultural aspects of telephone surveillance and by treating surveillance laws as a negotiated order in American society. A study of negotiation requires a description of interaction, including the actors involved, the strategies and tactics they employ, and the outcomes of their actions.4
This article deploys the cultural software theory developed by Jack Balkin to show how a set of cultural tools (technologies, institutions, and cultural software) affected the design of laws governing telephone surveillance.5 Balkin's theory also allows for an analysis of individual agency in the formation of these...