Using electronic devices to keep surveillance over a person can implicate the investigated individual's Fourth Amendment rights. One form of electronic surveillance developed by law enforcement results in attaching a "bug" to a person's telephone line or to a phone booth and recording the person's conversation. Courts have held that this practice constitutes a search under the Fourth Amendment because the Fourth Amendment protects an individual's privacy rights for situations in which the person has a legitimate expectation of privacy. Courts have held that when having a telephone conversation, one would not expect an unknown third-party government agent to listen in on the conversation. A person has a legitimate expectation of privacy if the person honestly and genuinely believes the location under search to be private and if the reasonable person under the same or similar circumstances would believe the location to be private as well. Therefore, law enforcement has more leeway when intercepting communications in a public place than when the interception occurs in a secluded environment. The courts have given law enforcement the freedom to record conversation during jail visits, provided that the monitoring reasonably relates to prison security.
Two general categories of electronic communication surveillance exist. Wire communications refer to the transfer of the human voice from one point to another via use of a wire, cable, or similar device. When law enforcement "taps" a wire, they use some mechanical or electrical device that gives them outside access to the vocal transfer, thus disclosing the contents of the conversation. Electronic communications refer to the transfer of information, data, or sounds from one location to another over a device designed for electronic transmissions. This type of communication includes email or information uploaded from a private computer to the internet.
Because of their similarity to searches and seizures, the Fourth Amendment Warrant Clause applies to electronic surveillance as well. Obtaining a warrant for electronic surveillance requires showing probable cause, describing in particularity the conversation to be intercepted, providing a specific time period for the interception of the communications device, and noticing the property owner unless law enforcement can show exigent circumstances.
As with ordinary searches and seizures, exigent circumstances may serve as grounds for law enforcement to dispense with first obtaining a warrant. If law enforcement encounters a situation threatening a person's life, a conspiracy threatening the national security, or a conspiracy suggesting organized crime, then law enforcement may proceed without first acquiring a warrant.
Domestic Surveillance Legislation
In 1986 Congress passed extensive regulations regarding electronic surveillance and wiretapping in the Electronic Communications Privacy Act (ECPA). Courts have interpreted the Act as allowing magistrates and federal judges to grant law enforcement officers warrants to enter private homes in order to "bug" the home's means of electronic communication. Despite numerous constitutional challenges, the courts have repeatedly upheld these provisions.
The ECPA also provides remedy for those individuals victimized by unlawful electronic surveillance. If an individual uses a practice in contravention of the ECPA, the victim may bring suit for compensatory damages, punitive damages, and equitable relief, if equitable relief can rectify the harm. The plaintiff may only bring suit against the individual who performed the recording; plaintiffs may not sue any third-party that receives a copy of the recording and subsequently distributes it.
The Communications Assistance for Law Enforcement Act of 2006 mandates the telecommunication companies' cooperation when law enforcement engages in a wiretap. The cooperation involves giving law enforcement access to the systems and facilities necessary to track the communication of one subscriber without infringing on the privacy of another subscriber.
These two acts do not preempt the numerous state statutes dealing with wiretapping and electronic surveillance.
Foreign Surveillance Legislation
Case law is split regarding the constitutionality of wiretapping's use on foreign nationals for obtaining foreign intelligence; courts agree, however, that wiretapping for the purpose of domestic security does not pass constitutional muster.
In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA). The Act lowers the evidentiary showing needed to obtain a surveillance warrant with regard to foreign intelligence gathering and describes other procedures relating to physical and electronic surveillance relating to foreign intelligence. The Act's provisions also applies to American citizens suspected of espionage.
FISA's provisions permit electronic surveillance in two situations. First, FISA authorizes the President to use warrantless wiretapping if it relates to protecting the United States against a potential grave attack, sabotage, or espionage, on the that the government does not tap any U.S. citizen. Second, federal law enforcement may obtain a warrant for foreign intelligence taps that do not meet the criteria of the first situation. To obtain the warrant, the FISA court must find probable cause that the person to be tapped constitutes a foreign power or the agent of a foreign power and that a foreign power uses or will use the place to be tapped. FISA also created its own court system, housed within the Department of Justice. Known as "FISA courts" they deal exclusively with foreign intelligence warrant applications, orders directing compliance, and challenges to compliance orders.
Following the attacks on the World Trade Center in September of 2001, the Bush Administration ordered the National Security Agency to implement the use of domestic warrantless wiretapping to prevent future terrorist attacks. Some politicians and media outlets have scrutinized the policies as violative of the Fourth Amendment and FISA.
In July of 2007, President George W. Bush signed into law the Protect America Act of 2007 (PAA), which amended FISA for a period of 180 days. At the expiration of those 180 days, Congress would have to decide whether to renew the legislation. The PAA further loosened the warrant requirement by permitting wireless tapping of any phone calls originating in or being received in a foreign country. As of July 2008, Congress has not renewed the PAA.
The USA PATRIOT Act
Following the attacks on the World Trade Center in September of 2001, Congress enacted the USA PATRIOT Act of 2001 (Patriot Act). The Patriot Act modified portions of numerous electronic communications laws, including the ECPA and FISA, expanding the authority of federal law enforcement to combat terrorism.
Among the law's significant surveillance-related provisions, the Patriot Act discarded FISA's requirement that the President only conduct warrantless wiretaps against non-U.S. citizen, although it still protected U.S. citizens conducting First Amendment-related activities. Additionally, the Patriot Act provided more time for conducting surveillance to law enforcement officers who had obtained FISA warrants. Another provision changed the acquisition of stored voicemails from falling under the more-stringent surveillance laws to falling under ordinary search and seizure laws.
Although controversial, roving wiretaps also became legalized under the Patriot Act. A roving wiretap occurs when a court grants a surveillance warrant without naming the communications carrier and other third parties involved in the tap. The FBI and intelligence gathering communities find these necessary because terrorists have the ability to change computers, email accounts, or cellular telephones quickly upon reading an order and learning that the government had tapped their device. This provision concerned civil liberties activities because they felt it violated the Particularity Clause of the Fourth Amendment.
Because the initial Patriot Act included a sunset provision for December 31, 2005, Congress had to consider renewing the legislation in early 2006. In light of federal courts having struck down provisions of the Act as unconstitutional, Congress made certain substantive changes to the legislation. Nevertheless, in March of 2006, Congress passed and President Bush signed the amended renewal legislation into law.
electronic surveillance: an overview
U.S. Constitution and Federal Statutes
Federal Court Rules
Key Internet Source
- Criminal Law (Nolo)
- ABA Criminal Justice Section, Committee on Criminal Procedure, Evidence and Police Practices Committee
- Litigator's Internet Resource Guide: rules of court
- Federal Judicial Center Publications
- Senate Judiciary Committee
- House Judiciary Committee
- Vera Institute of Justice
Useful Offnet (or Subscription - $) Sources
- Good Starting Point in Print: Wayne R. LaFave & Jerold H. Israel, Hornbook on Criminal Procedure, West Group (2003)