The Listeners: A History of Wiretapping in The United States
Author: Brian Hochman
Publisher: Harvard University Press, 2022. 368 pages.
Reviewer: Joseph Fitsanakis | December 2022
Few would take issue with the statement that the imprint of the telephone and its progenitor, the telegraph, on our civilization has been nothing short of substantial. It is therefore surprising to see how little attention these technologies have received from scholars. Brian Hochman’s well-crafted study, The Listeners, chisels away at some of the obscurity in the research, and renders the literature on the sociopolitical aspects of telephony a little less scant. Without being perfect, The Listeners is the kind of book I needed back in the mid-1990s, when I began researching the field of communications interception, and wiretapping in particular. It is this aspect of telephony, wiretapping, that makes Hochman’s book so unusual. Its subtitle, A History of Wiretapping in the United States, places it in a highly esoteric field of study. Yet it deserves to be read widely, especially by those interested in the evolution of the modern American surveillance state.
Hochman argues, convincingly, that the phenomenon of telephonic surveillance—one of numerous forms of electronic eavesdropping—should neither surprise nor shock observers. On the contrary, it has been a “constitutive element” of the telephonic ecosystem from its very beginning (p. 6). The realization that the security of communications could not be guaranteed was commonplace even in the 1830s, when the telegraph—history’s first large-scale electrical telecommunication system—began to emerge. It follows that wiretapping has a long history—in fact, “much longer than today’s battles over privacy and surveillance would appear to suggest,” as Hochman observes (p. 5).
That Hochman’s book should focus on the United States is reasonable. After all, Americans were pioneers in the art of wiretapping. The author’s claim that the American Civil War was “the world’s first armed conflict in which the use of electronic communications proved decisive” is contestable—some would argue that the Crimean War is more deserving of that title (p. 4). Yet, it is true that the warring sides of the Civil War found that they had to devise a “telegraphic strategy” of interception in order to survive the conflict (p. 42). By the end of the 19th century, when it was clear that America’s finance capitalism depended on the nation’s advanced telegraph network, the practice of wiretapping was already rife and entirely unregulated. Telephony emerged within that environment, which provides important context for Hochman’s astute observation that “[e]avesdropping was a feature of telephony from the beginning” (p. 55). Indeed, as the author explains, the privacy of telephone customers was an idea that came much later.
It is fascinating to think that the threats to user privacy in the early days of the telephone did not originate from the state, but rather from non-state wiretappers. These early (ab)users of the telephone system took advantage of the unregulated network to offer their services for hire to anyone who needed to listen in on a telephone subscriber’s conversations. The focus on non-state-sponsored wiretapping is indeed among this book’s greatest contributions to its subject. For, unlike much of the relevant scholarship, which views the interception of telephonic communications as a government-led phenomenon, Hochman shows that wiretapping was primarily practiced by non-state operatives for the first several decades of the telephone era. These non-state operatives treaded the thin line between legality and illegality, with “the lion’s share of [their] dealings occurring outside of official channels” (p. 204). Not only that, but organized crime syndicates, which were much faster than state agencies in adopting wiretapping as an operational tool, began to employ it against the state. With reference to the Prohibition era, Hochman explains that some of the earliest cases of Prohibition wiretapping involved bootlegging gangs monitoring the telephones of law enforcement agencies, rather than vice versa. When the government started wiretapping the bootleggers, it was in part because the bootleggers did it first (p. 68).
United States government agencies did eventually begin to employ large-scale wiretapping as an anti-crime tool. But, Hochman argues, that was not because of fear of communists and other radicals, as much of the standard literature on the subject suggests. Rather, it was the state’s response to organized crime, especially bootlegging, that helped institutionalize wiretapping in the 1920s. By the late 1920s, the increasing presence of government agents on the telephone network was occurring in the face of “the nation’s formidable tradition of civil libertarian activism, which over time found ways to thwart the government’s attempts to assert its right to tap” (p. 14). It was, therefore, Prohibition, not World War I or the First Red Scare, that “truly turned the telephone tap into an official tool of criminal investigation” (p. 68).
Hochman’s thesis is well-founded and agrees with the historical record (Fitsanakis, 2020, pp. 53–55). It is, however, difficult to accept the author’s claim that these same anti-crime concerns were responsible for the growth of American state-sponsored wiretapping during the Cold War (p. 202). That may be true in the domain of law enforcement. However, Hochman’s book pays little to no attention to the use of wiretapping in the domain of national security, as practiced by the likes of the National Security Agency, Defense Intelligence Agency, or Central Intelligence Agency. He concedes that the wiretapping activities of these agencies fall “outside of [his] account here,” but does not explain why (p. 213). Perhaps because the legal mandate of these agencies prevents them from spying on Americans? Yet, the history of the Cold War shows that they consistently failed to comply with such legal restrictions. Consequently, much of state-sponsored wiretapping in Cold War–era America was national security focused. Hochman’s book has little to say about that.
On the other hand, I was relieved and grateful to see that Hochman does not shy away from highlighting a major theme in 20th-century American wiretapping—one which the relevant literature blatantly ignores, with few exceptions: namely, the informal institutional interface between state agencies and the telephone industry, which facilitated much of (legal and illegal) wiretapping during the first 100 years of the telephone network’s existence (Fitsanakis, 2003). He correctly views the “corrupt alliance between telephone employees and the police” as residing at the center of a “code of silence” and “a gentlemen’s agreement [between the state and the] telephone companies” (pp. 26, 103). Why did that happen? Put simply, because, for the most part, telephone carriers belonging to the old Bell System and AT&T saw it as their duty to cooperate with government wiretap requests in the national interest (p. 230). It was also good business for what was then a private telephone monopoly:
AT&T used [its commitment to operating in the national interest] to justify its monopoly over the telephone industry and stave off federal regulation. Helping with wiretaps may well have been a way to stay in the government’s good graces (p. 230).
In practice, that meant that “anyone [in government] who wanted to find a line to tap could bribe a phone company employee for the relevant cable appearances, or even to direct access to the main frame” (p. 106). Telephone company employees would provide direct assistance to government agents, which included “providing law enforcement agencies with equipment, hardware, and even centralized network connections in the service of ongoing wiretap investigations”; they would even go as far as to “help detectives to pinpoint the correct wires to tap” (p. 234).
All that changed suddenly in the late 1980s, when the administration of President Ronald Reagan proceeded to break up the Bell System. That, Hochman writes, “ushered in an era of unprecedented competition, creativity, and innovation in the field of telecommunications” (p. 224). But the technological change that ensued, primarily the digitization of what used to be a largely analog telephone network, rendered age-old techniques of wiretapping obsolete, in some cases virtually overnight. For the first time since the late 1890s, government agencies found themselves unable to wiretap telephone conversations. Even worse, the literally thousands of new telephone service providers, which sprung up across the United States in response to Reagan’s deregulation revolution, were not interested in giving a helping hand to law enforcement. Time was money, and these new companies were in the business of competing in a cutthroat industry, not servicing the ‘national interest.’
What was to be done? In the final chapters of his book, Hochman recounts the history of the emergence of the 1994 Communications Assistance for Law Enforcement Act (CALEA), legislation that forced the deregulated telecommunications industry to design its digital networks in such a way as to make it technically possible for government agencies to wiretap. The author describes CALEA as “an extraordinary piece of federal legislation” (p. 265). What is more, he is markedly dismissive of it, as well as of the government’s efforts to implement it. He accuses the Federal Bureau of Investigation of concocting data and resorting to “scare tactics” to convince lawmakers and telecommunications industry leaders to support CALEA (p. 261). He avoids addressing a major question, however: given that the digital telecommunications networks are interfacing with the entire gamut of life in America, and given that the users of these networks utilize them to express the full spectrum of human activity—both legal and illegal—why should policing not have a presence on those networks? Why should there be a difference between off-line and on-line law enforcement activity, especially when criminals operate in both domains?
Hochman’s argument that American state-sponsored wiretapping paradigms have been based on racialized models of policing since the 1960s is interesting but requires more evidentiary support. The way this appears in his book feels almost as an afterthought. Moreover, it appears to contrast with the sophisticated analysis in other parts of his study. For instance, he contends that, historically, the American surveillance state has “by no means [been] monolithic or even coherent” (p. 98). In my view, that is an accurate and astute observation. Yet, toward the end of the book, we are told that that same surveillance state’s “wars on terrorists and immigrants have only reinforced the relationship between institutionalized electronic surveillance and the ‘surveillance of Blackness’” (p. 278). This appears oddly intentional, monolithic, and coherent in light of Hochman’s prior analysis.
Limitations aside, Hochman’s book constitutes a superb contribution to a topic that is in desperate need of scholarly attention. The inherent secrecy of the subject makes it difficult to research and often drives away academics. To make sense of the material, one often has to resort to reading between the lines of historical documents, for—as Hochman writes—“official accounts can only tell us so much” (p. 71). For this reason, and for many others, Hochman should be commended for his study. It is now up to us to build on it and continue to contribute to a worthy research topic that deserves far more attention than it has received.
References
- Fitsanakis, Joseph. 2003. “State-Sponsored Communications Interception: Facilitating Illegality.” Information, Communication & Society, 6(3): 404–429.
- 2020. Redesigning Wiretapping: The Digitization of Communications Interception. Cham, CH: Springer Nature.
Joseph Fitsanakis, Professor of Intelligence and Security Studies, Coastal Carolina University.
