CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, November 13, 2023

Dripps on Eavesdropping and the Fourth Amendment

Donald A. Dripps (University of San Diego School of Law) has posted Eavesdropping, the Fourth Amendment, and the Common Law (of Eavesdropping) (William & Mary Bill of Rights Journal, Vol. 32, 2024, Forthcoming) on SSRN. Here is the abstract:
Judges and scholars have long debated the Fourth Amendment’s application to eavesdropping, and the amendment’s relationship to the common law torts of trespass and false arrest. Remarkably, neither the jurisprudence, nor the commentary, has given more than cursory consideration to the common law of eavesdropping. This Article is the first to consider in detail the common law of eavesdropping as it relates to the Fourth Amendment.

The Fourth Amendment’s text does not protect “persons, houses, papers and effects” but rather protects the right to be secure in persons, houses, papers and effects. The common law treated eavesdropping as a violation of the right to the security of the home. Trespass actions were part of these protections, but only a part. The prevailing focus on founding-era tort law supports interpretations based on private-law property rights, enforced ex post by actions for damages. The common law’s indictment of eavesdroppers as a public nuisance points in very different directions.

Eavesdroppers could be arrested in flagrante as “persons of ill fame” under an ancient English statute. Eavesdroppers could also be indicted as a public nuisance under the common law of crimes. These doctrines were well-established in America as well as in England.

Eavesdropping was thought to threaten the security of all the homes in the community. The public-nuisance offense was not completed by clandestine listening alone. Indictments had to allege repeated offenses and public dissemination of the overheard conversations. There was no standing requirement, as required to recover damages in tort or obtain an injunction. The remedy was not retrospective damages, but fine and jail unless the eavesdropper recruited sureties to post bond for the eavesdropper’s good behavior going forward.

Reading the Fourth Amendment by the light of the common law does not lead inevitably to a property-based model. The common law’s treatment of eavesdropping indicates that the sanctity of the home was protected against clandestine surveillance, not just against physical invasion. The common law of crimes saw the collection and the dissemination of private information as distinct legal wrongs. The remedy aimed to prevent future violations, rather than to redress completed ones. Important implications follow for the difficult issues that face us today when we try to apply the Fourth Amendment in a digital world.

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