Electronic Surveillance

No area of criminal investigation generates as much controversy as the practice of electronic surveillance. Despite the Fourth Amendment's protections, law enforcement authorities have unsurprisingly and consistently preferred and sought unfettered authority to conduct electronic surveillance. To counter such pressure, the U.S. Congress has obliged law enforcement agents to use electronic surveillance only under strict rules, especially for wiretapping.

The practice of wiretapping in law enforcement was not always so carefully controlled. In 1928, a year before President Hoover had a telephone on his desk, the U.S. Supreme Court allowed (in Olmstead v. United States,1928) that warrantless wiretapping did not violate the Fourth Amendment because there was no actual physical intrusion into the home. This case prompted a well-known dissent from Justice Brandeis that eventually became the basis of a reversal of the Olmstead decision in 1967 (Katz v. United States) that firmly placed wiretapping under the domain of the Fourth Amendment. In response to the Court's decision, formal federal regulation of wiretapping began with the passage of Title III of the Omnibus Crime Control and Safe Streets Act in 1968. These rules had the effect of establishing national standards for state and local law enforcement when using electronic surveillance.

The next significant changes in federal law governing electronic surveillance in criminal investigations came in 1986 with the Electronic Communications Privacy Act (ECPA) when Congress made changes in the Title III provisions. ECPA reflected the discomfort over government use of electronic surveillance at the time and required full disclosure of the techniques and results of electronic surveillance in criminal investigations. Thus, both federal and state judges who hear wiretap applications are obliged under ECPA to submit a report on each application to the administrative office of the U.S. Courts.

These reports show that covert wiretaps, those in which neither of the parties to an interception know the line is tapped and to which Title III primarily applied, are rarely used. Over the years, state and local agencies typically reported a combined total of about 800–1,000 wiretap applications each year—a tiny fraction of all criminal cases—compared to a total of about 500–600 per year by federal agencies—a larger but also small fraction of cases. With an average cost in 2003 of about $62,000 per wiretap, the expense of using a wiretap obviously limits how many are attempted. Of the 43 states with laws allowing electronic surveillance, as of 2003, in a given year only a bit more than half report any wiretap applications. The bulk of applications typically are from just four states: California, New York, Pennsylvania, and New Jersey. Some states actually prohibit wiretapping, obliging their agencies to seek cooperation with federal agencies on criminal investigations when they need to do so.

Under ECPA, an application for a wiretap is made to the highest level law enforcement official in the political venue making the application. Designated judges then review the application. In New Jersey, for example, only eight judges in the state are permitted to consider applications for wiretaps. Under ECPA, the duration of a wiretap was strictly limited to 30 days, but applications for extensions were allowed. The USA PATRIOT Act, enacted after the events of September 11, 2001, temporarily allowed for much more leeway in the use of electronic surveillance, to include sidestepping the application[Page 167] procedure in some situations and extending the first period of potential surveillance to 90 days. It remains to be seen whether or not these looser rules will be made permanent. In any case, denials of approval for wiretap applications or their extension, even before the USA PATRIOT Act, were very rare in state courts and unheard of for federal applications. Thus, it is not clear that the USA PATRIOT Act is a harbinger of a sharp increase in wiretapping activity, especially in state and local cases.

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