Why a 1968 Wiretap Law Is the Right Blueprint for 2026 and Beyond

When people hear that I’m modeling a digital-property statute on a wiretap law older than the floppy disk, the reaction is usually a raised eyebrow. Fair. But 18 U.S.C. § 2510 et seq. — the federal Wiretap Act, the operative core of what lawyers call Title III — is quietly one of the most sophisticated pieces of drafting in the code, and it solves the exact problem digital property poses.

The problem is this: how do you write rules for something you can’t hold? A communication isn’t a car or a kilo of cocaine. It’s information in motion. And yet the 1968 Congress managed to regulate it across its entire existence.

Look at the structure. There’s a definitions section that does enormous work, because half of all wiretap fights are really arguments about what a word means. There’s a flat prohibition — you may not intercept, full stop, unless an exception applies. There’s an authorization regime that says who inside the government must sign off, and it’s deliberately high-level. There’s a procedure section with particularity, minimization, and sealing requirements. There are use-and-disclosure limits on what you can do with what you captured. There is a notice requirement, suppression remedy, and provision for civil damages. Lastly, Title III requires mandatory annual reports to Congress.

That’s not a rule. That’s a lifecycle, written into law. It tells the government what it must do to perform this invasive surveillance. But it also protects the interceptees.

Now hold it up against how the government handles a seized phone. It takes the device (collection). It images the storage (copying). It runs forensic tools across everything on it (analysis). It uses what it finds — sometimes for the crime in the warrant, sometimes for a different one it stumbles onto (use). And then, often, it keeps the full image indefinitely (disposition). Five stages. The wiretap law gives us mature, battle-tested language for two of them and almost nothing for the middle three.

So the blueprint isn’t a gimmick. It’s a checklist of everything a lifecycle statute needs, drafted by people who took intangible property seriously before most of us were born. My job over the next year is to walk that checklist section by section, keep what still works, and write the parts the 1968 Congress never had to imagine — because in 1968 nobody could copy your entire life in ninety seconds and keep it in a warehouse forever.

The wiretap drafters gave us the framework. The forensic era gave us the gaps. This blog lives in the gaps. Next in this series: the five verbs, and how to read everything I’ll publish here