William & Mary Bill of Rights Journal
Abstract
This Article addresses two of the most momentous and controversial issues raised by the Fourth Amendment. These issues are closely related but distinct. First, is eavesdropping a “search” subject to the Fourth Amendment? Second, are Fourth Amendment “searches” limited to the interests against physical intrusion protected by the common-law torts of trespass and false arrest?
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Remarkably, the debate about the Fourth Amendment, the common law, and eavesdropping has almost completely ignored the common law of eavesdropping. This Article is the first to consider the Fourth Amendment in light of an in-depth examination of the common law’s prohibition of eavesdropping as a public nuisance. The evidence presented here shows that the prohibition of eavesdropping was an integral part of the common law’s protections for the security of the home. Insofar as the Fourth Amendment incorporates Founding-era common-law protections for the security of the home, those protections were not limited to physical invasions.
This abstract has been taken from the author's introduction.