Online Surveillance: Remembering the Lessons of the Wiretap Act

76 Pages Posted: 23 Aug 2005  

Susan Freiwald

University of San Francisco School of Law

Abstract

This Article explores those features of electronic surveillance that have made it challenging to regulate effectively. In balancing interests, lawmakers must create a workable law for an exceedingly complex topic, rein in law enforcement agents without crippling them, and draw a line between prohibited and permitted conduct despite society's ambivalence about surveillance. This Article demonstrates that lawmakers met those challenges when they regulated traditional wiretapping, but they have failed to meet them in the online context. It argues that the law should extend the significant restrictions on wiretapping to online surveillance, just as judges did in the case of video surveillance in the 1980's. The similarities among online surveillance, video surveillance and traditional electronic surveillance strongly suggest that the legal framework that protects the privacy of telephones and private spaces should be extended to protect the privacy of the Internet.

Keywords: Online surveillance, electronic surveillance, internet, cyberspace, government surveillance, wiretap, email

Suggested Citation

Freiwald, Susan, Online Surveillance: Remembering the Lessons of the Wiretap Act. Alabama Law Review, Vol. 56, No. 9, 2004. Available at SSRN: https://ssrn.com/abstract=784125

Susan Freiwald (Contact Author)

University of San Francisco School of Law ( email )

2130 Fulton Street
San Francisco, CA 94117
United States
415-422-6467 (Phone)
415-422-6433 (Fax)

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