Electronic Surveillance

Overview

Electronic surveillance is defined in federal law as the nonconsensual acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or electronic communication, under circumstances in which a party to the communication has a reasonable expectation of privacy. The "contents" of a communication consists of any information concerning the identity of the parties, or the existence, substance, purport, or meaning of the communication.1

Examples of electronic surveillance include: wiretapping, bugging, videotaping; geolocation tracking such as via RFID, GPS, or cell-site data; data mining, social media mapping, and the monitoring of data and traffic on the Internet. Such surveillance tracks communications that falls into two general categories: wire and electronic communications. "Wire" communications involve the transfer of the contents from one point to another via a wire, cable, or similar device. Electronic communications refer to the transfer of information, data, sounds, or other contents via electronic means, such as email, VoIP, or uploading to the cloud.

The Fourth Amendment and Landmark Cases

Electronic surveillance can implicate the Fourth Amendment right of the people to be secure against unreasonable searches and seizures. The U.S. Supreme Court initially ruled in Olmstead v. U.S (1928) that electronic eavesdropping is not a search or seizure since the government intercepted conversations without entering the defendant's home and conversations aren't tangible things to be seized. However, the Court later overruled Olmstead in Katz v. U.S. (1967) and held that the Fourth Amendment protects any place where an individual maintains a reasonable expectation of privacy. Both cases involved wiretapping or bugging.

In Kyllo v. U.S. (2001), the Court addressed the constitutionality of using technology to survey the inside of a defendant's home without actually entering the home. Here, the Court held that physical invasion was not required to constitute a Fourth Amendment search if the surveillance reaped information that would not have been attainable without entering the home.2

On June 5, 2017 the Court granted a petition for a writ of certiorari to review U.S. Court of Appeals for the Sixth Circuit case Carpenter v. U.S.,3 concerning the use of an individual's cell-site records to map his location over a lengthy historic period. See the SCOTUSblog post on the case for more information. See also Adam Liptak, Supreme Court Agrees to Hear Cellphone Tracking Case, NY Times, June 4, 2017.

Reasonable Expectation of Privacy

Justice Harlan defines the privacy expectation in his concurrence in Katz, which is referenced in Kyllo, and states that a person must "have exhibited an actual (subjective) expectation of privacy and... that the expectation be one that society is prepared to recognize as 'reasonable.'" Thus, a person has a legitimate expectation of privacy if he honestly and genuinely believes the location under surveillance is private, and if a reasonable person in the same or similar circumstances would believe the location to be private as well. Therefore, the government has more latitude to legally survey communications in a public place than it does in a private place. Further, the courts have allowed the government to record conversations during jail visitations, provided that the surveillance reasonably relates to prison security.

Warrant Requirement

Because electronic surveillance is a search under the Fourth Amendment, it is subject to the same warrant requirements as other searches. To obtain a warrant, the government must show probable cause to believe a search is justified, describe in particularity the conversation to be intercepted, and provide a specific time period for the surveillance, among other requirements. See search warrant for more information.

As with other searches and seizures, exigent circumstances may serve as grounds for the government to forgo obtaining a warrant. If a situation threatens a person's life or the national security, or a conspiracy suggests the existence of organized crime, then the government may proceed without a warrant.

Domestic Surveillance Legislation

In 1986, Congress enacted extensive provisions regarding electronic surveillance in the Electronic Communications Privacy Act (ECPA). Courts have interpreted the Act to allow magistrates and federal judges to grant warrants to law enforcement officers 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 a remedy for individuals victimized by unlawful electronic surveillance. If someone performs electronic surveillance in violation of the ECPA requirements, the victim may sue for compensatory damages, punitive damages, and equitable relief, if equitable relief can rectify the harm. However, the plaintiff may only sue the individual who performed the surveillance, not any third-party who subsequently receives a copy of the collected data.

The Communications Assistance for Law Enforcement Act of 1994 (CALEA) and its Second Report and Order of 2006 requires that telecommunications companies cooperate with the government's targeted electronic surveillance efforts. Cooperation may include modifications to the design of equipment, facilities, and services.

Foreign Surveillance Legislation

Case law is split on the constitutionality of wiretappingforeign national's devices to obtain foreign intelligence. However, courts agree that warrantless wiretapping for the purpose of domestic security is unconstitutional.

In 1978, Congress enacted the Foreign Intelligence Surveillance Act (FISA), which lowers the required evidentiary showing to obtain a surveillance warrant with regard to foreign intelligence gathering and describes other procedures for physical and electronic surveillance relating to foreign intelligence. Its provisions also apply to American citizens suspected of espionage.

FISA permits electronic surveillance in two situations. First, it authorizes the President to use warrantless wiretapping if it relates to the protection of the United States against a potential grave attack, sabotage, or espionage, on the condition that the government does not tap any U.S. citizen. Second, federal law enforcement officials 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 (also created by the Act) must find probable cause that the individual targeted is a foreign power or the agent of a foreign power and that a foreign power uses or will use the place to be tapped. The FISA Court system is housed within the Department of Justice, and it deals 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 (NSA) to implement the use of domestic warrantless wiretapping to prevent future terrorist attacks. Some politicians and media outlets have criticized these directives as violative of the Fourth Amendment and FISA. See, however, emergency powers.

In July of 2007, President Bush signed into law the Protect America Act of 2007 (PAA), which amended FISA to loosen the warrant requirement by permitting wiretapping of any phone calls originating in or being received in a foreign country. The PAA expired after 180 days, at which time Congress declined to renew it. However, many provisions of the PAA were reauthorized in the FISA Amendments Act of 2008, and have been used as the legal basis for mass surveillance programs4 disclosed by Edward Snowden in 2013.5

The USA PATRIOT and USA FREEDOM Acts

In 2001, Congress enacted the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism 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 through electronic surveillance.

Among its surveillance-related provisions, the Patriot Act discarded the FISA 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 gave law enforcement that had obtained FISA warrants more time to conduct surveillance. Another provision directed that the acquisition of stored voicemails be governed by ordinary search and seizure law, not more-stringent surveillance law.

Controversially, the Patriot Act also authorized roving wiretaps, which occur when a court grants a surveillance warrant without naming the communications carrier and other third parties involved in the tap. The FBI and other intelligence-gathering organizations justify the use of roving wiretaps because terrorists are able to change computers, email accounts, or cellphones quickly upon learning that a device or account is tapped. Critics of the provision argue that it violates the Particularity Clause of the Fourth Amendment.

The original Patriot Act included a sunset provision for the law to terminate on December 31, 2005. Because federal courts struck down provisions of the Act as unconstitutional in the interim, Congress made certain substantive changes to the act and renewed the amended legislation in March of 2006. In May of 2011, President Obama signed the PATRIOT Sunsets Extension Act of 2011, which extended three provisions of the Act for another four years: roving wiretaps, searches of business records, and the surveillance of "lone wolves." When the extension expired in 2015, Congress enacted the Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act (USA Freedom Act), which restored many Patriot Act provisions, albeit modified. It also limited the surveillance powers of the FBI and NSA, though not as much as some civil liberties and human rights watchdogs would like.6

Last updated in July of 2017 by Stephanie Jurkowski.