Electronic Surveillance

One year after Katz, Congress enacted the Omnibus Crime Control and Safe Streets Act of 1968 (Pub. L. 90-351, June 19, 1968, 82 Stat. 197; Pub. L. 90-462, § 1, Aug. 8, 1968, 82 Stat. 638; Pub. L. 90-618, Title III, Oct. 22, 1968, 82 Stat. 1236). Title III of the act governs the interception of wire and oral communications in both the public and private sectors. Electronic surveillance is used in the public sector as a tool of criminal investigation by law enforcement, and in the private sector as a means to obtain or protect valuable or discrediting information. Many of the fifty states have enacted legislation similar to Title III.

Public Sector Title III outlines detailed procedures the federal government must follow before conducting electronic surveillance. Pursuant to authorization by the attorney general or a specially designated assistant, federal law enforcement agents must make a sworn written application to a federal judge specifically describing the location where the communications will be intercepted, the reasons for the interception, the duration of the surveillance, and the identity of any persons whose conversations will be monitored. The application must also explain whether less intrusive investigative techniques have been tried. Electronic surveillance may not be used as a first step in criminal investigation when less intrusive means are likely to succeed without creating a significant danger to law enforcement personnel or the public.

A federal judge must then review the surveillance application to ensure that it satisfies each of the statutory requirements and establishes probable cause. The surveillance must be executed as soon as practicable, terminate after fulfillment of its objective, and in no event last longer than thirty days without further judicial approval. Federal agents must also take steps to minimize the interception of communications not relevant to the investigation. Evidence obtained in violation of Title III or of the Fourth Amendment is generally not admissible in court and may give rise to civil and criminal penalties.

Courts have interpreted Title III to cover information intercepted from satellite unscrambling devices, cellular telephones, and pagers. However, Title III does not cover information intercepted from pen registers, which record the telephone numbers of outgoing calls, or caller identification, which displays the telephone numbers of incoming calls, because neither intercepts conversations of any sort. Although Title III does not regulate photographic interception, some federal courts have used it as a guide when reviewing the constitutionality of video surveillance.

The procedural requirements of Title III are not without exception. Where there are exigent circumstances involving conspiratorial activities that threaten national security, Title III permits federal law enforcement agents to conduct electronic surveillance for up to forty-eight hours before seeking judicial approval. At one time, many observers believed that Title III also sanctions warrantless electronic surveillance by the EXECUTIVE BRANCH for national security purposes. In 1972, the Supreme Court ruled to the contrary, holding that presidential surveillance of domestic organizations suspected of national security breaches during the Nixon administration had to comply with the Fourth Amendment's warrant requirement (United States v. United States District Court for Eastern District of Michigan, Southern Division, 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752).

Congress attempted to clarify the murky area of covert presidential surveillance by passing the Foreign Intelligence Surveillance Act of 1978 (FISA), Pub. L. 95-511, Oct. 25, 1978, 92 Stat. 1783. FISA regulates the federal government's surveillance of foreign officials, emissaries, and agents within the United States, but has no application to such surveillance abroad. Similar to Title III, FISA sets forth specific application procedures that a federal judge must review for probable cause before any form of eavesdropping may commence. Unlike Title III, FISA has been interpreted to govern video surveillance as well.

Private Sector Electronic surveillance is most common in two areas of the private sector: employment and domestic relations. In addition to legislation in many of the fifty states, Title III governs these areas as well. It prohibits any person from intentionally using or disclosing information knowingly intercepted by electronic surveillance, without the consent of the interested parties. The intent element may be satisfied if the person knew or had reason to know that the information intercepted or disclosed was acquired by electronic surveillance; it is not satisfied if the person inadvertently intercepted or disclosed such information.

Sixty-eight percent of all reported wiretapping involves DIVORCE cases and custody battles. Spouses, attempting to obtain embarrassing or discrediting information against each other, have planted video recording and listening devices throughout the marital home. Spousal surveillance most commonly involves telephone taps and bedroom bugs but has also included videotaping of activities as innocuous as grocery shopping and movie-going. The fruits of interspousal electronic eavesdropping have been offered in court to reveal extramarital affairs, illegal drug use, and other criminal or deviant activity.

If interspousal surveillance is the most pervasive form of electronic eavesdropping, employer surveillance is the fastest growing. Employers videotape employee movement throughout the workplace, search employee computer files, and monitor employee phone calls. Reasons for such surveillance range from deterring theft and evaluating performance to protecting trade secrets.

The advent of electronic mail (E-MAIL) has provided employers with a new playground for mechanical snooping. By the year 2000, 40 million people were expected to send 60 billion pieces of e-mail correspondence annually. As with telephone calls, employees may send personal messages while they are at work. Although Congress considered the surveillance of workplace e-mail when it broadened Title III protections in 1986, no federal court as of 2003 had confronted the issue. However, courts have permitted employers to eavesdrop surreptitiously on employee phone calls for legitimate and significant business purposes, and courts may also apply this rationale to employer surveillance of e-mail.