Anti-wiretap statutes

In its narrowest sense, wiretapping refers to interception of telephonic voice communications. This method of eavesdropping has been around for as long as the telephone itself and has always been strictly regulated. As communications methods became more sophisticated, wiretapping methods followed suit, and laws regulating wiretapping had to be updated to cover cellular phones and electronic communications such as e-mail, fax transmissions, and digital-display pagers. Anti-wiretapping laws can be split into two categories: first, laws that prevent private citizens from intercepting another’s telecommunications; and second, laws that restrict law enforcement officials from doing the same.
The first category of laws is relatively straightforward: under federal law, it is illegal for any third party to intercept any telephonic or electronic communication between other individuals. However, if one of the parties to the conversation records or consents to the recording of the conversation, the interception of the communication is generally not barred under federal law, as long as the communication is not being intercepted for the purpose of committing a criminal or tortious act. This practice is also permissible under many state laws, but at least 11 states prohibit recording a conversation even if one of the parties consents to the recording.
Laws regulating law enforcement wiretaps are a bit more complicated and more controversial. By far the most important federal statute is Title III of the Omnibus Crime and Control Act of 1968. This law states that an order authorizing law enforcement wiretaps (known as a “Title III order”) will be issued only if the government can demonstrate (1) probable cause to believe that the interception will reveal evidence of one of a limited list of predicate crimes, with the suspected crime named in the application; (2) probable cause that the communication facility is being used in committing the crime; (3) normal investigative procedures have been tried and failed, are unlikely to succeed, or are dangerous; and (4) the surveillance will be conducted in a way that minimizes the interception of irrelevant communications. Every Title III request must be authorized by a United States Attorney. This is a relatively high burden on law enforcement: in order to obtain a standard search warrant, the government need only show probable cause that a crime has occurred. Law enforcement officials are routinely able to meet this burden, however; in 2004, for example, no state or federal judge denied a law enforcement request for wiretap authorization (Administrative Office of the United States Courts, 2004).
Title III has undergone two significant amendments since its passage. In 1986, Title III was amended by the Electronic Communication Privacy Act (ECPA), which extended the Title III restrictions to digital and electronic telecommunication. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act) eased some restrictions on wiretapping. For example, the PATRIOT Act allows law enforcement agents to apply for “roving wiretaps,” which permit agents to trace calls not just in the jurisdiction in which the authorization was ordered but anywhere in the United States. It also extended the “pen/trap” rule from telephonic to electronic communications. During 2004, there were 1710 intercepts conducted in the United States, an increase of 19 percent over the previous year. The vast majority of these intercepts (76 percent) were pursuant to drug investigations.
Other forms of wiretapping are less invasive because they do not involve intercepting the substance of the communication; thus, they are not as strictly regulated by law. For example, Title III restrictions apply only to intercepting the content of the message, and do not apply to intercepting the incoming or outgoing address of the communication. In the context of telephonic communications, this is commonly known as “tracing” the origin or destination of a call; law enforcement agents use a pen/trap device to determine the number a call is going to or the number that a call came from. In the context of electronic communications, such as e-mail, this might involve intercepting the “To” and “From” line of the message, rather than the entire message. In other words, for telephonic intercepts, a different device is used to trace a call, whereas for electronic communications, the same method is used to intercept the addresses and to intercept the communication, but the law enforcement agent only looks at the address lines.
Despite this difference, the legal standard for intercepting “addressing” information is the same irrespective of the type of communication that is intercepted. In order to receive authorization to intercept this information, the government must show that “the information likely to be obtained is relevant to an ongoing investigation.” This is a far lower standard than is required under Title III, and even lower than is required for a traditional search under the Fourth Amendment. (The Supreme Court has held that the Fourth Amendment does not apply to a wiretap that only intercepts addressing information.) Furthermore, if law enforcement officers fail to follow these requirements, the evidence can still be used against the suspect at trial, although the officers could be subject to criminal and civil liability if a court determines that the law enforcement officials did not act in good faith.
There are also separate rules for so-called stored communications: e-mails or voice mails that are stored on a remote server. As with using phone traces and intercepting e-mail addresses, recovering stored communications from third parties is not considered a “search” under the Fourth Amendment, so there are no constitutional restrictions on such surveillance. However, federal law creates different legal standards based on the type of communication being sought; for example, a warrant is generally required to recover unopened e-mail, while a subpoena with notice to the party is sufficient to recover opened e-mail or subscriber information.
Finally, there is the question of audio and video surveillance—the practice of installing a hidden microphone or camera in a home or office and recording suspects’ words and/or actions. Technically, these forms of surveillance are not wiretapping, because they do not involve intercepting electronic signals sent over the telecommunications network. They are, however, strictly regulated by the federal government; in fact, they are governed by the same strict standards as wiretapping. Audio surveillance (commonly known as “bugging”) is expressly covered by Title III, and although video surveillance is not, courts have held that the Fourth Amendment places the same high restrictions on video surveillance as Title III places on wiretapping.