Wiretapping is the act of recording communications between parties, often without their consent. While wiretaps can be a powerful tool for authorities conducting criminal investigations, they are also legally at odds with the right to privacy and the constitutional protection against unreasonable search and seizure. The Supreme Court, in Katz v. United States expanded the Fourth Amendment right to cover electronic wiretaps. The case recognized that wiretaps allowed third parties to gain access to the same type of information that one could access had they trespassed on private property.
Following the Katz decision, Congress passed the Electronic Communications Privacy Act (ECPA) in 1986. Title I of the ECPA, also known as the Wiretap Act, expressly prohibits the intentional use of wiretaps to intercept or attempt to intercept electronic communications. States also have their own wiretapping acts that mimic the language of the Wiretap Act. For example, New Jersey's wiretapping statute closely resembles the Wiretap Act in prohibiting the interception and disclosure of intercepted communications.
As a result of these protections, authorities, such as the attorney general, must receive authorization from a judge of competent jurisdiction to use wiretaps. The application for authorization is required by statute and must include key information such as: (1) the basis for suspecting an offense that warrants the use of a wiretap to investigate further; (2) whether other investigative means have been employed; and (3) the period in which the wiretap would be employed.
One of the most common means of contesting wiretaps and to prevent their evidence from being admitted, is challenging the necessity of the wiretap. For example, the Ninth Circuit has held that the subject of wiretapping had standing to suppress evidence where it was found that wiretapping was not necessary. This finding was justified on the basis that the government failed to show that they had (1) fully utilized other investigative procedures; and (2) that other investigative procedures would be unlikely to succeed, affirming the policy stance that wiretapping should only be used as a last resort when all other means would be insufficient.
[Last updated in May of 2022 by the Wex Definitions Team]