Topic:
CONSTITUTIONAL LAW; ELECTRONIC SURVEILLANCE;
Location:
WIRETAPPING;
Scope:
Court Cases; Federal laws/regulations; Connecticut laws/regulations;

OLR Research Report


November 8, 2001

 

2001-R-0770

LAWS REGULATING SURVEILLANCE

 

By: Susan Price-Livingston, Associate Attorney

You asked about Connecticut and federal laws that regulate law enforcement officials' use of wiretaps and other communication-monitoring devices. This report does not include an analysis of the federal USA Patriot Act, which President Bush signed into law on October 26, 2001. We will release a separate report on the new surveillance provisions it contains shortly.

SUMMARY

Law enforcement officials generally must get court permission before using electronic devices to monitor a target's private communications. During 2000, federal judges issued 9 wiretap orders involving such communications in Connecticut. Deborah Fuller of the Judicial Department reports that state judges issued six wiretap orders during the same year.

Many of the standards regulating such surveillance are grounded in the U.S. and Connecticut constitutions' prohibitions against unreasonable searches and seizures. State and federal courts have ruled that these protections apply to a target's oral communications, including telephone conversations, when made under circumstances reasonably justifying the speaker's expectation of privacy. To a lesser extent, these protections apply to non-voice communications transmitted electronically, such as e-mails, fax transmissions, and digital pager messages.

Courts have held that interpretations of the U.S. constitution's search and seizure provisions apply equally to their Connecticut counterparts. They impose heightened probable cause standards on wiretap applicants than on other types of warrant requests.

Connecticut and federal wiretap laws generally incorporate these constitutional restrictions and impose additional limits on the use of electronic surveillance. In Connecticut, a single standard applies to all interceptions of “wire communications” made in conjunction with specified criminal investigations. Federal law sets multiple standards based on the nature of the communication sought and the purpose of the interception.

The federal laws authorize states to use their procedures but also permit state lawmakers to set more restrictive rules. New London State's Attorney Kevin Kane reports that in Connecticut the wiretap law is more protective of privacy than the federal law, and Connecticut law enforcement personnel do not use all of the wiretap techniques the federal law permits. For example, unlike federal judges, state court judges apparently have no authority to issue “roving” wiretap orders (e.g., those that permit phone conversations to be intercepted from any phone when a target thwarts interception by frequently changing locations) or to authorize the installation of “bugs” in private areas. Similarly, in some instances federal investigators can use administrative subpoenas to obtain billing records and stored electronic communications from computer service providers, while their state counterparts must obtain a full search warrant.

A separate federal law permits wiretaps on U.S. telephones, radios, and computer lines in conjunction with foreign intelligence gathering operations. Permissible targets are foreign powers, their agents, and people who assist or conspire with them. National security officials must certify that the wiretap is for foreign intelligence purposes, but its privacy protections are significantly weaker than under the other federal statutes.

All of the wiretap laws impose criminal and civil penalties on law enforcement personnel who unlawfully intercept or disclose private communications. The federal law governing stored electronic communications and subscriber records also includes a provision requiring federal agencies to take disciplinary action against employees who intentionally violate the law.

CONSTITUTIONAL RESTRAINTS

Using electronic devices to monitor the private activities of criminal suspects triggers the constitutional limitations of the Fourth Amendment to the U.S. Constitution and Article First, Section 7 of the Connecticut Constitution. These provisions have been interpreted as requiring government officials to obtain a search warrant before using electronic listening or sound amplification devices to intercept communications made by people with a justifiable expectation of privacy (Katz v. United States, 389 U.S. 347 (1967); State v. Zindros, 189 Conn. 228 (1983)).

Wiretap warrants must be supported by probable cause and particularly describe the place to be searched and the persons or things to be seized. In the context of surveillance of traditional telephone and wire communications, the place to be searched is the communications service or facility transmitting the conversation and the thing to be seized is the content of the target's speech. For newer communications technologies, the place to be searched may include the microwave frequency over which the message travels or an Internet service provider's fiber optic cable network.

The Fourth Amendment establishes a higher standard for wiretap orders than that which applies generally to search warrants. In addition to showing probable cause that the communications facility is, has been, or is likely to be used in the commission of a particular crime, it requires the applicant to show “necessity” (i.e., that less intrusive investigatory techniques have been tried and failed, are unlikely to succeed, or would be too dangerous). And people executing a wiretap order must use objectively reasonable methods to minimize the interception of communications that are outside its scope (U.S. v. Scott, 436 U.S. 128 (1978)).

Post-interception procedures require officials to document a “chain of custody” to show that the evidence has not been tampered with. This requires them to seal wiretap orders and recorded communications and prepare an inventory promptly after the wiretap operation ends. Unless excused by a court, officials must notify the people whose communications they intercepted once the wiretap operation has ended.

Some governmental surveillance of private activities does not trigger constitutional protections. For example, police can record private conversations taking place in areas where they could be overheard. They can also tape any conversation or communication if one of the participants consents. Finally, the doctrine of “exigent circumstances” permits warrantless searches, including wiretaps, when the delay associated with obtaining a court order gravely endangers the lives of innocent persons (U.S. v. U.S. Dist. Court, 407 U.S. 297 (1972)).

Courts have also determined that the Fourth Amendment does not protect otherwise-personal information that an individual shares with entities such as banks and telephone companies. Thus, the constitution does not require police to get a search warrant to use a pen register to record telephone numbers dialed to and from a target telephone because the person voluntarily gives this information to the communications provider to complete the call (Smith v. Maryland, 442 U.S. 735 (1979)). A similar rule applies to transactional information such as bank statements and toll calls listed on a customer's phone bill. (But by statute, criminal investigators must have court orders or other legal authorization to gain access to these records; see below.)

Voice- and e-mail messages are generally treated under the rules governing materials sent through the mail. “Real-time” transmissions along a communications provider's secure route are afforded constitutional protections (as are sealed letters sent through the U.S. mail), but once the addressee listens to the message, opens the e-mail, or the service provider puts them in long-term storage, these protections are lost (Steve Jackson Games v. U.S. Secret Service, 36 F.3d 457 (5th Cir. (1994)).

CONNECTICUT ELECTRONIC SURVEILLANCE STATUTES

Connecticut's wiretap statute generally prohibits anyone from intercepting wire communications without at least one party's consent or a court order (CGS 54-41a, et seq.). A wire communication is any communication “made in whole or in part through the use of facilities for the transmission of communications by the aid of telephone or telegraph between the point of origin and the point of reception.” A common carrier must provide or operate the facilities “for the transmission of intrastate, interstate or foreign communications" ( 54-41a(1)). (A common carrier is an entity that, for a fee, transmits communications by wire or radio.)

“Intercept” means the intentional overhearing or recording of a wire communication using any electronic, mechanical, or other device. The statute excludes standard hearing aids and telephone or telegraph equipment a common carrier is using in the ordinary course of its business ( 54-41a(2) and (3)).

The state crimes for which wiretaps are authorized are: gambling, bribery, racketeering, manufacturing and selling narcotics or hallucinogens, and felonies involving violence. Only the chief state's attorney or the state's attorney for the judicial district in which the interception will be conducted can file a wiretap application ( 54-41b).

A three-judge panel must unanimously agree that the applicant has met certain legal requirements before it can issue a wiretap order ( 54-41d), and cannot approve more than 35 wiretap applications in any calendar year unless it finds that there is an emergency situation in which the commission of a covered offense may result in imminent peril to public health, safety, or welfare ( 54-41d). The state's attorney applying for a wiretap order in excess of the annual limit must notify the governor and Judiciary Committee of the emergency and nature of the imminent peril ( 54-41c).

Applications

Applications must include:

1. the applicant's name and authority to apply for a wiretap order;

2. the identity and qualifications of the investigative officers or agency for whom the authority to intercept a wire communication is sought (by law, these can be the State Police, Division of Criminal Justice inspectors, specially sworn municipal police officers assigned to the statewide organized crime or narcotics investigative task forces, and state prosecutors ( 54-41a(5));

3. the identity and qualifications of the investigative or law enforcement officers to whom disclosure of the contents of any intercepted wire communication or evidence derived from it might be made (these can be police officers on organized forces in Connecticut and other states, the Federal Bureau of Investigation, U.S. Drug Enforcement Administration, Customs Service, and the U.S. attorney for the district of Connecticut or his designee ( 54-41a(6));

4. how the contents of any intercepted wire communication or any evidence derived from it will be used;

5. facts and circumstances the applicant relies on to justify his reasonable belief that the wire communication will constitute evidence of a covered crime that has been or is being committed or that such communication will materially aid in the perpetrator's apprehension, including (a) the particular offense involved; (b) a particular description of the nature and location of the facilities from which, or the place where, the communication will be intercepted; (c) the identity, if known, of the targeted person; (d) the date and time the applicant or investigators became aware of the facts relied on in the application; (e) how the intercepted communication will aid in the apprehension of the criminal target; and (f) the hours during which the interception is likely to occur;

6. facts showing that other normal investigative procedures have failed or reasonably appear unlikely to succeed or to be too dangerous;

7. how long the interception will last and the time of day when it will occur;

8. facts concerning all previous state wiretap applications the applicant knows about involving any of the same people, facilities, or places and the panel's action on them;

9. a statement that the wire communications sought are material to a particularly described investigation or prosecution and that such communications are not legally privileged;

10. if intending to secretly install the intercepting device in a private area, disclosure of this fact along with a statement that there is no practicable other way to execute the wiretap order that will preserve its secrecy; and

11. any additional supporting testimony or documentary evidence the panel of judges requires ( 54-41d).

Prosecutors must file wiretap applications while the facts they rely on to justify the surveillance are still fresh. The law specifies that panels must deny applications if the applicant or any investigative officer knew about its underlying facts or circumstances for more than 20 days before applying.

Facts recited in applications may be based on the applicant's personal knowledge, on information he reasonably believes to be true, or on information provided by others. If an allegation is based on information provided by an informant, the application must include facts establishing his reliability and the basis of his knowledge or belief. If allegations are based on physical or recorded oral evidence, the application must include a copy or detailed description of it.

Legal Standard and Contents of Court Orders

The court panel that receives the application can unanimously agree to issue an ex parte wiretap order (without notice to anyone except the applicant) based on an application that meets the law's standards. This requires the panel to determine that the application contains sufficient factual allegations to establish probable cause that:

1. a person has committed or is committing a crime covered by the state wiretap law;

2. particular communications will constitute material evidence of the commission of that offense or will materially aid in the apprehension of the perpetrator;

3. the communications are not legally privileged (e.g., are not protected by spousal, doctor-patient, or priest-penitent confidentiality laws);

4. other normal investigative procedures have failed or would be unlikely to succeed or too dangerous to try;

5. the facilities from which, or the place where the communications are to be intercepted are being used, or are about to be used in connection with the commission of the crime being investigated, or are leased to, listed in the name of, or commonly used by the suspect;

6. such facilities or places are not those the wiretap law protects from interception (i.e., phone lines leased in the name of, or regularly used by, lawyers, doctors, or the clergy);

7. special need if the facility from which a wire communication is to be intercepted is used by the public (e.g., a public pay phone); and

8. the investigative officers seeking authorization to conduct the interception have adequate training and experience to do so.

Each wiretap order must include the panel's written decision specifying the basis for each of the above-listed probable cause determinations. It must specify whose communications may be intercepted and the location of the communication facilities or the place where the interception may take place.

The order must also contain (1) a statement of the particular offense to which it relates; (2) who may conduct the interception; (3) the names of other investigative or law enforcement officers to whom disclosure of the contents or other evidence derived from an intercepted communication may be made; (4) the use to which the contents of the communication or derivative evidence may be put; (5) the identity and authority of the applicant; (6) the identity and authority of the panel members; (7) the period of time during which interception is authorized, including in most instances a statement that the interception end as soon as the desired communication is first obtained; (8) express authorization to make secret entry onto private premises to install the intercepting device if the panel agrees that no other practicable means of keeping the wiretap secret exists; and (9) the order's issuance and effective date ( 54-41e).

Each order must contain provisions directing that the interception be carried out as soon as practicable and in a manner that minimizes unauthorized interceptions. Orders may permit interceptions to continue beyond the time that the first desired communication is obtained when the nature of the investigation suggests that subsequent communications within the order's scope are likely to occur. No order can authorize a wiretap lasting more than 15 days, but the panel can grant up to three 15-day extensions. The panel may also require the applicant to file progress reports during the time covered by its orders ( 54-41f).

If the applicant requests it, the wiretap order may direct a communication common carrier, landlord, custodian, or other person to give the applicant assistance necessary to accomplish the interception unobtrusively and with a minimum of disruption to its services. When this occurs, the applicant must pay them the prevailing rate for their services (54-41e).

Grey Areas of State Law

Although there is no controlling caselaw finding a particular method of government surveillance unlawful under Connecticut's wiretap or eavesdropping laws, language in court and attorney general opinions suggests that state officials may not use all of the federally approved surveillance techniques in conjunction with state criminal investigations.

New Technologies. It is unclear whether the existing statutory definition of “wire communication” gives state officials authority to intercept communications made using newly developed technologies that do not travel over traditional telephone lines, such as calls made using personal communication services (PCS). Connecticut's Supreme Court has not yet decided such a case, but it has ruled that cordless phone calls are covered by the state wiretapping and eavesdropping statutes because some part of their transmission involves phone lines (State v. McVeigh, 224 Conn. 593 (1993)).

The potential for individual criminal and civil liability under the state's eavesdropping and wiretap laws (CGS 53a-189, 54-41r, and 54-41t) may deter state prosecutors from applying for orders to intercept communications involving these new technologies.

Bugs and Warrantless Wiretaps in Emergencies. In 1986, the State Police commissioner requested an attorney general ruling on whether the State Police could bug private areas or conduct warrantless wiretaps in emergencies such as terrorist attacks or hostage-taking situations. The attorney general concluded that neither option was permissible under state law. With respect to the prohibition on the use of bugs, he relied on the absence of a law specifically authorizing law enforcement to use them, combined with the eavesdropping statute's legislative history that suggesting that the omission was intentional.

He also concluded that the state wiretap law does not permit warrantless interceptions even under circumstances that would satisfy the Fourth Amendment's “exigent circumstances” test. He relied on (1) the absence of a provision exempting emergency wiretaps from the mandatory requirement that all wiretaps be based on written applications approved by the three-judge panel and (2) the legislature's clear intention to make state wiretap procedures more restrictive than those constitutionally required. Finally, he noted that Congress incorporated the exigent circumstances doctrine into the federal wiretap law by expressly specifying the conditions under which warrantless wiretaps were authorized (Op. Atty. Gen. No. 86-028).

Stored Communications and Transaction Information. We found no Connecticut statute or cases delineating the requirements for obtaining subscriber information or e-mail messages that a communications service provider stores on its network. The federal wiretap law permits access to such information with a lesser factual showing than is required to secure a search warrant (see below), but it appears that because state prosecutors cannot use investigatory subpoenas in Connecticut, they must obtain search warrants under the standards of CGS 54-33a.

Pen Registers and Trap and Trace Devices. No Connecticut law expressly governs the use of pen registers and track and trace devices which record numbers dialed to and from a targeted telephone. State investigators have used the relaxed federal standards for getting such orders (see below) based on a U.S. attorney's application in some joint investigations, reports State's Attorney Kane. But it is unclear whether the absence of an express statutory authorization to use such devices amounts to the state's prohibition of their use. As discussed below, the federal pen register statute authorizes state and local government entities to use its procedures so long their laws do not prohibit this.

FEDERAL WIRETAP LAWS

Title III

Title III of the federal Omnibus Crime Control and Safe Streets Act of 1968 also regulates the government's use of electronic surveillance to intercept wire, oral, and electronic communications in conjunction with law enforcement activities (18 U.S.C. 2510, et seq.). It specifies procedures, standards, and Department of Justice (DOJ) prior-authorization requirements for each type of interception. It also creates generic disclosure and use rules. State and local authorities are authorized to use some of its procedures in state courts so long as doing so would not circumvent a stricter local law (18 USC 2516(2)).

Title III defines “wire communications” as any aural (human voice) transfer made using facilities that transmit communications by wire, cable, or other like connection between the points of origin and of reception (including the use of such connection in a switching station). The facilities must be furnished or operated by a carrier to transmit communications between states or countries or communications affecting interstate or foreign commerce. Wire communications include communications a carrier stores electronically on its network (18 USC 2510(a)).

“Oral communications” are “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation,” except for electronic communications ( 2510(b)). “Electronic communication,” in turn, means “any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce except (1) wire or oral communications,…. (2) communications made through a tone-only paging device; (3) communications from tracking devices, and (4) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds” ( 2510(12)).

Title III orders can authorize interceptions for up to 30 days, but may specify that interceptions end earlier, such as when the objective of the authorization has been achieved. Judges can extend these orders for an unlimited number of 30-day periods so long as a new application is filed before its predecessor expires ( 2518(5)).

Predicate Offenses for Federal Officials' Wiretap Applications. As under Connecticut law, Title III wiretap orders are authorized only for investigations of certain crimes. But its list of covered offenses substantially exceeds that permitted under state law. Any federal felony investigation may serve as the basis for an order to intercept electronic communications ( 2516(3)). Authorization for oral or telephone wiretaps is limited to federal crimes generally involving narcotics, bribery, loan fraud, racketeering, wire or bank fraud, counterfeiting, and “other enumerated offenses.” These are:

1. offenses punishable by death or more than one year in prison under specified sections of federal law relating to (a) criminal violations of the Atomic Energy Act, (b) sabotage of nuclear facilities or fuel, (c) espionage, (d) sabotage, (e) treason, (f) riots, (g) malicious mischief, (h) destruction of vessels, or (i) piracy;

2. crimes under Title 29 (the federal labor statutes) relating to restrictions on payments and loans to labor unions or any labor-related crime involving murder, kidnapping, robbery, or extortion;

3. any criminal offense under specified sections of the federal criminal code involving (a) bribery of federal officials, witnesses or bank officials; (b) bribery in sporting contests; (c) unlawful use of explosives; (d) concealing assets; (e) transmission of wagering information; (f) escape; (g) fraudulent loans and credit applications, renewals, and discounts; (h) influencing or injuring an officer, juror, or witness; (i) obstruction of criminal investigations; (j) obstruction of state or local law enforcement; (k) assassinating, kidnapping, or assaulting the president, members of Congress or the Supreme Court, or their staffs; (l) interference with commerce by threats or violence; (m) interstate and foreign travel or transportation in aid of racketeering enterprises; (n) use of interstate commerce facilities in the commission of murder for hire; (o) violent crimes in aid of racketeering activity; (p) offer, acceptance, or solicitation to influence operations of employee benefit plans; (q) operating a gambling enterprise; (r) money laundering; (s) engaging in monetary transactions in property derived from specified unlawful activities; (t) theft from interstate shipments; (u) embezzlement from pension and welfare funds; (v) bank or mail fraud; (w) sexual exploitation of children; (x) interstate transportation of stolen property; (y) trafficking in certain motor vehicles or motor vehicle parts; (z) hostage taking; (aa) fraud in connection with access devices; (bb) failure to appear in court; (cc) threats to the safety of witness protection program participants; (dd) destruction of aircraft or aircraft facilities; (ee) aircraft parts fraud; (ff) violations of racketeer influenced and corrupt organizations (RICO) law; (gg) threatening or retaliating against a federal official; (hh) prohibited transactions involving nuclear materials; (ii) destruction of motor vehicles or motor vehicle facilities; (jj) biological weapons; (kk) wrecking trains; (ll) felony violations of the production of false identification statute; and (mm) various crimes relating to unlawful procurement or fraudulent use of citizenship or naturalization documents, visas, and passports;

4. specified violations of federal counterfeiting laws;

5. any offense involving fraud connected with a bankruptcy case or manufacturing, importing, receiving, concealing, buying, selling, or otherwise dealing in narcotic drugs, marihuana, or other dangerous drugs, punishable under any federal law;

6. any offense, including extortionate credit transactions, under specified provisions of U.S. Code;

7. violations of the currency transactions reporting laws;

8. any felony under specified federal laws relating to the interception and disclosure of certain communications and to the use of certain interception devices;

9. any felony violation under specified federal obscenity laws;

10. any violation of specified federal laws relating to destruction of a natural gas pipeline or aircraft piracy;

11. any criminal violation of a specified provision of the Arms Export Control Act;

12. any violation of specified federal laws relating to alien smuggling;

13. any felony violations of specified federal firearms laws; and

14. any conspiracy to commit any offense described above (18 USC 2516(1)).

Title III also permits the use of electronic surveillance to locate fugitives from justice under any of these offenses.

Predicate Offenses for State Title III Wiretaps. State officials may apply for Title III orders in conjunction with a limited list of criminal investigations. If a state has a law permitting the principal state or local prosecuting attorney to apply for wiretaps, Title III authorizes him to apply to a state court judge for an order to intercept wire, oral, or electronic communications in conformity with both Title III procedures (see below) and the state's own wiretap statute. However, if the state law is more restrictive than Title III standards, it appears that state judges must follow the stricter state rules.

To use Title III as the basis for a wiretap order, the state crime the applicant is investigating must involve:

1. murder;

2. kidnapping;

3. gambling;

4. robbery;

5. bribery;

6. extortion;

7. drug dealing;

8. other crimes dangerous to life, limb, or property punishable by more than one year in prison; or

9. any conspiracy to commit any of the above offenses (28 USC 2516(2)).

State's Attorney Kane reports that he is not aware of any case where state officials used Title III procedures in conjunction with purely state criminal investigations.

Application Requirements. People applying for Title III orders in connection with federal investigations must first get permission to do so from a DOJ official. Any DOJ attorney can authorize the filing of an application to intercept electronic communications. But only the U.S. attorney general or a specially designated assistant or deputy assistant attorney general in the DOJ's Criminal Division can authorize wire or oral wiretap applications. In all situations, Title III applications must name the authorizing DOJ official ( 2518(1)(2)).

Applications for Title III orders require most of the same supporting factual information described above for state court requests. Taken together, the application and supporting affidavits must show probable cause to believe that the interception will reveal evidence of a covered offense ( 2516(3)). They must also show (1) that normal investigative procedures have been tried and failed, or that they reasonably appear to be unlikely to succeed or to be too dangerous ( 2518(1)(c)); (2) probable cause that the communication facility is being used in a crime; and (3) that the surveillance will be conducted in a way that minimizes the interception of communications that do not provide evidence of the crime under investigation ( 2518(5)).

Legal Standard and Content of Title III Orders. The judicial findings required for granting a Title III order and the required contents of such orders are similar to those described above for state wiretap authorizations. However, there is no annual limit on the number of Title III orders federal courts can issue. And the federal law expressly permits judges to authorize “roving” wiretaps when a target so frequently changes communications facilities or locations that orders restricted to particular facilities or locations become obsolete before they can be executed.

Judges can authorize roving Title III wiretaps when a DOJ official holding the rank of assistant attorney general or higher has approved the application (28 USC 2518 (11)(a)). If the application is for a tap to intercept the target's private conversations, the judge must determine that the applicant presented sufficient facts to support a finding that limiting the order to specific locations is not practicable. Applications for phone or electronic wiretaps must meet this test and contain sufficient facts to establish probable cause that the target is using such devices in a manner that may have the effect of thwarting interception. All roving orders must specify that they can be used only while it is reasonable to presume that the targeted person is nearby ( 2518(11)(b)(iii)).

Warrantless Wiretaps. In emergencies, Title III permits officials to install wiretaps and intercept communications without a court order. DOJ officials must have first specially designated a law enforcement or investigative officer and this person must determine that an emergency situation exists that requires communications to be intercepted without the delay associated with obtaining a court order. An emergency situation involves either: (1) immediate danger of death or serious bodily injury to any person, (2) conspiratorial activities threatening the national security interest, or (3) conspiratorial activities characteristic of organized crime ( 2518(7)). The emergency provision also requires that grounds exist at the time of the warrantless interception under which a court order could be obtained (e.g., probable cause, necessity, and specificity of target location).

Once a DOJ official at the rank of associate attorney general or higher has approved an emergency wiretap, the government has 48 hours to obtain a court order ratifying this action. Its court application must include all information required for a standard Title III order, but can rely only on facts the authorizing official knew at the time he gave his approval. Failure to obtain a court order within this time renders the emergency interception illegal (Id.)

Permitted Uses of Intercepted Communication. As discussed above, Connecticut law limits disclosure and use of intercepted communications to those individuals named in the original wiretap order and only for purposes that the order expressly specifies. Title III, by contrast, has broader disclosure and use provisions. Under the law, information obtained as a result of a lawfully executed wiretap may be used in three situations: (1) an investigative or law enforcement officer may disclose it to other such entities when this is appropriate for the proper performance of his or their duties; (2) any person may disclose it while testifying at any proceeding held under the statutory authority of the U.S. or any state; and (3) when an investigative or law enforcement officer carrying out a wiretap intercepts communications about crimes other than those specified in the order, he may disclose or testify about this after receiving a judge's ruling that the minimization procedures mandated by the underlying wiretap order were properly followed ( 2517).

Electronic Communications Privacy Act

In 1986 Congress amended Title III by enacting the Electronic Communications Privacy Act (ECPA). This extended Title III's protections to electronic communications not involving oral or wire communications, such as e-mail, digital display pager messages, and fax transmissions (18 USC 2510(12)).

As discussed above, Title III allows interception of these types of communications in conjunction with any federal criminal investigation and permits any government attorney to pre-approve court applications. ECPA also establishes rules governing the disclosure of stored electronic messages and transaction records of criminal suspects.

Stored Communications. ECPA sets an intermediate standard that law enforcement personnel must meet to gain access to e-mail stored on a provider's network. It requires them to obtain a search warrant in accordance with federal or state laws if the materials have been stored for 180 days or less (18 USC 2703(a)). After that, they may use either the search warrant or, after notifying the affected customer, (1) an administrative subpoena if permitted under the applicable state or federal law, (2) a state or federal grand jury or trial subpoena, or (c) a court order ( 2703(b)).

Court orders under ECPA require the applicant to offer specific and articulable facts that show there are reasonable grounds to believe that the contents of the stored message are relevant and material to an ongoing criminal investigation. State and local officials cannot use this procedure if their state laws prohibit it ( 2703(d)).

Courts or the entity issuing a subpoena may order providers to disclose this information without giving the affected person advance notice. They can delay the notice requirement for up to 90 days in situations where an earlier notice might jeopardize an ongoing investigation or unduly delay a trial ( 2705). Additional delays may be ordered upon application or by certification of a government entity.

Transaction Records of Electronic Communications Service Users. ECPA also permits the issuance of court orders and subpoenas to obtain records from electronic communications service providers concerning a targeted individual's use of their services. These transaction records include the (1) name, (2) address, (3) local and long-distance telephone toll billing records, (4) telephone or other subscriber number or identity, and (5) types of services used.

Investigating officials may obtain them using administrative subpoenas if permitted under the applicable state or federal law, grand jury or trial subpoenas, search warrants, or court orders (2703(C)). The mechanism for doing so differs from that described above in that it does not make a search warrant a prerequisite for disclosure of records pertaining to the target's most recent activities nor require that he be notified that his records have been disclosed to criminal investigators.

FEDERAL PEN REGISTER/TRAP AND TRACE LAW

The pen register/trap and trace statute authorizes U.S. attorneys of any rank to apply to federal judges or magistrates for an order authorizing the installation of a pen register and/or trap and trace device to record numbers dialed to and from a targeted phone line. Applications must identify the law enforcement agency conducting the investigation and contain the applicant's certification of his belief that the information likely to be obtained is relevant to an ongoing criminal investigation (18 U.S.C. 3122(b)(2)). They need not include supporting facts or describe the crime that is being investigated.

Courts must issue an order for applications that meet these requirements. They may authorize use of a pen/trap device for up to 60 days, and where extensions are requested, for an indefinite number of additional 60-day periods ( 3123(c)). State judges and magistrates can authorize the use of these devices under the same rules unless their states prohibit this. The law contains authorization for the use of pen registers in emergency situations, incorporating the same standards as are described above for warrantless Title III wiretaps ( 3125).

Pen register orders must be kept under seal until a court orders otherwise, and carriers on whose equipment the devices are attached cannot disclose this information or the existence of the underlying investigation without a court's permission ( 3123(d)).

COMMONLY USED ELECTRONIC SURVEILLANCE TECHNIQUES

Table 1 lists techniques commonly used in federal criminal investigations to monitor wire, oral, and electronic communications. It specifies the devices used to conduct the interception, court order required and its statutory authorization, lowest ranking judicial or DOJ official authorized to issue or approve orders, maximum interception period allowed under each order, and the factual showing the applicant must present to the court.

Table 1: Intercepting Wire, Oral, and Electronic Communications and Related Information—Federal Laws and Criminal Rules

Info Sought

Device/

Record

Paper

Needed

Statute

Or Rule

Authori-zing Official

Duration

Court Review Standard

Phone number dialed—real time

Pen Register

Court Order

18 USC

1321

Magistrate

60 days

Relevance

Incoming phone number—real time

Trap and Trace/

Caller ID

Court

Order

1321

Magistrate

60 days

Relevance

Subscriber info and incoming and outgoing calls— stored

Toll records

Grand Jury Subpoena

Admin. Subpoena

Court Order

18 USC 2703(c)

Grand Jury

Agency

Magistrate

N/A

Specific and articulable facts; relevant and material to ongoing investigation

Oral communi-cations—private

Bug

Title III Order

18 USC

2518

Judge and Deputy Asst. Atty. Gen'l (DAAG)

30 days

Probable Cause “Plus”

Wire commun-ications— real time

Cell phone

Hardline phone

Cordless phone

Title III Order

2518

Judge and DAAG

30 days

Probable Cause “Plus”

Faxed documents —real time

Fax machine

Title III Order

2518

Judge and DAAG

30 days

Probable Cause “Plus”

Computer files—stored or down—loaded

Computer

Search Warrant

2703(a)

and Fed. Rule Crim. Proc. 41

Magistrate

N/A

Probable Cause

Computer messages sent by e-mail, Internet, or network systems

Computer service provider (e.g., AOL)

Title III Order

2518

Judge and DAAG

30 days

Probable Cause “Plus”

Wire communi-cations over cloned cell phone

Cloned cell phone

Title III Order

2518

Judge and DAAG

30 days

Probable Cause “Plus”

Use of multiple cell phones —rapid changes

Roving wiretap

Title III Order

2518(11)

(b)

Judge and Asst. Atty. Gen'l for Crim. Div.

30 days

Probable Cause “Plus” and activities likely to thwart interception

Video— installed by agents in residence or business

Video/

Closed circuit TV

Search Warrant

Rule 41

Judge

30 days

Probable Cause “Plus”

Video—camera already on premises

Monitoring equip.

Title III Order

2518

Judge and DAAG

30 days

Probable Cause “Plus”

Video—public area

Pole camera

None

N/A

N/A

N/A

N/A

Names and numbers—electronic address book

Electronic notebook

Search Warrant

Rule 41

Magistrate

N/A

Probable Cause

Tracking movements

Transpon-

der, bumper beeper, GPS device

Search Warrant

Rule 41

Magistrate

 

Probable Cause

Source: U.S. Attorneys' Bulletin, September 1997

FEDERAL FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)

FISA orders may be used to gather “foreign intelligence information” by intercepting oral, telephone, and wire communications of:

1. foreign powers (foreign governments and components; national or multi-national government factions, and foreign-based political organizations; entities directed and controlled by foreign governments; and groups engaged in international terrorism or preparing to do so);

2. agents of foreign powers ((a) entities that are not citizens, permanent residents, or U.S. businesses or associations (i) acting in the U.S. as a foreign power's officer or employee or (ii) present in the U.S. under circumstances indicating that they may engage in clandestine intelligence activities contrary to U.S. interests, or aid or conspire with someone else to do so; or (b) any person who knowingly engages in (i) clandestine intelligence gathering activities at the direction of and on behalf of a foreign power which involve or may involve a federal crime, (ii) sabotage or international terrorism or prepares to do so, (iii) entering the U.S. on behalf of a foreign power using fraudulent documents or assuming a false identity once here, or (iv) aiding, abetting, or conspiring with someone else to do any of the above (50 USC 1801(a) and (b)).

The government's use of electronic surveillance to gather such information triggers FISA's provisions in four situations: (1) when it targets wire or radio communications sent or intended to be received by a particular, known “United States person” in the U.S. and a warrant would be required to conduct the surveillance for law enforcement purposes; (2) when it seeks to intercept wire communications in the U.S. that were sent to or from someone located in this country; (3) when it seeks to intercept radio communications under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required to conduct such surveillance for law enforcement purposes, where the sender and all intended recipients are in the U.S.; and (4) when it seeks to install surveillance devices in the U.S. to acquire information other than from wire or radio communications under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes ( 1801(f)).

“United States persons” are citizens, permanent residents, businesses incorporated in the U.S. with a substantial number of U.S. employees, and unincorporated associations to which a substantial number of U.S. citizens or permanent residents belong.

The U.S. Supreme Court's chief justice appoints a panel of seven federal district court judges and a three-judge review panel who have exclusive authority to handle FISA order applications ( 1803). However, no court order is required for electronic surveillance of certain foreign powers when the attorney general certifies that there is no substantial likelihood that communications involving U.S. persons will be intercepted ( 1802).

Foreign Intelligence Information

This information is defined as information that relates to the ability of the U.S. to protect against (1) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power, (2) sabotage or international terrorism by a foreign power or an agent of a foreign power, (3) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power, and (4) information with respect to a foreign power or foreign territory that relates to, and if concerning a U.S. citizen, is necessary to the national defense or the security of the U.S. or its conduct of foreign affairs.

FISA Applications

FISA requires that applications be pre-approved by the U.S. attorney general and include his certification that the application satisfies all of FISA's criteria. They must also include:

1. the identity of the federal official making the application;

2. the authority conferred on the attorney general by the President and the approval of the attorney general to make the application;

3. the identity or a description of the target of the electronic surveillance;

4. facts relied upon to justify the applicant's belief that the target is a foreign power or its agent and that each of the places at which the electronic surveillance is directed is being used, or is about to be used by, the foreign power or agent;

5. a statement of proposed minimization procedures;

6. a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance accompanied by a high level national security official's certification that (a) he deems the information sought to be foreign intelligence information and the basis for this conclusion, (b) the purpose of the surveillance is to obtain foreign intelligence information, and (c) such information cannot reasonably be obtained by normal investigative techniques and the basis for this determination;

7. how the surveillance will be effected;

8. disclosure of prior surveillance applications and court rulings; and

9. how long surveillance is required ( 1804).

Legal Standards and Court Order Contents

To grant a FISA application, a judge sitting on the panel must find that:

1. the President has authorized the attorney general to approve applications for electronic surveillance for foreign intelligence information;

2. the application has been made by a federal officer and approved by the attorney general;

3. the target's past activities or facts submitted by the applicant under oath about its current or future activities establish probable cause to believe that (a) the target is a foreign power or agent of one (no U.S. citizen, permanent resident, or U.S. company or association may be deemed a foreign power or agent based solely on activities protected by the U.S. Constitution's First Amendment); (b) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or its agent; (c) the application specifies minimization procedures consistent with FISA's requirements; and (d) the application contains all documents required by law, and, if the target is a U.S. citizen, permanent resident, or U.S. business or association, that the facts submitted to support the government's assertion that the information to be intercepted is foreign intelligence information and that the interception is necessary are not clearly erroneous ( 1805).

FISA orders targeting foreign governments, factions of foreign nations, or entities that a foreign government openly acknowledges it directs and controls can remain in place for up to one year. Others must end within 90 days unless a judge extends them. Extensions for surveillance targeting any of the above entities or foreign-based political organizations not substantially composed of U.S. persons and entities that foreign governments direct and control may last for up to one year ( 1805(d)).

Minimization. FISA's minimization requirements are significantly different than those required under Title III. Unless the target is a United States person or the surveillance is likely to intercept communications of such entities, the law generally does not require minimization. With respect to U.S. persons, interception, retention, and distribution of nonpublicly available information must be consistent with the need of the United States to do so ( 1801h).

Generally, the law requires that nonpublicly available information that would reveal a U.S. person's identity not be revealed without his consent. But disclosures are permitted where (1) necessary to assess the meaning or importance of foreign intelligence information, or (2) the intercepted communication contains evidence of a crime.

Emergency Surveillance

The President may authorize electronic surveillance to gather foreign intelligence information without a court order for the first 15 days following a declaration of war ( 1811). The attorney general may also authorize surveillance for up to 24 hours when he determines that an emergency exists ( 1805). In latter case, he must obtain a court order prior to the expiration of the 24-hour period.

If court approval is not received, the contents of intercepted communications cannot be used as evidence or in judicial or administrative proceedings. If the intercepted information concerns a U.S. person, it cannot be disclosed to anyone other than the affected person unless the attorney general determines that it indicates a threat of death or serious bodily harm to any person ( 1805(e)).

By law, judges who deny emergency FISA applications must notify U.S. targets and U.S. persons whose communications were intercepted. But they can delay or excuse notification based on the government's ex parte showing of good cause ( 1806(j)).

Permitted Uses of Intercepted Communications

Information acquired under lawful FISA surveillance activities relating to U.S. persons may be disclosed only if the law's minimization standards have been observed, and only for lawful purposes. Those conducting FISA interceptions must retain and turn over to federal investigators communications they intercept that relate to the commission of crimes.

When disclosure is made for law enforcement purposes, it must be accompanied by a statement that such information may only be used in a criminal proceeding with the advance authorization of the attorney general ( 1806). Unlike communications obtained under Title III and ECPA warrants, subpoenas, and court orders, officials need not notify people whose communications they have intercepted under FISA authority. If the government intends to use them against the target in a criminal or administrative hearing, it must disclose this before the proceeding begins and target may move to suppress on the grounds that the information was unlawfully obtained or obtained in a manner not authorized by the FISA order ( 1806(e)).

The government may resist a criminal defendant's or other person's efforts to obtain copies of FISA applications and transcripts of intercepted conversations. Unlike most court proceedings, which are conducted publicly with all parties present, FISA allows the attorney general to file an affidavit stating that disclosure or an adversary hearing would harm the nation's security. In that situation, a court may privately review the application, order, and other materials relating to the surveillance and the government's arguments to determine whether the surveillance of the aggrieved person was lawfully authorized. It may disclose to the aggrieved person, under appropriate security procedures and non-disclosure orders, portions of these documents only where disclosure is necessary to make an accurate determination of the legality of the surveillance ( 1806(f)).

CRIMINAL AND CIVIL PENALTIES

State Law

Investigative officers who unlawfully intercept wire communications under the state wiretap law commit a class C felony, punishable by one to 10 years in prison, a fine of up to $10,000, or both (CGS 54-41e). These actions may also subject them to prosecution under the state's eavesdropping statute. Under that law, people who unlawfully wiretap or mechanically overhear a conversation commit a class D felony, punishable by one to five years in prison, a fine of up to $5,000, or both (CGS 53-189).

Investigative officers who disclose the contents of any intercepted wire communication or evidence derived from it to any person not authorized to receive it or in a manner not authorized by the wiretap law commit a class D felony, with the same potential penalties as described above (CGS 54-41t).

The people whose conversations were unlawfully intercepted or disclosed under either of the above laws may file civil lawsuits. They may recover their actual damages or, if it would result in a greater monetary award, liquidated damages. These are (1) the greater of $100 for each day a violation occurred or $1,000, (2) punitive damages, (3) attorney's fees, and (4) court costs (CGS 54-41r).

Defenses. Any person sued or prosecuted under the state wiretap or eavesdropping law has a complete defense to liability if he demonstrates that his activities were undertaken in good faith reliance on a court order (Id.)

Federal Law

Any person who engages in electronic surveillance under color of law, except as authorized by statute, or who discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was not obtained lawfully, is guilty of a federal offense. It is punishable by a fine of not more than $10,000. imprisonment for not more than five years, or both (50 USC 1809). In addition, intentional violations of the pen register statute are punishable by a fine of an unspecified amount, imprisonment for up to one year, or both (18 USC 3121(d)).

Aggrieved people, other than foreign powers or their agents, are entitled to sue violators of the above statute. Available damages are the same as those permitted under Connecticut law. Title III and ECPA also authorize civil actions and permit courts to order equitable or declaratory relief in addition to the monetary damages described above ( 2520 and 2707).

Finally, federal agencies or departments must initiate disciplinary proceedings whenever a court finds them in violation of ECPA and raises a question as to whether one of their officers' or employees' actions were willful or intentional (18 USC 2707).

Defenses. Law enforcement and investigative officers who conduct electronic surveillance in the course of their official duties are excused from civil and criminal liability if the surveillance was conducted pursuant to a search warrant or order from a court of competent jurisdiction (50 USC 1809). Title III also affords them a defense where they relied in good faith on a grand jury subpoena or legislative or statutory authorization (18 USC 2520).

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