Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy‪.‬

INTRODUCTION In December 2005, the New York Times reported that the National Security Agency (NSA) had been engaged in warrantless surveillance of international communications--telephone calls, e-mails, etc.--made from within the United States. (1) The ensuing outrage included several lawsuits claiming that the government and various telecommunications companies had violated a host of statutes, particularly the Foreign Intelligence Surveillance Act (FISA), which establishes specific procedures for the government to follow prior to engaging in domestic surveillance for intelligence purposes. (2) At the same time, a few of the lawsuits and some commentators went even further, alleging that the NSA surveillance program violated the Fourth Amendment, in essence arguing that even Congress could not authorize such surveillance. (3) In August 2006, a federal district judge in Detroit agreed. (4) One of the unstated premises of the court's holding was that the Fourth Amendment protects the privacy of longdistance communications transmitted through a communications network, a premise that was unequivocally correct as a matter of current Fourth Amendment doctrine. (5)