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At the risk of stirring up controversy, the time has come to take a look at snooping. While the recent corporate spying scandal plays like a soap opera, it shouldn’t obscure the larger political question of whether the Bush administration should engage in electronic eavesdropping on U.S. citizens without a warrant. Personally, I haven’t a clue who’s right. But the whole thing highlights what a curious word “eavesdropping” is. It is, of course, related to “eave,” the edge of a roof, which comes directly from an Old English word efes (also yfes). But how do you get from a roof’s edge to electronic surveillance? It all begins with rain, which tends to fall on one’s roof and slide off the eaves. Yfesdrype (eavesdrip) is recorded as early as 1487 as a term defining the area around a house onto which water from the roof will fall. Because water from one man’s roof might fall on another’s property, Anglo-Saxon law recognized an easement of eavesdrip. In fact, ancient Roman law had the same doctrine, known as the right of stillicidium, presumably for the same reason � to stop busybodies from litigating over a little runoff from their neighbor’s roof. But if busybodies can’t sue, they’ll snoop, so the Anglo-Saxons also tried to stop people from standing just outside a house (within the eavesdrip) and listening to their neighbors’ conversations. This became the common-law misdemeanor of eavesdropping � which has faded from use. “Eavesdropping” remains a technical legal term; its contemporary meaning is, roughly, “to listen, or attempt to listen, to private conversations without lawful authority.” Which is why critics of the Bush administration refer to warrantless searches as “eavesdropping.” Whether or not a warrant is required for all eavesdropping, the word “warrant” is one of the most ubiquitous terms in legal language. You might not think of it as a household word, and yet it’s used as a noun, a verb, and a term of art for public officials, military officers, and private corporations. The word seems always to be lurking around the corner � sort of like that guy under the eaves. “Warrant” evolved from an Old French word (warant) meaning “protector or defender.” Around the thirteenth century, the word began to develop its sense as “permission from an authority that protects one from blame.” Thus, a sheriff armed with a search warrant could enter a home without fearing a lawsuit from the aggrieved homeowner. The notion of a warrant as a grant of authority gives us such useful terms as “arrest warrant,” “death warrant,” “warrant of commitment” (that is, committing a person to custody), and even the relatively obscure “interest warrant” � a written order from a company to its bank directing the payment of interest to a bondholder. Because they are such powerful tools, search warrants have been matters of debate for centuries. Until the middle of the eighteenth century, English procedure allowed for general warrants, which gave law enforcement officials open-ended authority to search a citizen’s home in the mere hope of finding incriminating evidence. In the American colonies, British officials used a type of general warrant known as a writ of assistance to search for smuggled goods. These writs caused a firestorm in the colonies; indeed, they are credited with being the first cause around which the Founding Fathers rallied. A valid warrant can authorize police to search for evidence of the commission of a crime as well as any loot allegedly taken in the crime; the latter is known as the “fruits of the crime.” If, however, it turns out that the police search was not authorized by a valid warrant, then � in what appears to be a phrase designed to confound law students � everything seized by the police becomes the “fruit of the poisonous tree.” This doctrine, first used by U.S. Supreme Court justice Felix Frankfurter in Nardone v. United States (1939), holds that any evidence that can be traced to an illegal search must be excluded from trial. It is not clear just how often the fruits of the crime have become the fruit of the poisonous tree. But it is, at least, food for thought. Adam Freedman is a New York � based in-house lawyer. A version of this article appeared in Corporate Counsel sibling publication New York Law Journal Magazine.

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