Electronic Surveillance

Using electronic devices to keep surveillance over a person may implicate the investigated individual’s Fourth Amendment rights. One form of electronic surveillance is attaching a “bug” to a person’s telephone line or to a phone booth and recording the phone conversation. Courts have held that this practice constitutes a search under the Fourth Amendment, which protects an individual’s privacy rights for situations in which the person has a legitimate expectation of privacy.

A person has a legitimate expectation of privacy if the person honestly and genuinely believes the location under search to be private and if a reasonable person under 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 in a private 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 exist:

  • Wire communication is the transfer of sound via a wire, cable or similar device. When law enforcement “taps” a wire, they use a device that gives them access to the transfer, thus disclosing the contents of the conversation.
  • Electronic communication is the transfer of information, data or sound over a device designed for electronic transmissions. This includes e-mail or information uploaded from a private computer to the Internet.

Warrant Requirement

The Fourth Amendment’s Warrant Clause applies to electronic surveillance. 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 notifying the property owner, unless law enforcement can show exigent circumstances (e.g., a situation threatening a person’s life, a conspiracy threatening the national security, a conspiracy suggesting organized crime).

Domestic Surveillance Legislation

In 1986, Congress passed extensive regulations regarding electronic surveillance and wiretapping in the Electronic Communications Privacy Act. 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 act also provides remedy for individuals victimized by unlawful electronic surveillance. The victim may bring suit for compensatory damages, punitive damages and equitable relief, if equitable relief can rectify the harm. The plaintiff may bring suit against only the individual who performed the recording, not 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 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, which lessens the need to obtain a surveillance warrant with regard to foreign intelligence gathering and describes other procedures involving physical and electronic surveillance relating to foreign intelligence. The act’s provisions also apply to American citizens suspected of espionage.

The act permits electronic surveillance in two situations. First, the president may use warrantless wiretapping if it relates to protecting the country against a potential grave attack, sabotage or espionage, providing 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 court that the act created, housed within the Justice Department, 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.

The act’s court system deals exclusively with foreign intelligence warrant applications, orders directing compliance and challenges to compliance orders.

Electronic Surveillance and the USA PATRIOT Act

The USA PATRIOT Act, passed after 9/11, modified portions of numerous electronic communications laws, expanding the authority of federal law enforcement to combat terrorism.

The act discarded the Foreign Intelligence Surveillance Act’s requirement that the president conduct warrantless wiretaps against only non-U.S. citizens, although the USA PATRIOT Act still protects U.S. citizens conducting First Amendment-related activities. Additionally, the act provided more time for conducting surveillance to law enforcement officers who had obtained warrants under the Foreign Intelligence Surveillance Act. The USA PATRIOT act also 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 act. A roving wiretap occurs when a court grants a surveillance warrant without naming the communications carrier and third parties involved in the tap. The FBI and intelligence-gathering communities find roving wiretaps necessary because terrorists have the ability to change computers, e-mail accounts and cell phones quickly after learning the government tapped their device. This provision worried civil liberties activists because they felt it violated the Fourth Amendment’s Particularity Clause.