Wiretaps & Electronic Surveillance

 

The history and the legislation enacted to become the comprehensive law that forms Title III is important to understand to get a better understanding of the laws that govern today. Title III, enacted in 1968, prohibited private citizens from using certain electronic surveillance techniques, but allowed law enforcement to continue these practices with certain restrictions. Congress allowed law enforcement agencies to conduct electronic surveillance on individuals as long as the equipment used did not violate an individual's Fourth Amendment right that protects them against unlawful search and seizure. Even with this restriction, the Fourth Amendment’s requirements were looser than those imposed by Title III. Due to this fact, Congress preempted State law and mandated that states who sought to enact electronic surveillance laws would have to make their laws at least as restrictive as Title III.  

 

One of the most restrictive aspects of Title III is the requirement that all Federal investigative agencies submit a request for the use of certain types of surveillance equipment for the use of non-consensual wire and oral communication devices. These requests must be submitted to the Department of Justice for review and approval before an application for interception can be submitted to a court of proper jurisdiction in order for a surveillance order to be approved. Title III specifically gives review power and authority to the Attorney General, but allows him or her to delegate this review process to certain high-level justice Department Officials such as the Deputy Assistant Attorney General for the Criminal Division (DAAGs).

 

The DAAGs may review and decide to approve or deny any wiretap applications (wiretapping is the act of intercepting telephone communications or installing a “bug” or microphone that intercepts oral, or face-to-face communications). Notably, not all crimes may be investigated through wire tapping. Only crimes described in 18 U.S.C. § 2516(1) of Title III may be investigated through these surveillance methods. On occasions where government agencies seek to intercept communications within a premises, or over an entire facility, a “roving” interception must be requested of the Assistant Attorney General or the Acting Assistant Attorney General for the Criminal Division, who will decide to either approve or deny the application.

 

In 1986, Title III was amended when Congress enacted the Electronic Communications Privacy Act of 1986. This act specifically included electronic communications as a new category whose interception was covered by Title III. Electronic communications were defined to include non-voice communications made over a network in or affecting interstate commerce such as text messages, emails, faxes, and other non-voice internet traffic and communications 18 U.S.C. § 2510(12).

 

Although amendments made in 1986 allowed any government attorney to authorize the creation of a surveillance application to Federal Court, rather than being submitted to the Department of Justice as previously required, the Department of Justice was still required to approve such applications for the first three years of the new amendments. Once the three year period had passed, the Department of Justice rescinded their approval requirement over electronic communications but only for digital-display paging devices. The Department continued the need for approval for all other types of electronic communications, which include text messages, phone calls, emails, text messages and any other type of non-voice electronic communication via computer.

 

There are severe penalties for the improper, abusive, and unlawful use and disclosure of electronic surveillance evidence, including criminal, civil, and administrative sanctions. This can also include the suppression of evidence, as it is imperative that Federal prosecutors and law enforcement agents understand when a review from the Department is required and what the approval process entails.

 

When Department review is required for the approval of a proposed application, the Electronic Surveillance Unit (ESU) of the Criminal Division’s Office of Enforcement Operations will conduct an initial review as a first step if the proposed application can move forward to the next step. In the review process the ESU will review the following:

 

  • The affidavit of an investigative or law enforcement officer of the United States who has the authority to conduct investigations of, or make arrests for offenses described in the Act. The Department will review the affidavit for facts that establish the basis for probable cause (required in Title III).

  • The application provides the basis of offense outlines in Title III that also outlines the basis for the court’s jurisdiction to sign an order that authorizes the request to use digital surveillance equipment.

  • A fully completed Title III cover sheet that bears the signature of the supervising attorney who reviewed and approved the paperwork. Effective March 19, 2012, policy required that all Title III paperwork be approved by a supervising attorney other than the attorney that affirms that he or she has reviewed the submission packet and approves it.

 

Roving Interception

 

According to the terms outlined in Title III, government agencies have the liberty to obtain authorization to intercept wire, face-to-face, and electronic communications of subjects who have been particularly identified without the premises or facilities where which the communications will be intercepted (an office, a hotel room, a vehicle). This practice is commonly known as “roving”. Specifically, the interception of oral communications does not require the government to provide specific locations when seeking approval for surveillance when it's not practical to do so. This is possible when it can be shown that there is probable cause to believe that intercepted communications would provide proof that the subject’s communications would be worth the surveillance in the specified facility.

 

When the government wishes to receive authorization for roving interception, the Department of Justice must grant the authority by way of the Attorney General, the Deputy Attorney General, the Associate Attorney General, an Assistant Attorney General, or an Acting Assistant Attorney General.

 

Emergency Interception

 

Title III contains a provision that allows a government agency to intercept a wire, oral, or other electronic communication without the use of a warrant. Under a specific provision of Title III (18 U.S.C. § 2518(7)), the acting Attorney General (AG), the Deputy Attorney General (DAG) or the Associate Attorney General (AAG) may specifically designate an official officer to determine if an emergency situation is sufficient cause to require the interception of a wire, oral or electronic communication before a traditional order can be obtained through the proper channels. As the provision specifies, an emergency situation must involve:

 

  • The immediate danger of serious bodily injury or death to an individual

  • Activities or conspiracy that threatens the interest in national security

  • Conspiratorial activity that displays characteristics of organized crime

 

Most likely, the only situations that will ever be deemed an emergency serious enough to grant an emergency interception without the use of a warrant is when the situation involves an imminent threat to life. For example, if authorities believe that a hostage is about to be taken, or an individual is about to be kidnapped, emergency interception would be acceptable because of the imminent threat to life. This emergency provision also requires that all circumstances are present (necessity, probable cause, specific location) in order for an emergency interception to be authorized. This authorization can only come from the acting AG, or the AAG. Once this authorization has been granted, the law enforcement agency may proceed with the emergency Title III interception. The agency has 48 hours from the time the authorization was granted to obtain a court order that approves the interception.

 

The affidavit that supports that application for the interception order must contain only the facts known by the AG, the DAG, or the AAG at the time of his or her approval. This must be accompanied by written verification from the agency requesting the authorization that includes the date and time of the authorization. Even if an agency receives permission from the AG or other qualified individual, if they fail to obtain the court order within the 48 hour period, any interceptions made would be deemed illegal.

 

Video Surveillance, Closed Circuit Television, Department of Justice Appropave Required When there is a Reasonable Expectation of Privacy

 

Pursuant to Order Number 985-82 by the Department of Justice, specific officials of the Criminal Division have the authority to review surveillance requests for law enforcement purposes when there is a constitutional expectation of privacy that requires judicial authorization. The authority was given to the following individuals:

 

  • Assistant Attorney General

  • Any acting Deputy Assistant Attorney General

  • The Director and Associate Directors of the Office of Enforcement Operations

 

When court approval for video surveillance is deemed necessary, approval should be granted via an application and order as specified in the All Writs Act. Both should be based on an affidavit that effectively establishes probable cause to believe that evidence of a Federal crime will be obtained through such surveillance. This affidavit should also comply with specific provisions that lie in Federal surveillance statutes. Department policies require that a video surveillance application and its corresponding order be filed separately rather than as one application. However, when needed, the same affidavit may be filed with both the order and the application as support documents.

 

The Use and Unsealing of Title III Affidavits

When the Federal government terminates an electronic surveillance investigation that was initiated under Title III, it must maintain all applications and orders under seal. This includes affidavits, orders, and any other supporting documents that accompanied each respective surveillance application that was filed to attain such surveillance orders.

 

These affidavits being sealed ensures that the integrity of the surveillance materials and to protect the privacy rights of those implicated as a result of such a surveillance investigation. These applications are to remain sealed and can be unsealed only pursuant to a court order in which good cause or the interest of justice has already been proven.

 

The government's legal representation should refrain from attaching Title III affidavits or other material as examples to search warrant affidavits, complaints, indictments or trial briefs, however, he or she may use information from these materials or interceptions in other documents such as search warrant affidavits, complaints, indictments and trial briefs. When using this information, the government attorney must make sure not to disclose sealed information from the Title III  affidavits or interceptions that may jeopardize ongoing investigations by naming persons not yet charged in a crime. When materials are sought by the council of a defendant in a Title III case or other person implicated in such materials, the attorney should seek a protective order (pursuant to Rule 16) for his or her client that will forbid public disclosure of such sensitive material. Such a protective order should deny or defer the discovery of sensitive information such as affidavits and applications that reveal information on ongoing investigations that would jeopardize their success.

 

Consensual Monitoring -- General Use

 

Section 2511(2)(c) of Title 18 describes that it is not illegal for an individual acting under the color of the law to intercept a wire, electronic, or oral communication when a person is a party or one of the parties who previously gave consent for such interception. Additionally, consensual interceptions don’t need to be made as directed under Title III. In 1986, new laws (the Electronic Communications Privacy Act of 1986 permit government agents who are acting within the consent of a party to engage in warrantless interceptions of telephone, oral, and electronic communications. Title III, by definition of its oral communications, allows Federal agents to also intercept oral communications without a warrant when the two communicating parties have no justifiable expectation to privacy. There are no similar exceptions in the legal definition of wire communications, therefore no other nonconsensual interception of wire communication is permitted, regardless of the parties’ expectation of privacy (unless there is a court order that allows the interception).

 

These interception techniques have proven to be effective and reliable. The Department of Justice particularly encourages Federal agents to use these methods to gather evidence of Federal violations, to protect the safety of informants and undercover law enforcement agents, or fulfilling other important needs. Although the use of such surveillance is encouraged by the government due to its high efficacy and reliability, their use is also sensitive. Due to their sensitive nature, wiretaps must remain the subject of close self-regulation by the agencies who employ them. Guidelines developed by the Department of Justice for the use of consensual surveillance for investigative purposes, and do not apply to the consensual monitoring of telephone conversations and radio transmissions. Originally, it was left to each individual law enforcement agencies to develop adequate internal guidelines for the use of such assets as investigative tools.

 

Court Authorized Disclosure of Intercepted Communications in Civil Litigation

 

The use and disclosure in relation to civil litigation over wire, oral, or electronic communications that are intercepted are to be pursuant to Title III laws. Generally, a court order is required before such sensitive information is used in civil proceeding or when being used in the preparation for the filing of a civil action.

 
 
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