Wiretapping

Law enforcement uses a variety of tools to perform its functions, including conducting investigations and using wire and net taps, called trap-and-trace devices, to monitor or eavesdrop on suspected criminals. Use of such tools raises questions about privacy and the use of information acquired under a wiretap.
Generally, there are three kinds of devices used by law enforcement to eavesdrop: wiretaps, net taps, and Data Collection System 2000, formerly Carnivore. A full-content wiretap allows the government to intercept, listen to, and record telephone calls. A net tap is similar to a telephone wiretap, except that the government is intercepting data transmitted over wire or through the air. Net taps can access and record both the pen register, which is used to identify which telephone has been called by another phone, and the full content of the data being transmitted. Net taps rely on a variety of filters to search and find targeted information.
Carnivore, renamed Data Collection System (DCS) 2000, is another type of wiretap that the Federal Bureau of Investigation (FBI) uses but has not disclosed much about. Carnivore is a packet-filtering program that allows someone to filter and intercept electronic mail. Carnivore has “sniffers” that search a computer network for usernames and passwords, using sophisticated filters to sift through packets of data and siphon out the relevant information from the irrelevant. Carnivore has both pen register and full-content wiretap capabilities but must be physically installed at the site, usually that of an Internet service provider (ISP).
The right to privacy or the “right to be let alone” is a civil liberty that protects a person from unreasonable searches and seizures by the government. This right is protected by the Fourth Amendment to the U.S. Constitution. Statutory privacy protections generally apply to government action, which means that private companies have much more latitude in what they can do without implicating privacy protections. There are also state rights to privacy and state and federal civil rights statutes that can be enforced to protect privacy interests.
The existence of a recognizable privacy interest turns on whether and the degree to which a person has a reasonable protection of privacy in the place or thing being seized or searched. The U.S. Supreme Court relied on a two-pronged test in the landmark case Katz v. United States, 389 U.S. 347 (1967), to establish a privacy interest: (1) Does the person have a subjective expectation of privacy in the area that is being searched, and (2) Is the expectation of privacy one that society is prepared to recognize as being reasonable? While there is a reasonable expectation of privacy in some types of communications, such as in letters and telephone calls, courts have generally held that there is no reasonable expectation of privacy in email messages or in activities that occur at school or at the workplace, despite the use of a password.
Electronic monitoring at the workplace is common and permissible as long as employees are given advance notice or there are exigent circumstances, such as if the employer has reason to believe the company’s interests are in jeopardy. Most employers should have a stated policy on randomly monitoring telephone calls for quality assurance, accessing and reading employees’ e-mails, and owning computer files of employees. Notice can be provided in employee manuals or other documents that are given or made available to employees. Electronic monitoring and eavesdropping at the workplace have been justified because many workplace crimes, including computer crimes, are committed by employees. Employers are required to post their privacy policy on company websites.
The basic statute regulating wiretaps and electronic surveillance is the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 62511, also known as the Electronic Communication Privacy Act of 1986 (ECPA). ECPA provides broad statutory privacy protection for wireless, wire, and electronic communications and storage of digitized text information, such as e-mail. ECPA prohibits government agents and third parties from intercepting voice and e-mail, accessing and reading e-mail or computer files, and accessing customer records from service providers without the authorization of one of the parties or a court order. Each intrusion is considered separately and therefore requires an independent justification.
Failure to get the required order means that the fruits of the illegal search may be inadmissible in a criminal prosecution. ECPA also authorizes recovery of civil damages for violations of the act. However, if the information is not used for prosecution, there may be no effective remedy for persons whose rights are violated. This issue becomes critical when one is trying to access information for investigation or interrogation purposes that could lead to other information that would be admissible in a criminal prosecution.
To get protection under ECPA, a person must show not only that messages are private, but also that the expectation of privacy is reasonable. ECPA covers only state action and does not cover interception of business e-mail by private persons, often used in commercial espionage. There are three exceptions to ECPA protection: (1) when one party consents; (2) when the provider of the communication service can monitor communications; and (3) when the monitoring is done in the ordinary course of business. ECPA protects both the sender and receiver of public mail and online services and has been extended to electronic communications, bulletin boards, and remote computer services. Statutory damages are limited to $1,000 for most offenses by government officers.
To conduct a wiretap or net tap, the government is required to show probable cause of criminal activity or probability that a crime will be found. An interception order requires more justification than a search warrant because the level of intrusion into a person’s privacy is greater. A search warrant is required to access a physical space, a computer, or other device and to read e-mail or the contents of a communication. Application to the court requires the government to (1) identify who is requesting the order; (2) state the circumstances justifying the order, including the offense and the nature and location of the facilities where the communication is intercepted; (3) state other methods that have been tried and that have failed, or state why they have appeared to fail or seem too dangerous; and (4) specify the period of interception. The typical period of a wiretap is 30, 60, or 90 days. However, courts provide greater scrutiny the longer the period.
Law enforcement also has the right to conduct surveillance, including electronic eavesdropping, wiretapping, physical searches, and pen trap and trace, to collect foreign intelligence under the Foreign Intelligence Surveillance Act of 1978 (FISA). Under FISA, law enforcement may collect foreign intelligence to detect espionage, sabotage, terrorism, and related hostile intelligence upon a finding of probable cause that the surveillance target is a foreign power or an agent of a foreign power. The effect is that FISA created a limited exception to the probable cause rule if the government is gathering foreign intelligence. There is a special court that reviews FISA applications.
The passage of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act) broadened existing law enforcement tools, particularly in the area of surveillance and the Internet, and amended several sections of existing statutes related to computer crimes, money laundering and asset forfeiture, immigration, and the collection of evidence. The act also allowed broader use of information obtained from grand juries and wiretaps by law enforcement and government officials.
The Patriot Act has neutralized some of the protections in ECPA by making it easier for law enforcement to get customer records from service providers. The FBI and other agencies can demand that service providers provide access to customer records with a statement certifying that the information pertains to an investigation, without a court order. The Patriot Act also permits voluntary disclosures and cooperation by private companies with law enforcement.
Under Sections 216, 219, and 220 of the Patriot Act, law enforcement has nationwide authority to conduct search warrants for e-mail and to expand voice wiretaps so that suspicion of a crime is sufficient cause to get a wiretap of any telephone, computer, or cell phone used by a target in an investigation. This is known as a “roving wiretap” and only requires the identification of the target. The national scope of the act was intended to minimize the jurisdictional boundaries of investigating a crime and allow investigators to go through the same process for collecting warrants, but only once.
The Patriot Act also amended FISA to permit secret wiretaps without authorization whenever law enforcement says that its investigation also has a “significant foreign intelligence purpose.” This major change means that wiretapping for foreign intelligence purposes only requires showing that the target is an agent of a foreign power. It is not necessary to show that the target has engaged in criminal activity. A U.S. citizen is an agent if he or she knowingly engages in espionage for a foreign power or intelligence service and is about to violate any U.S. laws. The effect of this amendment allows the government to initiate wiretaps under FISA’s lower standard when the investigation’s primary purpose is to collect criminal evidence. Such information can then be shared with other government agencies, and the target may never know about it because notification is not permitted, even though targets of criminal searches and wiretaps must be notified eventually of the search. Many critics have argued that the Patriot Act amendments to FISA have blurred the distinctions between spying on foreign agents and spying on U.S. citizens.
The Patriot Act has been criticized by civil libertarians as eroding Fourth Amendment protections against unreasonable search and seizures. The government has defended the act as being necessary to fix certain problems in existing statutes that treat access to wire and wireless communications differently from electronic communications and to expand certain investigators’ tools to address the threat of terrorism.
Civil libertarians argue that the act reduces the search warrant requirements and allows law enforcement to gather U.S. and foreign intelligence and use illegally obtained information abroad in domestic prosecutions. The concern is over lack of appropriate reporting requirements and checks and balances to ensure against misuse and abuse that encroach upon the rights of U.S. citizens.
The effect is that investigators’ powers are broadened without the same level of judicial review as previously provided to U.S. citizens. The fear is that these expanded powers will enable the government to conduct massive surveillance and detain Americans without proving they are terrorists, similar to the government’s response during the McCarthy era to the threat of Communism.
Such suspicions seem to have some credibility, following disclosure that in 2001 President George W. Bush secretly authorized the National Security Agency to electronically spy on U.S. citizens placing calls overseas. Some credit this disclosure as being responsible for Congress authorizing only a five-week extension of selected provisions of the Patriot Act that were due to expire on December 31, 2005, under the act’s sunset provisions. Among the most controversial of these provisions are the roving wiretap and informational sharing between the FBI and the Central Intelligence Agency (CIA). In the end, however, Congress voted to extend the sunset provision on “roving wiretaps.” Yet despite this action, whether such provisions will be extended and for how long is unclear. However, it is clear that the debate over balancing privacy concerns with effective law enforcement tools will continue for the foreseeable future.