Electronic Surveillance Under Federal Law: Criminal Defense Considerations in 2021 

Discussion of federal wire-tapping and other electronic surveillance from a criminal defense perspective

The temptation for federal law enforcement to use developing communication technologies in order to investigate potential criminal activity is not new.  In fact, as soon as telegraphs and telephones began to be used by the general public in this country, federal agents were finding ways to take advantage of the new devices in their investigations.

Criminal Defense Fight Going Back Almost 100 Years

Defense lawyers zealously responded to these antics, of course.  The first landmark criminal defense court fight over electronic surveillance by federal agents went through the appellate courts and reached the Supreme Court of the United States in 1928.  There, the High Court considered the federal constitutional implications of convictions obtained by federal prosecutors based upon evidence found through wiretaps on the defendants’ telephones.

In Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928), SCOTUS ruled that wiretapping was not protected by the privacy provisions of the Fourth Amendment.  (Note: many years later, Olmstead was overturned by Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)).

Congress responded to the shocking result in Olmstead by passing the landmark Federal Communications Act of 1934, which included a provision (Section 605) that the High Court would then use to regulate federal law enforcement officers’ ability to tap telephones in criminal investigations.

Things have only become more complicated as technology advances.  As SCOTUS explained in 1967:

Since 1940 eavesdropping has become a big business. Manufacturing concerns offer complete detection systems which automatically record voices under almost any conditions by remote control.

 A microphone concealed in a book, a lamp, or other unsuspected place in a room, or made into a fountain pen, tie clasp, lapel button, or cuff link increases the range of these powerful wireless transmitters to a half mile. Receivers pick up the transmission with interference-free reception on a special wave frequency.

And, of late, a combination mirror transmitter has been developed which permits not only sight but voice transmission up to 300 feet. Likewise, parabolic microphones, which can overhear conversations without being placed within the premises monitored, have been developed. See Westin, Science, Privacy, and Freedom: Issues and Proposals for the 1970’s, 66 Col. L. Rev. 1003, 1005-1010.

Berger v. New York,388 U.S. 41, 47, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967).

Advancing Technology in the 21^st Century

Today, almost a century after Olmstead, the need for zealous and aggressive criminal defense representation in response to federal electronic surveillance tactics is paramount.

Data Harvesting Companies

For instance, currently the Defense Intelligence Agency (DIA) is going to data harvesting companies and buying their user data, which includes things like the information collected by these companies from people’s smartphones.  The DIA is not getting any warrants before snooping through all this personal stuff.  For more, read “Intelligence Analysts Use U.S. Smartphone Location Data Without Warrants, Memo Says,” written by Charles Savage and published by the New York Times on January 25, 2021.

The twist here is that while SCOTUS has ruled that government law enforcement agencies have to get a warrant signed by a judge before they can directly access location data from phone companies, there is no law that prevents them from indirectly accessing it by simply buying this information from data collection businesses.

• For more on the SCOTUS ruling on warrants for phone location data, read our discussion in Do Police Need Search Warrants to Access Digital Information?  The Importance of Carpenter V. United States.

Facial Recognition Technologies

Another huge concern in 2021: the use of facial recognition technology by law enforcement.  As explained by the Electronic Frontier Foundation (EFF) to President Biden earlier this month:

Across the nation, federal, state, and local law enforcement agencies are using face recognition technology (FRT) to identify suspects, often with dire consequences. FRT uses computer algorithms to pick out specific, distinctive details about a person’s face. These details, such as distance between the eyes or shape of the chin, are then converted into a mathematical representation and compared to data on other faces collected in an FRT database ….

As of Fall 2020, more than a dozen cities across the country have banned police use of face recognition. This includes large cities like San Francisco and Boston as well as other cities in California, Maine, Massachusetts, and Mississippi. California has also passed a state-wide moratorium on the use of FRT on police body-worn cameras.  This movement is spreading rapidly, and a number of other cities are slated to consider similar bans in the coming months. The 116th Congress has also introduced several bills to ban or limit the use of FRT.

A number of companies that sell FRT, including Amazon, Microsoft, and IBM, have acknowledged the harms caused by police use of the technology and halted law enforcement acquisition of their products. 

See, “EFF Transition Memo to Incoming Biden Administration,” written by India McKinney and Ernesto Falcon and published by EFF on January 21, 2021.

Overview of Laws Protecting Against Federal Electronic Surveillance

Generally speaking, federal law governing law enforcement use of electronic surveillance is found in (1)  18 U.S.C. § 2510, et seq. (“Title III”) as well as (2) federal case precedent which defines the limitations on the government’s ability to use things like phone wiretaps, secreted video cameras,  and hidden microphones (bugs) to gather information in criminal investigations.  There are also times where the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. § 1801, et seq.) will come into play in lieu of Title III application. See, 18 U.S.C. § 2511(2)(a)(ii), (2)(e), and (2)(f).

The Electronic Communications Privacy Act (ECPA) modified Title III in 1986.  This statute was passed by Congress to keep up with technological advances; it adds the definition of “electronic communications” to Title III application.  Under the ECPA, “electronic communications” include any non-voice communications made over a network that is in or affects interstate commerce, such as text messages (SMS); electronic mail (“email”), facsimiles (“faxes”), other non-voice Internet traffic, and communications over digital-display pagers. 18 U.S.C. § 2510(12).

In Title III legislation, Congress allows law enforcement to use electronic surveillance only when its statutory directives are respected and followed by the agents.  Coupled with the Title III laws are federal precedents, such as Katz, where restrictions on law enforcement electronic surveillance are defined as constitutional protections against unlawful searches and seizures pursuant to the Fourth Amendment.

State Electronic Surveillance Laws

As for state law, Texas and the other states can enact their own electronic surveillance laws.  However, Congress, pursuant to language in Title III, demands that these state statutes must be at least as restrictive on agent activity as Title III, if not more so, in order to be legally valid.

Federal Agency Must Request Department of Justice Approval and Get Court Order in Advance

Title III requires all federal agents to get written approval before implementing certain kinds of electronic surveillance in their investigations.  18 U.S.C. § 2516(1).  These may be applications to conduct wiretaps, or to install and monitor bugs if the suspected criminal activity is one of the crimes listed in 18 U.S.C. § 2516(1).  It’s a big list.

Roving surveillance is allowed when the agents cannot define the particular location or premise where the alleged criminal activity is taking place.

The Department of Justice (DOJ) has the task of reviewing and approving these requests.  If the DOJ gives the green light, then the request is taken before the appropriate judge for a court order that authorizes the electronic surveillance.

The DOJ review process is done by the Attorney General, or various Deputy Assistant Attorneys General for the Criminal Division (“DAAGs”). Roving applications have to be approved by the Assistant Attorney General or the Acting Assistant Attorney General for the Criminal Division.  18 U.S.C. § 2518(11).

Supporting Documentation and Affidavits

Any Title III electronic surveillance investigation must be supported by documents and sworn affidavits to explain the need for it.  These accompany the agent’s request for approval (and court order) allowing the surveillance pursuant to Title III. 18 U.S.C. § 2518(8)(b); In re Grand Jury Proceedings, 841 F.2d 1048, 1053 n.9 (11th Cir. 1988) (“applications” in the statute includes affidavits and related documentation).

All of this is kept under seal.  If a criminal defense lawyer wants to review the affidavits and supporting documentation, he must get a court order by showing good cause for the need to unseal all of it or that unsealing it is in the interest of justice under 18 U.S.C. § 2518(8)(b),(d).

Emergency Exception to the General Rule for DOJ Approval and Court Order

There are times where the federal investigation faces an emergency situation where there is no time to go through the general procedure of obtaining DOJ approval and getting an official court order.

Congress recognizes the emergency scenario in 18 U.S.C. § 2518(7), and gives the Attorney General (as well as a Deputy Attorney General and AUSAs the power to designate a specific law enforcement officer to review these emergency situations.  The designated federal agent has the ability to decide if there is an emergency that is serious enough to require circumventing the standard procedure of getting a court order approving of the electronic surveillance.  He or she must also confirm that there are sufficient grounds for a court order to be issued that would authorize the surveillance if time was not of the essence.  The government then has 48 hours to get the court order approving the emergency decision to allow the surveillance.

When can this happen?  Pursuant to 18 U.S.C. § 2518(7), an emergency situation involves either: (1) immediate danger of death or serious bodily injury to any person; (2) conspiratorial activities threatening the national security interest; or (3) conspiratorial activities characteristic of organized crime. These are circumstances where there someone’s life is at stake, such as a case of kidnapping and extortion.  Nabozny v. Marshall, 781 F.2d 83 (6th Cir.), cert. denied, 476 U.S. 1161 (1986).

If there were not sufficient grounds to merit an “emergency” exception to the general rule requiring a court order in advance, then the federal investigatory electronic surveillance is illegal.  Likewise, if a court order is not granted within 48 hours of the designated agent’s go-ahead, then the surveillance is illegal.

Title III Penalties for Illegal Federal Investigatory Electronic Surveillance

Title III also provides serious penalties for the unlawful use of electronic surveillance data and the improper use of evidence obtained through federal investigatory electronic surveillance.  The law provides for administrative agency sanctions as well as both civil and criminal punishments for those individuals who have misused electronic surveillance.

Punishment can include prison time as well as monetary fines.  Of course, Title III also provides for any evidence obtained from illegal and improper federal investigatory electronic surveillance to be suppressed.

See 18 U.S.C. §2511; 18 U.S.C. §2515; 18 U.S.C. §2518(10); and 18 U.S.C. §2520.

Criminal Defense Challenges to Federal Electronic Surveillance Investigations

A primary defense focus from the outset of representation is determining what facts the prosecution has in his or her file as a result of the federal investigation.  These facts may be in the form of expected witness testimony or collected documents.

Each fact must be individually analyzed to determine if it is (a) admissible under federal evidence law and (b) whether it has been authenticated as legally valid. Once the facts are analyzed by the defense lawyer, how much is left in the file that can be introduced as evidence by the AUSA?

To get a look at these facts, federal criminal defense lawyers make requests directly to the prosecutor (AUSA).  This is part of the “discovery” process.

1.       Defense Pre-Trial Motion for Disclosure of Electronic Surveillance Information

If dissatisfied with the results, the defense lawyer can file a motion before the court requesting the prosecutor to reveal everything about the electronic surveillance in the particular case.

This can include things like who approved things like wiretaps; the basis for the approval; logs of the actual surveillance; and more.  Results of a successful pre-trial motion for disclosure can then lead to request to exclude the prosecutor’s proposed evidence.

2.       Defense Motion for Suppression of Evidence Obtained Pursuant to Electronic Surveillance

Here, the defense files a motion asserting there has been an unlawful electronic surveillance by the federal investigators in violation of Title III and/or case precedent defining the its parameters under the Fourth Amendment.

The goal of the defense request will be to suppress any evidence obtained in the surveillance or as a result of facts learned during the surveillance as “fruit of the poisonous tree.”

The defense will move for a Court Order that suppresses and prohibits the Government from introduction into evidence at trial any and all intercepted communications, wire and/or oral, obtained by the unlawful electronic surveillance.  These communications may involve those in which the Defendant participated or those in which he or she was not a participant, but was referenced either directly or indirectly.

If the electronically intercepted communications from the federal surveillance resulted in any evidence used to obtain the indictment or is designated to be used at trial, then the defense can have all this evidence “suppressed” and it cannot be used by the prosecution.  If enough evidence gets suppressed, then the defense may move for the entire case to be dismissed.

Proactively Protecting Against Electronic Surveillance

As we enter the third decade of the 21^st Century, it is becoming more and more clear that each individual needs to take steps to protect their electronic privacy.  This ranges from chatting or texting on a smartphone to surfing on a tablet to writing on a laptop and storing documents in the cloud.

Online spying is happening all the time.  It may be the federal government or a state or local law enforcement agency. It may be those with criminal intent, or those seeking to learn more about you for marketing purposes.

Privacy protections work the same, no matter who wants to delve into your personal communications.  One good source of information on “Surveillance Self-Defense” is provided by an independent, non-profit organization called the Electronic Frontier Foundation (quoted above regarding issues with facial recognition technology).  With 30 years’ experience, the EFF has compiled an extensive online guide to help anyone interested in privacy protections to take steps to block online spying.

Experienced and Knowledgeable Federal Criminal Defense Representation

Given the rapidly advancing eavesdropping technologies and other forms of electronic surveillance available to federal investigators today, it is vital that anyone suspicious that they may be in federal focus obtain the support and assistance of an experienced and knowledgeable criminal defense attorney who is licensed to practice in the local federal district courts.

Effective and aggressive criminal defense strategies these days must include not only (1) an understanding of the criminal laws but (2) the various factual circumstances that make up criminal charge as well as (3) the technological savvy to know the ins and outs of electronic surveillance methods available to law enforcement. 

For more on search and seizure concerns and the fight to suppress illegally obtained evidence, read:

• What is a Motion to Suppress?
• FBI Investigations and DOJ Prosecutions: Fighting for Your Privacy Rights
• Federal Prosecutor Powers: Is the FBI Recording Your Conversation Down at the Courthouse?
• Child Pornography: Defending Against Overreaching Investigations Using the Internet
• FBI’s New Global Hacking Rule: Amended Federal Rule 41 Danger to Your Privacy.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”