Privacy: An Abbreviated Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping
Privacy: An Abbreviated Outline of Federal
Statutes Governing Wiretapping and
Electronic Eavesdropping
Gina Marie Stevens and Charles Doyle
American Law Division
Summary
It is a federal crime to intentionally wiretap or electronically eavesdrop on the
conversation of another without a court order or the consent of one of the parties to the
conversation. Moreover, in eleven states, it is a state crime for anyone other than the
police to intentionally wiretap and/or electronically eavesdrop on the conversation of
another without the consent of all of the parties to the conversation. The federal crimes
are punishable by imprisonment for up to five years and expose offenders to civil
liability for damages, attorneys’ fees, and possibly punitive damages. State crimes carry
similar consequences. Even in states where one party consent interceptions are legal,
they may well be contrary to the professional obligations of members of the bar. The
proscriptions often include a ban on using or disclosing the fruits of an illegal
interception.
Statutory exceptions to these general prohibitions permit judicially supervised
wiretapping or electronic eavesdropping conducted for law enforcement or foreign
intelligence gathering purposes. Similar regimes — proscriptions with exceptions for
government access under limited circumstances — exist for telephone records, e-mail
and other forms of electronic communications.
The first federal wiretap statute was a World War I provision enacted for the duration
of the conflict and designed to protect confidential government information (citation for
the authority for this and other statements made throughout this report may be found in
the long version of this report, CRS Report 98-326, Privacy: An Overview of Federal
Statutes Governing Wiretapping and Electronic Eavesdropping). The 1927 Radio Act
outlawed intercepting and divulging private radio messages. The 1934 Communications
Act extended the interception and divulgence ban to telephone and telegraph
communications.
No federal law condemned secretly capturing face to face conversations by using
hidden microphones or their ilk, and police and federal authorities employed them with
increasing regularity. Then in the late 1960’s, the Supreme Court held that the privacy
protection afforded by the Fourth Amendment’s warrant requirements enveloped all that
over which an individual might have a “justifiable expectation of privacy” — including,
under the appropriate circumstances, the individual’s conversations.
In anticipation of the Court’s announcement, several states had enlarged the powers
of their courts to issue wiretapping and/or electronic eavesdropping warrants. The Court,
however, found one of the more detailed of these constitutionally deficient. Congress
responded with Title III of the Omnibus Crime Control and Safe Streets Act to provide
a constitutionally viable procedure under which state and federal courts might approve
wiretapping and electronic eavesdropping orders. Title III at the same time outlawed
wiretapping and electronic eavesdropping except under court order or with the consent
of one of the parties to the conversation.
Title III regulated capture of the spoken word, it did nothing to protect the more
modern forms of communication — fax messages, e-mail, electronically transmitted data.
Congress recast Title III in the Electronic Communications Privacy Act (ECPA) to correct
this oversight. It responded to a Supreme Court opinion again — this one describing the
President’s inherent authority to approve warrantless wiretapping of purely domestic
threats to national security — with the Foreign Intelligence Surveillance Act (FISA).
FISA creates a judicial warrant procedure for foreign intelligence information gathering.
Crimes
Title III/ECPA bars the use of any mechanism (device), tape recorder included, to
intentionally capture the spoken word or any communication being transmitted
electronically (intercept wire, oral, or electronic communications) without the consent of
one of the participants or a court order, 18 U.S.C. 2511(1)(a),(b). This applies to all
telephone conversations whether a cell telephone is involved or not. It likewise applies
to all face to face conversations unless they occur in a public place or under other
circumstances where the speakers should reasonably have expected that their conversation
would be overheard.
Most states have similar statutes, and even when it is not a federal crime,
wiretapping and/or electronic eavesdropping by anyone other than the police is a state
crime (under mens rea requirements that vary from state to state) when done without the
consent of all parties to the conversation in California, Delaware, Florida, Illinois,
Kansas, Maryland, Massachusetts, Montana, Oregon, Pennsylvania, and Washington.
Beyond interception (wiretapping or electronic eavesdropping), it is a federal crime:
!to endeavor to illegally intercept;
!to procure another to illegally intercept;
!to disclose information gained from an illegal interception, knowing or
having reason to know that the information is the product of an illicit
interception;
!to endeavor to knowingly disclose illegally intercepted information;
!to procure another to disclose illegally intercepted information;
!to endeavor to disclose or to disclose information:
!knowing it was gained from a court ordered interception,
!having acquired the information during a criminal investigation,
and
!intending to improperly obstruct a criminal investigation by the
disclosure;
!to access stored e-mail communications or telephone records unlawfully;
!to use a trap and trace device or a pen register (machines that record the
origin of income or the destination of outgoing calls respectively) without
court approval or individual consent; or
!to abuse eavesdropping authority under the Foreign Intelligence
Surveillance Act.
Violators face imprisonment for up to five years, fines of up to $250,000 ($500,000
for organizations); and civil liability to actual or liquidated damages, attorneys’ fees,
possibly punitive damages, and administrative or professional discipline. The products
of illegal interceptions are inadmissible as evidence in either federal or state proceedings.
Procedure
Senior Justice Department officials or chief state or local prosecutors may authorize
an application for court ordered wiretapping or electronic eavesdropping as part of the
investigation of a list of predicate crimes. Applications and court orders authorizing
interception include specifics as to the individuals and the details of the crime, the
communication facilities or place where the interception is to occur, the communications
to be intercepted, the identities (if known) of the person committing the offense and of the
persons whose communications are to be intercepted, why alternative investigative
methods would be futile or dangerous, the duration of the proposed interception, steps
taken to avoid interception of innocent communications, the history of any prior
interceptions, the nature of third party assistance required and the identity of those to
provide it, and any additional information the judge may require.
A court may issue an order upon a finding of probable cause with respect to the
offense, the suspect, the conversation, and futility or dangers associated with alternative
methods. The orders are good for a maximum of 30 days, with the possibility of 30 day
extensions. Intercepted communications are to be recorded and the evidence secured and
placed under seal (with the possibility of copies for authorized law enforcement disclosure
and use) along with the application and the court’s order.
Within 90 days of the expiration of the termination of the order those whose
communications have been intercepted are entitled to notice, and evidence secured
through the intercept may be introduced into evidence with 10 days advance notice to the
parties. Information secured through a court ordered interception may be disclosed to law
enforcement or intelligence officers for the performance of their official duties and as
evidence during legal proceedings.
In emergency cases involving organized crime, threats to national security, or
immediate danger of death or serious injury, interceptions may be authorized by senior
officials before the issuance of an order. In such cases, court approval must be sought
within 48 hours and the interception abandoned and an inventory of the results turned
over to the communicants, if approval is denied.
Any federal prosecutor may approve an application for a court order authorizing the
interception of e-mail or other electronic communications upon probable cause of a felony
and the other requirements for issuance and execution of a search warrant. With regard
to stored e-mail or voice mail, communications in remote storage, and telephone and
service provider records, government officials may gain access to electronic
communications in electronic storage for less than six months under a search warrant
issued upon probable cause to belief a crime has been committed and the search will
produce evidence of the offense.
The government must use the same procedure to acquire older communications or
those stored in remote computer storage if access is to be afforded without notice to the
subscriber or customer. If the government officials are willing to afford the subscriber or
customer prior notice, access may be granted under a court order showing that the
information sought is relevant and material to a criminal investigation or under an
administrative subpoena, a grand jury subpoena, a trial subpoena, or court order. General
identifying and billing information is available to the government pursuant to an
administrative subpoena, a grand jury or trial subpoena, a warrant, with the consent of the
subscriber or customer, or under a court order issued with a showing that information is
relevant and material to a criminal investigation.
Federal government attorneys and state and local police officers may apply for a
court order authorizing the installation and use of a pen register and/or a trap and trace
device upon certification that the information to be produced is relevant to a pending
criminal investigation.
The approval procedure under the Foreign Intelligence Surveillance Act (FISA) is
the most distinctive of the wiretap-related procedures. First, its focus is different. It is
designed to secure foreign intelligence information not evidence of a crime (although the
prospect of securing evidence is not disqualifying as long as there is a measurable foreign
intelligence purpose); it operates in a highly secretive manner; and it is conducted entirely
before the judges of an independent court convened for no other purpose.
The contents of FISA surveillance application and subsequent order include the
identity of the applicant and an authorizing official; particularized information concerning
the facilities or locations involved in the interception and of the foreign agent or power
whose communications are the target of the interception; a detailed description of the
communications to be intercepted and a summary of the minimization procedures to be
followed; certification that the information cannot reasonable be obtained using
alternative means; whether the information relates to a foreign attack, sabotage, terrorism
or foreign clandestine intelligence activities; the means of accomplishing the interception;
a history of past related applications; the term of the interception; any other information
the judge requests.
FISA court judges issue orders approving electronic surveillance upon a finding that
the application requirements have been met and that there is probable cause to believe that
the target of the interceptions is a foreign power or the agent of a foreign power and the
targeted places or facilities are used by foreign powers of their agents. As in the case of
law enforcement wiretapping and electronic eavesdropping, there is authority to intercept
prior to approval in emergency situations, but there is also statutory authority for a foreign
intelligence surveillance interception without a court order when the communications
sought are limited to those among or between foreign powers or involve nonverbal
communications from places under the open and exclusive control of a foreign power.
The second of these is replete with reporting requirements to Congress and the FISA
court.
In addition to surveillance provisions, FISA authorizes court orders in foreign
intelligence cases for physical searches, the use of pen registers and trap and trace devices,
and for the release of business records and other tangible items. The physical search
sections mirror those governing electronic surveillance. FISA pen register and trap and
trace procedures are similar to those of their law enforcement counterparts in ECPA, but
with many of the attributes of other FISA provisions. The orders may be issued either by
a member of the FISA court or by a FISA magistrate upon the certification of a federal
officer that the information sought is likely to be relevant to an investigation of
international terrorism or clandestine intelligence activities. They allow the Attorney
General to authorize emergency installation and use as long as the application for an
authorizing court order is filed within 48 hours and restrict the use of any resulting
evidence if an order is not subsequently granted. The provisions for use of the
information acquired run parallel to those that apply to FISA surveillance and physical
search orders.
The USA PATRIOT Act and later the USA PATRIOT Improvement and
Reauthorization Act temporarily rewrote the FISA business records procedure that expires
on December 31, 2009. In its temporary form FISA orders may apply to any tangible
property relevant to foreign intelligence investigation. Recipients may challenge the
legality of the order and ask that its secrecy requirements be lifted or modified. As
additional safeguards, Congress insisted upon the promulgation of miminization
standards; established use restrictions; required the approval of senior officials for orders
covering library and certain other types of records; confirmed and reenforced reporting
requirements; and directed the Justice Department’s Inspector General to conduct an audit
of the use of the FISA tangible item authority.
Protect America Act. The Protect America Act (P.L. 110-55), which has since
expired, granted the Attorney General and the Director of National Intelligence the power,
under limited conditions, to authorize gathering foreign intelligence information,
including by electronic surveillance, (for up to a year) relating to persons believed to be
overseas. In order to exercise that power, the Attorney General and the Director of
National Intelligence were required to certify under oath that the collection effort
involved: (1) procedures reasonably calculated to assure that the information sought
concerned a person outside the United States; (2) communications to which service
providers or others had access; (3) a desire, at least in significant part, to gather foreign
intelligence information; (4) accompanying minimization procedures; and (5) no
electronic surveillance other than that directed at a person reasonably believed to be
abroad, 50 U.S.C. 1805b(a)(expired).
That having been done or in emergency situations with their oral approval, the
Attorney General and Director of National Intelligence might direct the communications
providers, or others with access, to immediately assist in the gathering of the foreign
intelligence information in a manner least disruptive of service to the target and under
confidentiality restrictions imposed by the Attorney General and the Director of National
Intelligence. The directive came with the promise of compensation at prevailing rates as
well as immunity from civil liability and was enforceable through the contempt power of
the FISA court. Recipients were entitled to seek judicial modification of a directive,
issued contrary to the statute or otherwise unlawfully, in the FISA court under expedited
procedures.
The FISA court was also tasked with the responsibility of reviewing the procedures
crafted to ensure that the authority was only invoked with respect to persons reasonably
believed to be found overseas. Should the court have determined that the procedures were
clearly erroneous, the government was free to amend them or to appeal the determination
initially to the Foreign Intelligence Surveillance Court of Review and then to the Supreme
Court.
Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008
(P.L. 110-261). P.L. 110-261 (H.R. 6304), signed July 10, 2008, addresses four FISA-
related matters. First, in a manner reminiscent of the Protect America Act, it provides
temporary authority to gather foreign intelligence information from or relating to overseas
targets. Second, it reasserts the exclusivity of FISA and Title III/ECPA as a basis for
governmental electronic surveillance. Third, it instructs the Inspectors General in various
agencies to conduct a review and report to Congress on the Terrorist Surveillance
Program. Fourth, it seeks to protect those who assist government surveillance activities
from civil liability.