In last night's episode of The Wire, McNulty and State's Attorney Rhonda Pearlman went to Judge Phelan asking for a wiretap of reporter Scott Templeton's phone. The judge eventually refused the request, telling McNulty that he needed more evidence that the (imaginary) serial killer was using multiple phones to make (imaginary) phone calls to the reporter. But given recent controversies about government surveillance, and reporters' rights, we got to wondering: Could the government wiretap our phone? After all, Phelan doesn't exactly shoot down the debate on constitutional grounds: "Never pick a fight with someone who buys ink by the barrel," he tells McNulty. David Simon famously knows what he's talking about (except on the meaning of the word "evacuate"), so is he right on this one?
Maybe so! There isn't a huge amount of precedent, but in 1986, a Circuit Court of Appeals judge named Antonin Scalia threw out a case in which New York Times reporter Hedrick Smith sued the federal government for tapping his phone during the Nixon administration; the court ruled that the government's national-security justification made the tapping legal. On the other hand, it's hard to argue that a (imaginary!) serial killer is a threat to national security. And wiretaps are traditionally directed at targets of investigations, not third parties, so maybe the government would need to make a higher showing to invade the privacy rights of someone not under investigation — especially if that wiretap could invade a privileged relationship, such as (thanks to Maryland's reporter shield law) journalist-source.
In short: Case law is unclear, but we bet the government would definitely try, and we bet Phelan will, in the end, grant McNulty's request. (Which he is only making to tap other Marlo Stanfield–related phones, of course.) We look forward to the government tapping our phone, and some hapless bureaucrat being forced to transcribe numberless conversations between us and publicists who have never read our blog that all end, "Can you just send me an e-mail?"