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Wiretapping

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Definition Edit

Wiretapping is

the real-time collection of dialed digits and sending of real-time, two-way communications to a listening device, regardless of the target’s location or the technology used. Real time means collecting and sending this information to a listening device as it is being communicated.[1]

History Edit

Congress enacted the first federal wiretap statute as a temporary measure to prevent disclosure of government secrets during World War I.[2] Later, it proscribed intercepting and divulging private radio messages in the Radio Act of 1927,[3] but did not immediately reestablish a federal wiretap prohibition. By the time of the landmark Supreme Court decision in Olmstead v. United States,[4] however, at least forty-one of the forty-eight states had banned wiretapping or forbidden telephone and telegraph employees and officers from disclosing the content of telephone or telegraph messages or both.[5]

Olmstead v. United States Edit

In Olmstead v. United States, the majority held that the Fourth Amendment's search and seizure limitations did not apply to government wiretapping accomplished without a trespass onto private property. In response to that ruling, Congress enacted the 1934 Communications Act by expanding the Radio Act’s proscription against intercepting and divulging radio communications to include intercepting and divulging radio or wire communications.[6]

Section 605 of the 1934 Communications Act Edit

The Section 605 of the Federal Communications Act[7] outlawed wiretapping, but it said nothing about the use of machines to surreptitiously record and transmit face-to-face conversations. Section 605 did ban the interception and divulgence of radio broadcasts but it did not reach the [[radio transmission] of conversations that were broadcast unbeknownst to all of the parties to the conversation. Late in the game, the FCC supplied a partial solution when it banned the use of licensed radio equipment to overhear or record private conversation without the consent of all the parties involved in the conversation.[8] The FCC excluded "operations of any law enforcement offices conducted under lawful authority."[9] In the absence of a statutory ban the number of surreptitious recording cases decided on Fourth Amendment grounds surged and the results began to erode Olmstead's underpinnings.[10]

Erosion of the Olmsted ruling Edit

Erosion, however, came slowly. Initially the U.S. Supreme Court applied Olmstead's principles to these electronic eavesdropping cases. Thus, the use of a dictaphone to secretly overhear a private conversation in an adjacent office offended no Fourth Amendment precipes because no physical trespass into the office in which the conversation took place had occurred.[11] Similarly, the absence of a physical trespass precluded Fourth Amendment coverage of the situation where a federal agent secretly recorded his conversation with a defendant held in a commercial laundry in an area open to the public.[12] On the other hand, the Fourth Amendment did reach the government's physical intrusion upon private property during an investigation, as for example when they drove a "spike mike" into the common wall of a row house until it made contact with a heating duct for the home in which the conversation occurred.[13]

Each of these cases focused upon whether a warrantless trespass onto private property had occurred, that is, whether the means of conducting a search and seizure had been so unreasonable as to offend the Fourth Amendment. Yet in each case, the object of the search and seizure had been not those tangible papers or effects for which the Fourth Amendment's protection had been traditionally claimed, but an intangible, a conversation. This enlarged view of the Fourth Amendment could hardly be ignored, for "[i]t follows from . . . Silverman . . . that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of papers and effects.”[14]

Katz v. United States Edit

Soon thereafter the Court repudiated the notion that the Fourth Amendment’s protection was contingent upon some trespass to real property.[15]

One obvious consequence of Fourth Amendment coverage of wiretapping and other forms of electronic eavesdropping is the usual attachment of the Amendment’s warrant requirement. To avoid constitutional problems and at the same time preserve wiretapping and other forms of electronic eavesdropping as a law enforcement tool, some of the states established a statutory system under which law enforcement officials could obtain a warrant, or equivalent court order, authorizing wiretapping or electronic eavesdropping.

Berger v. United States Edit

The Court rejected the constitutional adequacy of one of the more detailed of these state statutory schemes in Berger v. New York.[16] The statute was found deficient its failure to require:

  • a particularized description of the place to be searched;
  • a particularized description of the crime to which the search and seizure related;
  • a particularized description of the conversation to be seized;
  • limitations to prevent general searches;
  • termination of the interception when the conversation sought had been seized;
  • prompt execution of the order;
  • return to the issuing court detailing the items seized; and
  • any showing exigent circumstances to overcome the want of prior notice.[17]

Berger helped persuade Congress to enact Title III of the Omnibus Crime Control and Safe Streets Act of 1968,[18] a comprehensive wiretapping and electronic eavesdropping statute that not only outlawed both in general terms but that permitted federal and state law enforcement officers to use them under strict limitations designed to meet the objections in Berger.

A decade later another Supreme Court case persuaded Congress to supplement Title III with a judicially supervised procedure for the use of wiretapping and electronic eavesdropping in foreign intelligence gathering situations.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 Edit

When Congress passed Title III there was some question over the extent of the President’s inherent powers to authorize wiretaps — without judicial approval — in national security cases. As a consequence, the issue was simply removed from the Title III scheme.[19]

Foreign Intelligence Surveillance Act of 1978 Edit

After the Court held that the President’s inherent powers were insufficient to excuse warrantless electronic eavesdropping on purely domestic threats to national security (United States v. United States District Court),[20] Congress considered it prudent to augment the foreign intelligence gathering authority of the United States with the Foreign Intelligence Surveillance Act of 1978 (FISA).[21] The Act provides a procedure for judicial review and authorization or denial of wiretapping and other forms of electronic eavesdropping for purposes of foreign intelligence gathering.

Electronic Communications Privacy Act Edit

In 1986, Congress recast Title III in the Electronic Communications Privacy Act (ECPA),[22] The Act followed the general outline of Title III with adjustments and additions. Like Title III, it sought to strike a balance between the interests of privacy and law enforcement, but it also reflected a congressional desire to avoid unnecessarily crippling infant industries in the fields of advanced communications technology.[23]

The Act also included new protection and law enforcement access provisions for stored wire and electronic communications and transactional records access (e-mail and phone records),[24] and for pen registers as well as trap and trace devices (devices for recording the calls placed to or from a particular telephone).[25]

Exclusion of evidence Edit

When the federal wiretap statute prohibits disclosure, the information is inadmissible as evidence before any federal, state, or local tribunal or authority.[26] Individuals whose conversations have been intercepted or against whom the interception was directed[27] have standing to claim the benefits of the Section 2515 exclusionary rule through a motion to suppress under 18 U.S.C. §2518(10)(a). Paragraph 2518(10)(a) bars admission as long as the evidence is the product of (1) an unlawful interception, (2) an interception authorized by a facially insufficient court order, or (3) an interception executed in manner substantially contrary to the order authorizing the interception. Mere technical noncompliance is not enough; the defect must be of a nature that substantially undermines the regime of court-supervised interception for law enforcement purposes.[28]

Although the Supreme Court has held that Section 2515 may require suppression in instances where the Fourth Amendment exclusionary rule would not,[29] some of the lower courts have recognized the applicability of the good faith exception to the Fourth Amendment exclusionary rule in Section 2515 cases.[30] Other courts have held, moreover, that the fruits of an unlawful wiretapping or electronic eavesdropping may be used for impeachment purposes.[31]

The admissibility of tapes or transcripts of tapes of intercepted conversations raise a number of questions quite apart from the legality of the interception. As a consequence of the prerequisites required for admission, privately recorded conversations are more likely to be found inadmissible than those recorded by government officials. Admissibility will require the party moving for admission to show that the tapes or transcripts are accurate, authentic and trustworthy.[32] For some courts this demands a showing that,

(1) the recording device was capable of recording the events offered in evidence; (2) the operator was competent to operate the device; (3) the recording is authentic and correct; (4) changes, additions, or deletions have not been made in the recording; (5) the recording has been preserved in a manner that is shown to the court; (6) the speakers on the tape are identified; and (7) the conversation elicited was made voluntarily and in good faith, without any kind of inducement.[33]

Recent legislation Edit

Over the years, Congress has adjusted the components of Title III, ECPA and FISA. Sometimes in the interests of greater privacy; sometimes in the interest of more effective law enforcement or foreign intelligence gathering. The 107th Congress, for instance, amended the USA PATRIOT Act[34]; the Intelligence Authorization Act for Fiscal Year 2002[35]; the 21st Century Department of Justice Appropriations Authorization Act[36]; and the Department of Homeland Security Act.[37]

ReferencesEdit

  1. FBI: Advanced Communications Technologies Pose Wiretapping Challenges, at 1 n.1.
  2. 40 Stat.1017-18 (1918) ("whoever during the period of governmental operation of the telephone and telegraph systems of the United States . . . shall, without authority and without the knowledge and consent of the other users thereof, except as may be necessary for operation of the service, tap any telegraph or telephone line . . . or whoever being employed in any such telephone or telegraph service shall divulge the contents of any such telephone or telegraph message to any person not duly authorized or entitled the receive the same, shall be fined not exceeding $1,000 or imprisoned for not more than one year or both"); 56 Cong. Rec. 10761-65 (1918).
  3. 44 Stat. 1172 (1927) (". . . no person not being authorized by the sender shall intercept any message and divulge or publish the contents, substance, purpose, effect, or meaning of such intercepted message to any person . . .").
  4. 277 U.S. 438 (1928) (full-text).
  5. Olmstead, supra, 277 U.S. at 479-80 n.13 (1928) (Brandeis, J., dissenting).
  6. 48 U.S.C. §§1103-04 (1934), 47 U.S.C. §605 (1940 ed.). The 1934 Communications Act neither expressly condemned law enforcement interceptions nor called for the exclusion of wiretap evidence, but it was read to encompass both. See Nardone v. United States, 302 U.S. 379 (1937) (full-text); Weiss v. United States, 308 U.S. 321 (1939) (full-text).
  7. Ch. 652, Title VI, §605, 48 Stat. 1103 (1934), as amended, 47 U.S.C. §605.
  8. 31 Fed. Reg. 3400 (March 4, 1966), amending then 47 C.F.R. §§2.701, 15.11.
  9. Id.
  10. The volume of all Fourth Amendment cases calling for Supreme Court review increased dramatically after Mapp v. Ohio, 367 U.S. 643 (1961) (full-text), acknowledged the application of the Fourth Amendment exclusionary rule to the states.
  11. Goldman v. United States, 316 U.S. 129 (1942) (full-text).
  12. On Lee v. United States, 343 U.S. 747 (1952) (full-text).
  13. Silverman v. United States, 365 U.S. 505 (1961) (full-text).
  14. Wong Sun v. United States, 371 U.S. 471, 485 (1963) (full-text)..
  15. Katz v. United States, 389 U.S. 347 (1967).
  16. 388 U.S. 41 (1967).
  17. 388 U.S. at 58-60.
  18. 87 Stat. 197, 18 U.S.C. 2510-2020 (1970 ed.).
  19. 18 U.S.C. 2511(3)(1970 ed.) (“Nothing contained in this chapter or in section 605 of the Communications Act . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. . .”).
  20. 407 U.S. 297 (1972)).
  21. 92 Stat. 1783, 50 U.S.C. §§1801-11.
  22. 100 Stat. 1848, 18 U.S.C. §§2510-21.
  23. H.R. Rep. No. 647, 99th Cong., 2d Sess. 18-9 (1984); S. Rep. No. 541, 99th Cong., 2d Sess. 5 (1986).
  24. 18 U.S.C. §§2701-10.
  25. Id. §§3121-26.
  26. "Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter." 18 U.S.C. §2515 (emphasis added); United States v. Chavez, 416 U.S. 562, 570 (1974); United States v. Lnu, 575 F.3d 298, 301 (3d Cir. 2009); United States v. Lam, 271 F.Supp.2d 1182, 1183-184 (N.D. Cal. 2003). Note that suppression does not extend to unlawfully intercepted electronic communications. United States v. Amanuel, 615 F.3d 117, 125 (2d Cir. 2010); United States v. Steiger, 318 F.3d 1039, 1050-52 (11th Cir. 2003); United States v. Jones, 364 F. Supp.2d 1303, 1308-09 (D. Utah 2005); nor does it extend to evidence secured in violation the pen register/trap and trace provisions. United States v. German, 486 F.3d 849, 852-53 (5th Cir. 2007).
  27. 18 U.S.C. §2510(11)("'aggrieved person' means a person who was a party to any an intercepted wire, oral, or electronic communication or a person against whom the interception was directed"); United States v. Oliva, 686 F.3d 1106, 1108-109 (9th Cir. 2012).
  28. United States v. Lomeli, 676 F.3d 734, 739 (8th Cir. 2012) (internal citations omitted) ("Suppression is not justified if the facial insufficiency of the wiretap order is not more than a technical defect. According to Moore, our analysis is two tiered, first identifying the omission or defect at issue . . . and second, determining whether that defect violates a core statutory requirement or whether it is a mere technical defect not warranting suppression"); see also United States v. Lopez, 300 F.3d 46, 55-56 (1st Cir. 2002); United States v. Staffeldt, 451 F.3d 578, 582-85 (9th Cir. 2006); United States v. Gray, 521 F.3d 514, 522 (6th Cir. 2008); United States v. Foy, 641 F.3d 455, 463 (10th Cir. 2011). This is the case even where the court is clearly troubled by the government's failure to comply with the requirements of Title III. United States v. Callum, 410 F.3d 571, 579 (9th Cir. 2005) ("Under the force of precedent, we uphold the challenged wiretap applications and orders. Still, we note that the Department of Justice and its officers did not cover themselves with glory in obtaining the wiretap orders at issue in this case. Title III is an exacting statute obviously meant to be followed punctiliously, yet the officers repeatedly ignored its clear requirements").
  29. Gelbard v. United States, 408 U.S. 41, 52 (1972).
  30. United States v. Moore, 41 F.3d 370, 376 (8th Cir. 1994); United States v. Ambrosio, 898 F. Supp. 177, 187 (S.D.N.Y. 1995); United States v. Malelzadeh, 855 F.2d 1492, 1497 (11th Cir. 1988); United States v. Mullen, 451 F.Supp.2d 509, 530-31 (W.D.N.Y. 2006); contra United States v. Rice, 478 F.3d 704, 711-14 (6th Cir. 2007). Gelbard held that a grand jury witness might claim the protection of section 2515 through a refusal to answer questions based upon an unlawful wiretap notwithstanding the fact that the Fourth Amendment exclusionary rule does not apply in grand jury proceedings. Gelbard, 408 U.S. at 51-52. The good faith exception to the Fourth Amendment exclusionary rule permits the admission of evidence secured in violation of the Fourth Amendment, if the officers responsible for the breach were acting in good faith reliance upon the apparent authority of a search warrant or some like condition negating the remedial force of the rule. United States v. Leon, 468 U.S. 897, 909 (1984).
  31. United States v. Simels, 654 F.3d 161, 169-70 (2d Cir. 2011) (citing cases in accord); Culbertson v. Culbertson, 143 F.3d 825, 827-28 (4th Cir. 1998); United States v. Echavarria-Olarte, 904 F.2d 1391 (9th Cir. 1990); United States v. Vest, 813 F.2d 477, 484 (1st Cir. 1987); cf. United States v. Crabtree, 565 F.3d 887, 891-92 (4th Cir. 2009) (noting that the Circuit's recognition of admissibility for impeachment purposes does not require recognition of a clean hands exception under which the government may admit introduce illegal wiretap evidence as long as it was not involved in the illegal interception).
  32. United States v. Thompson, 130 F.3d 676, 683 (5th Cir. 1997); United States v. Panaro, 241 F.3d 1104, 1111 (9th Cir. 2001); United States v. Smith, 242 F.3d 737, 741 (7th Cir. 2001).
  33. United States v. Webster, 84 F.3d 1056, 1064 (8th Cir. 1996); United States v. Green, 175 F.3d 822, 830 n.3 (10th Cir. 1999); United States v. Green, 324 F.3d 375, 379 (5th Cir. 2003) (citing 4 of the 7 factors); cf. United States v. Calderin-Rodriguez, 244 F.3d 977, 986-87 (8th Cir. 2001). These seven factors have been fairly widely cited since they were first announced in United States v. McKeever, 169 F.Supp. 426, 430 (S.D.N.Y. 1958), rev'd on other grounds, 271 F.2d 669 (2d Cir. 1959). They are a bit formalistic for some courts who endorse a more ad hoc approach to the assessment of whether the [[admission] of what purports to be a taped conversation will introduce fraud or confusion into the court. See, e.g., Stringel v. Methodist Hosp. of Indiana, Inc., 89 F.3d 415, 420 (7th Cir. 1996) (McKeever "sets out a rather formal, seven step checklist for the authentication of tape recordings, and we have looked to some of the features [in the past]"); United States v. White, 116 F.3d 903, 921 (D.C.Cir. 1997) ("tapes may be authenticated by testimony describing the process or system that created the tape or by testimony from parties to the conversation affirming that the tapes contained an accurate record of what was said"); United States v. Tropeano, 252 F.3d 653, 661 (2d Cir. 2001) ("[T]his Circuit has never expressly adopted a rigid standard for determining the admissibility of tape recordings"); United States v. Westmoreland, 312 F.3d 302, 310-11 (7th Cir. 2002); United States v. Dawson, 425 F.3d 389, 393 (7th Cir. 2005) ("But there are no rigid rules, such as chain of custody, for authentication; all that is required is adequate evidence of genuineness. (There are such rules for electronic surveillance governed by Title III, but Title III is inapplicable to conversations that, as here, are recorded with the consent of one of the participants)").
  34. Pub. L. No. 107-56, 115 Stat. (2001).
  35. Pub. L. No. 107-108, 115 Stat. 1394 (2001).
  36. Pub. L. No. 107-273, 116 Stat. 1758 (2002).
  37. Pub. L. No. 107-296, 116 Stat. 2135 (2002).

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