The Law: Third-Party Snooping

When ex-Convict James A. White settled down at his pal Harvey Jackson’s house, the talk often centered on White’s drug-pushing activity. Jackson was an attentive listener. So were two federal agents, one hidden in Jackson’s kitchen closet, the other outside his home in Chicago.

Thanks to a radio transmitter strapped to Jackson, a police informer, the agents recorded those incriminating conversations, plus others between the two men in Jackson’s car, at White’s home and at a public restaurant. On the basis of the agents’ eavesdropping testimony, White was convicted of seven drug offenses, fined $35,000 and sentenced to 25 years in prison. A U.S. appeals court later threw out the conviction on the ground that the agents had failed to get a judge-approved warrant and therefore the bugging violated the Fourth Amendment’s ban on unreasonable searches and seizures.

Unpersuasive Argument. Last week a deeply divided U.S. Supreme Court saved the Government’s case, holding that neither state nor federal agents need warrants to rig their informants with bugs. Four Justices felt bound by a line of cases holding that an individual has no constitutional right to protection from informers. “Inescapably,” wrote Justice Byron White for the majority, “one contemplating illegal activities must realize and risk that his companions may be reporting to the police.” White found the addition of a hidden third party to the conversation an unpersuasive argument to challenge the constitutionality of the surveillance. According to White, if a companion may inform, he may also transmit. Justice Hugo Black concurred with the four because, in his opinion, “the Fourth Amendment simply does not apply to eavesdropping.”

Four Justices disagreed, arguing that where monitored meetings are prearranged, as in the White case, the Government has a minimal obligation to get a warrant before listening in. Justice John Harlan called third-party bugging a danger that could undermine even the most innocent confidential relationships between citizens. “Were third-party bugging a prevalent practice,” said Harlan, “it might well smother that spontaneity—reflected in frivolous, impetuous, sacrilegious and defiant discourse—that liberates daily life.”