San Diego Law Review

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The history of man’s attempt to communicate with his fellow man has been paralleled by another history–that of man’s attempt to overhear this communication. The art of overhearing or eavesdropping has proceeded on a step-by-step bases with the science of communication. Indeed, the furtive methods of the art have rarely failed to emulate the sophisticated means of the science. From passive overhearing of face-to-face conversation to sanguinary interception of homing pigeons by domesticated hawks, the progress of interception vis-a-vis communication has been carried into the twentieth century, utilizing methods and means beyond the imagination of the interceptor or eavesdropper of yesterday. This progress of communications-interception has not been without legal ramification. Recently, in the case of Berger v. New York, the Supreme Court was confronted with a situation that exemplifies the simultaneous attempt to overhear a conversation and yet remain within the framework of existing law. To a great extent, the decision of the Supreme Court in this case rests on the constitutional history of eavesdropping in the United States. Therefore, before attempting to analyze the holding in Berger, it would seem appropriate to view briefly its historical underpinnings.

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