AN OVERVIEW OF ELECTRONIC SURVEILLANCE IN THE
UNITED STATES; LAW, POLICY, AND PROCEDURE
Julie P. Wuslich*
I. INTRODUCTION
In the United States, there are two
p r im a r y l e ve l s o f g o ve r n m e nt — th efederal system and the state system. 1
Although these independent systems
each have their own governing bodies andlaw enforcement agencies, shared areasof legitimate governmental interests,
such as com ba ting drug- tra fficking,result in overlapping and concurrent
jurisdiction where the federal and state
governments act independently or evenjointly to address these mutual problems.
This discussion will focus on the use ofelectronic surveillance as an investigativetechnique used in the federal system andwill not discuss the systems of the various
states and their laws.
As practiced in the federal system,e l e c t r o n i c s u r v e i l la n c e ( c o m m o n l yreferred to as “wiretapping”) is one of themost effective law enforcement tools forinvestigating many types of criminale n t e r p r i se s . I n t h e U n it e d S t a t e s ,electronic surveillance has been usedsuccessfully to prosecute traditionalorganized crime (the American mafia or
La Costra Nostra), large drug-trafficking
organizations, violent street gangs, andcriminals involved in various types of* Chief, Electronic Surveillance Unit, Office ofEnforcement Operations, Criminal Division,

public corruption and fraud. In a recent,for example, electronic surveillance wasused successfully to uncover a fraud
scheme that victimized the McDonald’s
restaurant chain a nd its customers.
McDonald’s was sponsoring games ofchance for its customers, which involved
prizes of up to one million dollars. The
defendants, who were responsible forrunning the contests for McDonald’s, preselected the winners in exchange for a
portion of the prize money. In this case,the electronic surveillance led to thea r r e s ts o f s e ve r a l p e r s o n s w h o a r ecurrently awaiting trial.1
Since 19 90, the num ber of federa linvestigations using electronic
surveillance has increased dramatically,
and that trend is expected to continue. In
1990, federal law enforcement agencies
su bm i tte d a to ta l o f 791 e le c tr o nic
surveillance requests to the Departmentof Justice for approval. Between October
1, 2000, and September 20, 2001, thefederal agencies submitted over 1,700
electronic surveillance requests. Over the
past ten years, there has been not only an
increase in the number of electronic
surveillance requests, but also a growing
number of investigations that have multijurisd ictional and international
components, particularly in the area of
drug trafficking and alien smuggling,

United States Department of Justice** As a consequence of the terrorist attacks in the1

The federal system includes federal law affecting

U.S.A. on 11 September 2001, Ms. Wuslich was

all 50 states, as well as the territories of theu n ab l e to a t te n d th e 1 1 9 th I n te r n a ti o n a l

United States Virgin Islands, the District ofTraining Course. Copies of the two lectures Ms.

Columbia, Puerto Rico, Guam, and the Northern

Wuslich had prepared were distributed to all ofMariana Islands. The state system is comprised ofthe participants.

the 50 state governments.

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119TH INTERNATIONAL TRAINING COURSE
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whe re A merican traffickers andsmugglers have co-conspirators overseas
and in multiple states within the UnitedStates. Crime, once primarily a local
concern, has gone global. The
proliferation of the Internet and the useof hand-held communications devices,such as cellular telephones and two-way
p a g e r s , ha s i n c r e a se d a c r i m i n a l’ smobility, expanded the reach of his or her
criminal enterprise, and shortened thetime necessary to plan and execute eventhe most complex crimes.
While electronic surveillance is a very
valuab le technique, and ha s yielde dtremendous results in some significant
investigations, it is also a very intrusiveo n e t h a t i m p l ic a t e s p r iv a c y r i gh t s
p ro te c t e d un d e r th e U n it e d S t a t e sConstitution, particularly the Fourth
A mend ment p rotection against
unreasonable searches and seizures. For
that reason, significant legal and policy
restrictions have been placed on the useof electronic surveillance in the UnitedStates, mostly imposed by Congress ands om e im p os e d b y th e c o ur ts . T he s e
restrictions are designed to balance theneeds of law enforcement to fight crime
against the right of citizens to be free ofoverbroad or unnecessary government
intrusion into individual privacy.
II. LEGAL REQUIREMENTS
A. Background Of Title III
In 1968, the United States Congressenacted the federal electronic
surveillance statutes, which are often
referred to as Title III of the Omnibus
Crime Control And Safe Streets Act of1968 (hereinafter, “Title III”).2 Congressenacted Title III in response to several
United States Supreme Court decisions
recognizing the applicability of2

18 U.S.C. §§2510–2522.

constitutional protections to anindividual’s communications, andbecause it wanted to regulate the use ofelectronic surveillance by law
enforcement and private citizens, resolve
conflicts in the law, set a federal standard
by which electronic surveillance would be
conducted and, most importantly, tocombat organized crime.3 In 1968,
organized crime (La Cosa Nostra) was
seen as a plague on American society, andwas credited with controlling various
crim ina l en terp rise s, su ch a s dr ugtrafficking, gambling, loansharking, andprostitution, and corruptly influencing
legitimate businesses, labor unions, andthe political process.
While Congress wanted to give law
enforcement an effective tool to eradicate
organized crime, it also wanted to tightly
control the use of electronic surveillance
to avoid abuse of the technique and toprotect individual privacy, as
constitutionally required. To accomplishthese conflicting, yet important goals,
Congress: 1) enacted a two-step approval
process requiring Executive and Judicial
Branch concurrence for two of three typesof communications a law enforcement
officer is permitted to intercept; 2) limited
the types of crimes for which electronics u r v e i ll a n c e c a n b e a u t h o r i z e d ; 3 )restricted ele ctronic surveillance tothirty-day intervals and; 4) required thegovernment to submit an affidavit to theauthorizing authorities w hich would
justify the electronic surveillance ando ut lin e h o w t he g o v e rn m e n t w o u ld
comply with the statutory requirements.
Each of these fundamental requirements
and their related statutory components
will be discussed, in turn.

3

United States Senate Report No. 1097, 90th
Congress, 2nd Session, 1968.

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B. The Approval Process
When law enforcement agents of agovernment investigative agency want to
conduct a wiretap over a telephone or
install listening devices in a location, theymust obtain approval from two entities.4
First, they must obtain approval from astatutorily specified high-level official at
the Department of Justice, who mustco ncur in the nee d for the pro pose dinterception and find that it meets all of
the statutory and constitutional
requirements. The Department official
does not authorize the interception, but
in ste a d a u tho r iz e s the go ve r nm e nt
agents to apply to the appropriate federal
co urt fo r an order authorizing theinterception. Second, the agents mustthen obtain such an order from a federal
district court judge. Congress enacted theprovision requiring Justice Departmenta pprov al becau se it b el ieved t hat
centralized review by the Department
would promote national uniformity in theway electronic surveillance wasconducted, and because Congress wanted
to hold a politically accountable official
responsible for any abuses that mightoccur.
With regard to approval by a judge,
C o ng re s s e n act e d th is p r o vi sio n inaccordance with constitutional principles
t ha t req ui re a det ached and neutral
authority to review and authorize certain
types of law enforcement action directedagainst the citizenry.
Unless the government has obtained
both approvals, and in the correct order,
it cannot conduct the electronic
surveillance.5 If the government fails to
get both approvals, but conducts theelectronic surveillance, the evidence mustbe suppressed and the government will
not be allowed to use that evidence, or
any derivative evidence, at trial.6
The approval process at the JusticeDepartment usually takes a few days andinvolves the following process. When afederal investigative agency and theUnited States Attorney’s Office in thelocation where the crime is beingcommitted7 is ready to conduct electronic
sur ve illan ce in an in ve stig atio n, its u b m i ts a n a f f i d a v it a s p a r t o f i t sapplication8 to conduct surveillance to theElectronic Surveillance Unit, which ispart of the Justice Department’s
Criminal Division. An attorney in that
U nit re vie w s th e a ff id a vit f or le ga lsufficiency. If the affidavit meets thestatutory requirements, it is forwarded tothe appropriate high-level official forreview along with a recommendation thatthe request be approved. If the official
a g re e s t h a t t h e a f f id a v it i s l e g a l l y
su f f ic ie nt , h e o r s he w i ll g ra n t t herequest. At that point, the government
may submit the application and approved
affidavit to a judge, who may grant ordeny the request to conduct thesurveillance. If the judge grants there quest, he or she will issue aninterception order, which allows the law
enf orcement agency to conduct
surveillance over a particular telephone/facility or within a particular location fora thirty-day period. Most judges will issue
6

United States v. Chavez, 416 U.S. 562 (1974).

7

Many times throughout this paper, the term
“government” is used to refer collectively to thefederal investigative agencies and the United
St atesAtt orn ey’s

Offices,orth eirrepresentatives.
8

18 U.S.C. §2518(1); United States v. Williams,
124 F.3d 411 (3d Cir. 1997)(The procedure of4

18 U.S.C. §2516(1).

s ubmit tin g a s worn af fid av it by a law

5

United States v. Reyna, 218 F.3d 1108 (9th Cir.

e n f o r c e m e n t o f fi c e r , w h i c h i s a t ta c he d to2000).

prosecutor’s application, is sufficient.).

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119TH INTERNATIONAL TRAINING COURSE
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the order the same day they receive therequest from the government.
It should be noted that when Title III
was amended in 1986 to specifically provide for the interception of electronic communications, which are communications
tha t o ccur, i nter alia, o ver a paging
device, a computer, or a facsimile
machine, Congress required only
approval by a judge, without the predicate Department review and approval. 9
Congress did not consider the interception of these communications to involvethe same level of intrusion into a person’s
privacy as the interception of a person’s
telephone calls or private conversations.
Nevertheless, by agreement between
Congress and the Justice Department,internal Department policies require
review and approval prior to applying to
the court for an order authorizing theinterception of electronic communications
over computers, facsimile machines, andtwo-way paging devices.
The requirements for the government’s
affidavit in support of the electronic
surveillance application to the court are
discussed below.
C. The Affidavit
1. Sworn to by a Law Enforcement
Officer
L ike a trad itional sea rch w arrant
under longstanding United States law,
Title III requires the application to bem a d e b y a f e de ra l la w e nf o rce m e nt
officer, who has investigative and arrest
powers for the crimes under investigation
and who swears to the facts andstatements set forth in the affidavit.10 As
918

U.S.C.

§2516(3);The

Electronica matter of policy, the Department ofJustice lim its the numb er of federa lagencies which can conduct electronic
surveillance. The Department does this toensure that only the agencies with themost expertise, resources, and experiencecan conduct electronic surveillance as
p a r t o f th e ir i nv e s tig a tio n s . T ho s eagencies that are not historicallyapproved to conduct ele ctronic
surveillance can do so only whenpartnered w ith an a pproved agency,
usually the Federal Bureau of
Invest igati on (“ FBI”), where both
agencies have jurisdiction over the crimes
under investigation.
2. Identifying the Persons Committing
the Crimes
Title III requires the government to
identify by name, if it can, the persons
who are committing the crimes underinvestigation and who are expected to beintercepted over the specified telephone
or within the location. 11 This provision
serves two purposes. First, it requiresthat the government determine if thepersons identified in the affidavit haveb ee n the sub je c t o f p rio r e le ctro nic
surveillance.12 If they have, thegovernment must include in the affidavit
all of the information about such priorsurveillance. One of the reasons thisinformation is required is so that thejudge may determine if the government isbeing overzealous in its investigation ofthese individuals, such as could be thecase if numerous, prior court-authorizedinterceptions had failed to produce any
evidence of criminal involvement by thetargets. In such a situation, the judge
may require the government to justify therequest.13 Second, at the conclusion of the
10 18 U.S.C. §2518(1).

Communications Privacy Act of 1986, United

11 18 U.S.C. §2518(1)(b)(iv).

States Senate Report No. 541, 99th Congress, 2nd

12 18 U.S.C. §2518(1)(e).

Session, 1986.

13 18 U.S.C. §2518(2).

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RESOURCE MATERIAL SERIES No. 59
investigation, the government must given o tic e to th e p e r so ns n a m e d in th eaffidavit that they were intercepted sothat these persons can prepare theirdefen se if charges are brought, orotherwise challenge the legality of thesurveillance.14
3. Identifying the Facility or the
Location and the Type ofCommunication
Next, unde r Title III, and incompliance with the Fourth Amendment,
the go ve rnment m ust identify, withparticularity, the telephone facility or
location that will be the subject of theelectronic surveillance, and the type ofcommunication that will be intercepted,
i . e . , te l e p h o n e c o n ve r s a t io n s ( w i r ecomm unications),
face-to-faceconversations (oral communications), or
computer transmissions, pager data, orf a c sim il e tr ans m issi on s ( e lec tr on ic
communications). 15 This requirement
ensures that the law enforcement officer
who is conducting the surveillance knows
what facility or location—and what kindof communications—he or she is allowed
to inte r ce p t. T his p re ve nts th e law
enforcement officer from conducting ano p e n- en d ed or o ve rly b r oa d se a rc h,targeting any telephone or location usedby a subject (except for “roving”
interceptions, discussed infra). However,once the government has established thata particular telephone or a location is
being used to facilitate criminal activity,
the court’s order generally provides thatt he gov ernm en t can in tercept th ecrim ina l-rela ted com munications o fanyone who may use that telephone or
locatio n, and not just those p ersons
named originally in the court order.16

The exception to the particularity
requirement is the “roving” provision of
Title III. Under Title 18, United States
Code, Section 2518(11), the government
can obtain a court order for a 30-day
period to intercept communications overany telephone/facility or within any
location that a specific subject may beusing to commit the crimes. For example,
drug traffickers often use a series ofdifferent cellular telephones to carry out
their criminal activities, and will often
use a telephone for only a few days inorder to prev en t la w enforcemen t
detection of their crimes. By the time thegovernment has identified the telephone
the sub ject is using and obtains therequisite approvals, the subject may nolonger be using it. The roving provision
allow s t he go ve rn m en t to inte rce p t
communications over any telephone thesubject may obtain and use during the 30day period as long as the government canshow that the subject’s behavior has theeffect of thwarting its ability to intercept
his or her calls, and that the subject has apattern of using multiple telephones to
conduct his or her criminal activity. With
respect to a location, the government
must show that it is unable to specify inadvance to the reviewing court where thesubject and his or her co-conspirators will
be meeting to conduct their criminal
activity. In one case, the governmento b ta in e d a c o ur t o rd e r t o in te rc e p t
communications of Mafia members who
were planning to conduct a ceremony toinduct ne w m em b ers into the crimefamily.17 The government’s confidential
informant, who would be present at theceremony, would not learn of the meeting
location until a few hours before thecerem ony w as to take place. A morere cent example involved a public
corruption case, wherein the subject of

14 18 U.S.C. §2518(8)(d).
15 18 U.S.C. §2518(1)(b)(ii), (iii).
16 United States v. Kahn, 415 U.S. 143 (1974).

518

17 United States v. Ferrara 771 F. Supp. 1266 (D.

Mass. 1991).

119TH INTERNATIONAL TRAINING COURSE
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the investigation scheduled meetings
with his co - consp irator s at the lastminute to make bribe payments, and had
not been seen meeting with them at thesame location twice.
After the government obtains a court
order to conduct roving interceptions overdifferent telephones or within different
loca tions, the governme nt m ay o nlyintercept the com munications of thesubjects identified in the affidavit as theusers of the telephones or locations, andsubjects in communication with them. Ifother subjects of the investigation areusing the telephones or locations, without
the named subjects also participating in
the com munication, the governme nt
cannot intercept those communications,even if they are criminal in nature.18
4. Listing the Crimes under
Investigation
T i tl e I I I a l lo w s f o r e l e c tr o n i csurveillance only when the government isinvestigating one of several crimes listed int he s ta tu te . C o n gr e s s d e c id e d t ha telectronic surveillance should be used toinvestigate only the most serious types ofoffenses. If the government wants to
wiretap a telephone (wire communications)or install listening devices in a location tocapture face-to-face communications (oralcommunications), the government must be
investiga ting one of the enumeratedo f f e ns es l iste d in T itle I I I . 1 9 I f theg o v e r n m e n t w a n t s to i n te r c e p t
communications over a computer, a pager,o r a f a c s i m i l e m a c h i n e ( e l e c tr o n i ccommunications), the government only
needs to be investigating a federal felony
offense, which again recognizes Congress’sview that electronic communications
18 United

warrant lesser protection than required forwire and ora l comm unica tions. 2 0 By
requiring the government to identify which
crimes are under investigation, the statutea g a i n e n su r e s t h a t t h e e le c t r o n i csurveillance will not be overly broad or
unnecessarily intrusive.
5. Establishing Probable Cause
In accordance with the FourthA m e n d m e n t , T it l e I I I r e q u i r e s th e
government to outline the facts that show
a particular telephone or location is being
use d to fa cilita te the comm issio n ofcriminal acts. 21 There are several ways
the government can do that. For example,
the government may have a confidential
inform ant or an underco ver law
enforcement agent who can engage thesubject in a discussion of criminal activity
during a call over the telephone or during
a meeting within the location. The drug
dealer may instruct the informant to callthe drug dealer on a particular telephonewhen the informant wants to buy cocaine.
Thereafter, the informant calls the drug
dealer at that telephone. During the call,the informant asks to buy a quantity of
cocaine and the dealer agrees to make thesale at a nearby parking lot. The
informant travels to the parking lot,meets the dealer, and buys the cocaine. It
is clear from that chain of events that thedr ug dealer used the telephone tofacilitate his or her drug business.
6. Establishing the Need for theElectronic Surveillance
Because electronic surveillance is so
intrusive, the government must show
w hy it n e e d s t o c o n d u c t e l e c t ro n ic
surve illa nc e to g ath er the ev id e nce
necessary to prosecute the subjects. 22
Specifically, the government must stateStates v. Gaytan, 74 F.3d 545 (5th Cir.

1996); United States v. Jackson, 207 F.3d 910

20 18 U.S.C. §2516(3).

(7th Cir. 2000).

21 18 U.S.C. §2518(1)(b).

19 18 U.S.C. §2516(1).

22 18 U.S.C. §2518(1)(b).

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RESOURCE MATERIAL SERIES No. 59
what other investigative procedures havebeen tried, and if not, why they would be
u n l ik e l y to s u c c e e d o r w o u ld b e t odangerous to use. These other procedures
includ e p hysica l surveilla nce o f thesubjects, search warrants executed at
locations or residences known to be usedby the subjects, interviews of the subjects
or their associates, the use of a grand jury
to investigate the subjects, examinationof telephone records for their telephones,
and seizures o f contraband. If thegovernment has not performed each ofthese investigative techniques, it must
explain why it cannot do so, or, even if it
did, why using the technique would not
be sufficient in and of itself to meet thegoals of the investigation. For example,
the government may have conducted
physical surveillance of the subjects, but
the subjects observed the surveillancea g e n ts a n d s t o p p e d t h e i r c r i m i n a lactivitie s, or the subje cts ro utinely
engage in counter- surveillancemaneuvers, which create a danger to thepolice officers or others, or the subjects
live or travel in an area that makes such
surveillance difficult. In one case, the FBI
was investigating a cocaine conspiracy ina small town. One day, FBI agents wereconducting physical surveillance, and themayor of the town began to follow theagents. The mayor escalated his pursuitof the agents and forced the agents todrive out of town. The FBI learned laterthat the mayor chased the agents because
they were suspicious strangers.
Moreover, the government may have usedconfidential informants or undercoveragents at one time in their case producing
some evidence supporting theinvestigation, but the subjects discovered
their identities and to continue to usethem would compromise their safety. The
governm ent may also have seizedc ontra b a nd f rom a vehicle d uring asearch, but the driver of the vehicle
refuses to cooperate or was only privy to520

limited information about the person towhom he was delivering the drugs.
7. Prior Electronic Surveillance
Title III requires that the government
set forth in the affidavit whether any of
the subjects, facilities, or locations havebeen the subject of prior surveillance.23
The government is required to give a fulland complete statement of any priorelectronic surveilla nce orders. Tha tstatement includes the dates of the priororders, the names of the subjects of theinvestigation in those orders, and what
facilities or locations were the subject of
the electronic surveillance. As explained
previously, one of the purposes of thisrequirement is for the judge to determine
if the government is being overzealous inits investigation of these individuals.
These checks must be done by all of theinvestigative agencies that may haveconducted electronic surveillance of thesubjects, and not just the agency making
the instant request.
8. Statement of Time
Under Title III, the government can
only conduct electronic surveillance for aperiod of up to 30 days, and the affidavit
must contain a statement to this effect.24
If th e government has not met its
investigative goals during the first 30
days of interceptions, the government
may seek approval from the Departmentof Justice an d the j ud ge to c ond uc tinterceptions for another 30-day period.
Each time the government applies for an
extension order, it must describe theevidence derived from the wiretap anddemonstrate a continuing investigativeneed to intercept the communications. 25
There is no statutory limit on the numberof times the government can seek to
23 18 U.S.C. §2518(1)(e).
24 18 U.S.C. §2518(1)(d), (5).
25 18 U.S.C. §2518(1)(f).

119TH INTERNATIONAL TRAINING COURSE
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extend the electronic surveillance. Aslong as the government meets th e
statutory requirements each time, andthe judge so permits, the government
may continue to conduct surveillance.
T he a vera ge e le ctr onic surveilla nce
investigation is conducted forapproximately four months. It is thee x ce p t io na l e le ct ro n ic s ur v ei llan c einvestigation that lasts for a year or
longer.
9. Minimization
Title III requires that the government
minimizetheinterceptionofcommunications not related to the crimes
under investigation. 26 This means thatthe government is required to terminate
the interception of the communicationw h e n t h e c o m m u n i c a t io n d o e s n o t
conce rn the crim ina l ma tters und er
inv estigation or any oth er type of
criminal activity.27 For example, if a law
enfo rcem ent of ficer is liste ning to atelephone call and the subjects are nottalking about their identified criminal
activities or any other crime, the officer
must turn off the monitoring equipment.
After a reasonable interval, the officerc a n tu rn th e e q ui p m e n t b a c k o n t odetermine if the call has become criminal
in nature. If the subjects are now talking
about their crimes, the officer can listen
to and record the call. When monitoring acall, the officer may have to turn theequipment off and on several times. To
26 18 U.S.C. §2518(5).
27 Congress anticipated that communications about

crimes that were not identified in the order might
be inter cepted during a la wfully co nduc ted
wiretap. The government may intercept thosecom m u ni cati on s, a nd d is s em i na te thos ecommunications to law enforcement officers fordetermine if the government lawfully
minim iz ed the comm unica tio ns, thecourts consider the following factors: 1)
the number of co-conspirators; 2) the
com plexity of the crim es beingcommitted; 3) the size and longevity of
the criminal enterprise; 4) the actions
take n by the m on ito ring o f f ice rs tominimize the co mm unications andwhether they showed a high regard forthe subjects’ privacy; 5) the use of codedlanguage by the subjects; 6) whether the
telephone or the location is the center ofthe criminal activity; 7) judicial review
and approval of the minimization efforts;
and 8) whether the monitoring agentswere adequately instructed on the proper
minimization techniques.28
There is a statutory exception to therequirement to minimize communications
as they are occurring. If the subjects areconversing in a foreign language or in acode that the law enforcement officers do
not understand, and the government does
not have translators available totranslateandminimizethecommunications as they are occurring,
Title III allows the government to record
the conversations in their entirety andminimize the conversations later.29 This
procedure is called “after-the-fac t
minimization.” The key to after-the-fact
minimization is that the process usedm u s t p r o t e c t th e s u b j e c t ’ s p r i v a c yinterests to approximately the same
ex tent as would contemporan eou s
minimization. To achieve this result,translators are told to translate only the
portions of the recorded communications
that seem relevant to the crimes underinvestigation. The translators then give
only the relevant portions of thecommunications to the law enforcement

further investigation. If the government wants to
use those communications in subsequent court
proceedings, it may do so if it obtains an orderunder 18 U.S.C. §2517(5).

28 United States

v. Parks, 1997 WL 136761 (N.D.

Ill.).
29 18 U.S.C. §2518(5).

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RESOURCE MATERIAL SERIES No. 59
officers investigating the case. The nonrelevant parts of the communications areplaced under seal with the court and are
not reviewed by the law enforcement
officers.30
While not explicitly provided for in
Title III, there are other instances when
the government cannot minimize theinterception of communications as they
are occurring, but must intercept, record,
and review the entire communication todetermine its relevance to theinvestigation. 31 One instance involves
electronic communications over facsimile
machines, computers, and pager devices,
and another instance involves voice-mailleft on a telephone system. Given thenature of the communication and the way
it is transmitted, the government must
intercept the whole communication anduse the af te r- the- fa ct minim iz a tion
procedures, disclosing and using only
those communications that are relevantto the investigation, and sealing theinformation that is not relevant.
III. EMERGENCY INTERCEPTIONSCongress, in recognizing that there are
emergency circumstances under which
the normal approval processes must be
circumvented, enacted a provision by
w hich law enforcement may conduct
electronic surveilla nce w ithout firstobtaining a court order. A discussion ofthat provision follows.
With the approval of a highly-placed
Department of Justice official, Title III
allows the governmen t to c on duc tinterceptions over a particular facility orwithin a location without first obtaining acourt order when: 1) there is an imminent
threat of death or serious bodily harm to
an individual; 2) there is a threat tonation al s ecu rity; or 3) events
characteristic of organized crime are aboutto occur, and interceptions must beginb e f o r e a c o u r t o r d e r c a n , w it h d u e
diligence, be obtained in order to preventthe harm, forestall the threat, or captureevidence of the organized crime activity.32
To illustrate these principles and theprocess involved, consider the following
example. The FBI receives informationthat several armed gunmen have robbed abank and have taken hostages. Upon
arrival at the scene, the FBI observes
through the windows of the bank threemasked, armed gunmen and four
hostages, bound and blindfolded. The FBI
also sees that one of the gunmen is talking
on a cellular telephone, leading them tobelieve that the gunman is conversing
with co-conspirators. The FBI hostage
negotiator reports that the gunmen are
making demands for money and safe
passage from the bank and out of thecountry, and that they want to take one of
the hostages with them. The gunmen havegiven the FBI four hours to comply with
their demands. At this stage, the FBI
identifies the telephone that the gunman
is using 33 and decides to contact the
telephone company to obtain records forth e te le p h o n e t h a t w i ll s h o w w h a t
telephone numbers are being called fromthe gunman’s telephone.34 An analysis of
the c alling re cord s re veals that th egunman’s telephone is being used to call atelephone that is registered to the person
who also appears as the registered owner
32 18 U.S.C. §2518(7).

30 United

States v. David, 940 F.2d 722 (1st Cir.

33 Whenturned on, a cellular telephone emits1991); United States v. Padilla-Pena, 129 F.3d

certain signals. Law enforcement can capture

457 (8th Cir. 1997).

these signals through specialized equipment and

31 United States v. Tutino, 883 F.2d 1125 (2nd Cir.

1989).

522

identify the telephone.
34 18 U.S.C. §2703(c)(1)(C).

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
of a suspected getaway car parked outsideof the bank. (A check of motor vehicle
records reveals that the name and address
info rm ation liste d for this person is
fictitious.) Unable to proceed further, theFBI decides to seek emergency
authorization to intercept communications
over the telephone used by the gunman.
The FBI hopes to obtain information thatwill h elp to resolve the situation
peacefully, as well to gather evidence
about the identities of the gunmen andany of their co-conspirators. To begin thep r oc e ss, th e F B I co nta cts a f ed e r a lprosecutor in the appropriate UnitedStates Attorney’s Office, who contacts the
Criminal Division of the Justice
De p ar tme nt and talks to one o f thelawyers in the Electronic Surveillance
U n it . T h a t l a w y e r c o o r d i n a t e s t h e
a p p r o v a l p r o c e s s o r a l ly w it hi n th e
Department and with the FBI, and one
hour later, th e Attorn ey Generalpersonally grants the head of the FBI
permission to decide whether an
emergency situation exists as defined by
the statute and, if so, to intercept calls
over the gunman’s phone.
From the time the Attorney Generalauthorizes the interception, theprosecutor has 48 hours to obtain a court
order approving the emergency
interception. The court order must be
based on a written affidavit that is sworn
to by a law enforcement officer and sets
forth the facts known at the time theemergency was authorized by the
Attorney General. If the prosecutor fails
to obtain the order within the 48-hourtime period, the intercepted telephone
calls and any evidence derived from theelectronic surveillance must be
suppressed. If the emergency situation
has not been resolved within the 48-hour
period, and the government wants toco ntinue to inte rce p t ca lls o ve r th e
telephone, the government must submit

an affidavit to the Department of Justicefor approval to seek a court order to do so.
It is important to note that all of therequirements of Title III apply toemergency situations. The government
must have probable cause to believe that
communications about a crime listed in
the statute will be intercepted over the
telephone/facility, or within the location,a n d t h a t a l t e r n a t iv e i n ve s ti g a ti v etechniques will not suffice to prove thecrimes or forestall the danger or threat.
IV. POST-INTERCEPTIONREQUIREMENTS
A. The Sealing Requirement
Title III requires that when thegovernment has concluded its electronic
surveillance investigation, it must takethe original record ings of thecommunications and place them underseal with the court.35 The sealing
requirement ensures the integrity of therecordings and enables their use at trial.
I f th e g o v e r nm e nt f a i ls to s e al th erecordings in a timely manner, the court
may prohibit their use at trial.36 Because
sealing is only required at the end of theelectronic surveillance investigation, thegovernment could co ntinue theinterceptions for over a year without
having to seal the recordings. However,the Justice Department recommends
sealing the recordings every 30 days toensure the continuing evidentiary valueof the recordings.
B. The Notice Requirement
Within 90 days of the conclusion of theelectronic surveillance investigation, thego ver nm e nt m ust no tif y th e na m e dsubjects that they were the targets of anelectronic surveillance investigation. 37
35 18 U.S.C. §2518(8)(a).
36 United States v. Ojeda-Rios, 495 U.S. 257 (1990).
37 18 U.S.C. §2518(8)(d).

523

RESOURCE MATERIAL SERIES No. 59
This provision gives the subjects theopportunity to challenge the electronic
surveillance evidence. If, at the end of the
90-day period, the government is still
investigating the subjects, it may seek topostpone the notice for another 90 days,or until further order of the court.
V. ACTIVITY NOT COVERED BY
TITLE IIIA. Consensual Recordings
Title III, by its terms, does not apply tothe interce ption and recording of
telephonecalls,
face-to-faceconversa tions, or computer or pager
transmissions that are made by a law
e n f o r c e m e n t o f f ic e r , a c o n f id e n t ia linformant, or a private citizen, when thatpe rson is a participant in thecommunication.38 The legal rationale isthat a person does not have a reasonable
expectation to believe that the personwith whom he or she communicates willkeep his or her confidence. 39 Therefore,
the government does not have to obtain
Department of Justice approval or a court
order before an undercover government
agent or a confidential informant may
record a telephone call or a conversation
with the subject of a criminal
investigation. Additionally, a private
citizen may record his or her
communications with others as long as heor she is not recording thec o m m un ic a t io n s f o r t he p ur p o s e o fcommitting a crime or a tortious act. An
example of a criminal or tortious act
would be that the communication wasrecorded in order to blackmail someone.

that person’s criminal culpability, andthey are commonly used to establish thata person is using a location or a telephone
to facilitate the commission of a crime.
Therefore, consensual recordings are avery valuable technique for law
enforcement to use when a government
agent or an informant has gained thetrust of someone suspected of criminal
wrongdoing.
B. Prison Monitoring
Under Title III, the government may
monitor inmate calls o ver priso ntelephon e lines without obtainin g
Department of Justice approval or a court
order. Specifically, 18 U.S.C. §2510(5)(a)all ow s t he recording of teleph one
co n ve rs a tio ns o f inm a te s b y p ris o n
officials to ensure the safe and orderly
administration of the prison. If, however,
the government wants to investigate thecriminal activities of a particular inmate
involving crimes with persons outside of
the prison system, the Department ofJustice, as a matter of policy, requires thegovernment to obtain its approval and acourt order to conduct the electronic
surveillance.
C. Video Surveillance
Another common investigativetechnique that is not proscribed by Title
III involves the use of closed-circuit,hidden cameras to record a subject’s
criminal conduct. Although Title III does
not regulate or prohibit the use of video
surveillance, several court opinions havecircumscribed its use. 40 In accordance
40 United

States v. Falls, 34 F.3d 674 (8th Cir.

1994); United States v. Koyomejian, 970 F.2d 536

Consensual recordings of a person’scommunications are strong evidence of(9th Cir. 1992); United States v. Cuevas-Sanchez,

38 18 U.S.C. §2511(2)(c), (d).

Biasucci, 786 F2d 504 (2d Cir. 1986); United

39 Lopez v. United States, 373 U.S. 427 (1963); Hoffa

States v. Torres, 751 F.2d 875 (7th Cir. 1984);

v. United States, 385 U.S. 293 (1966); United

United States v. Mesa-Rincon, 911 F.2d 1433

States v. White, 401 U.S. 745 (1971).

(10th Cir. 1990).

524

821 F.2d 248 (5th Cir. 1987); United States v.

119TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
with these opinions, the government
must obtain a court order to conduct
video surveillance in any area where thesubject has a reasonable expectation ofprivacy. The court order must be based ona warrant sworn to by a law enforcement
officer that establishes reason to believethat the subject(s) will be engaged incriminal conduct in the location that will
be videotaped. Video surveillance is often
used in drug-trafficking cases where thegovernment believes that contraband will
be stored at, or delivered to, a particularlocation, and it wants to identify the
persons involved in the drug activity.
VI. SUPPRESSION OF TITLE III
EVIDENCE
Title III contains a statutory
suppression rule that provides that theg ov ernmen t can not use electron ic
surveillance evidence or any evidence
derived from the surveillance in a court
proceeding if: 1) the communications
were intercepted unlawfully; 2) the court
order app roving the electronic
surveillance was insufficient on its face;or 3) the interceptions were not conductedin accordance with the order. 41 Because
the court order authorizing the electronic
surveillance is based on an ex parte, incamera showing of facts by thegovernment, the judge who authorized
the w ire ta p, w hen p resente d w ith adefense motion to suppress, m ay
reconsider the original facts and decidethat suppression is warranted. A court
hearing to determine if the evidence will
be suppressed is triggered by a motion to
suppress the evidence by the defendant’s
attorney.42

Title III evidence has been suppressed
because the government failed toestablish an investigative necessity forthe electronic surveillance. 43 Title III
e vi d e n c e ha s a ls o b e e n s up p r e ss e dbecause the government failed todetermine if the subjects had been thesubject of prior electronic surveillance,44
and when the government failed to obtain
Department of Justice approval before it
obtained the court order for the electronic
surveillance.45
Because of the safeguards placed onth e go ve r nm e n t ’ s u s e o f e l e c t r o n ic
surveillance, Title III evidence is rarely
suppressed.
VII. CONCLUSION
While Title I II lim its go ve rnm ent
conduct with regard to the use ofelectronic surveilla nce, this la w ha sprovided rea so na ble guidelines w ellunderstood by investigative agents andprosecutors, and these guidelines ensurethat the interceptions conductedpursuant to court orders will result in the
successful prosecutions of those w ho
communications are intercepted.

43 United

States v. Aileman, 986 F. Supp. 1228

(N.D. Cal. 1997).
41 18 U.S.C. §2515; United States v. Ruggiero, 824

F. Supp. 379 (S.D.N.Y. 1993).
42 18 U.S.C. §2518(10)(a).

44 United

States v. Luong, No. CR-94-0094 MHP(N.D. Cal. 7/14/98) (unpublished).
45 Reyna, supra.

525