For a New Liberty: The Libertarian Manifesto

Wiretapping is a contemptible invasion of privacy and of property right, and of course should be outlawed as an invasive act. Few, if any, people would condone private wiretapping. The controversy arises with those who maintain that the police should be able to tap the wires of persons they suspect as criminals. Otherwise, how would criminals be caught?

In the first place, from the pragmatic viewpoint, it is rare that wiretapping [p. 109] is effective in such “one-shot” crimes as bank robbery. Wiretapping is generally used in cases where the “business” is set up on a regularized and continuing basis — such as narcotics and gambling — and is therefore vulnerable to espionage and “bugging.” Secondly, we remain with our contention that it is itself criminal to invade the property of anyone not yet convicted of a crime. It may well be true, for example, that if the government employed a ten-million man espionage force to spy upon and tap the wires of the entire population, the total amount of private crime would be reduced — just as it would if all ghetto residents or teenage males were promptly incarcerated. But what would this be compared to the mass crime that would thus be committed, legally and without shame, by the government itself?

There is one concession we might make to the police argument, but it is doubtful the police would be happy with the concession. It is proper to invade the property of a thief, for example, who has himself invaded to a far greater extent the property of others. Suppose the police decide that John Jones is a jewel thief. They tap his wires, and use this evidence to convict Jones of the crime. We might say that this tapping is legitimate, and should go unpunished: provided, however, that if Jones should prove not to be a thief, the police and the judges who may have issued the court order for the tap are now to be adjudged criminals themselves and sent to jail for their crime of unjust wiretapping. This reform would have two happy consequences: no policeman or judge would participate in wiretapping unless he was dead certain the victim is indeed a criminal; and the police and judges would at last join everyone else as equally subject to the rule of the criminal law. Certainly equality of liberty requires that the law applies to everyone; therefore any invasion of the property of a noncriminal by anyone should be outlawed, regardless of who committed the deed. The policeman who guessed wrong and thereby aggressed against a noncriminal should therefore be considered just as guilty as any “private” wiretapper.