19 November 1998
Source: Excerpted from US Attorneys' Manual, Title 9 - Criminal http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/wp5/title9.zip (821K)
See full U.S. Attorneys' Manual:
http://www.usdoj.gov/usao/eousa/foia_reading_room/usam
See related US Attorneys' Criminal Resource Manual - Electronic Surveillance
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ELECTRONIC SURVEILLANCE
Contents
1067 Cable
9-7.010 Introduction
This chapter contains Department of Justice policy on the use of electronic surveillance. The Federal electronic surveillance statutes (commonly referred to collectively as "Title III") are codified at 18 U.S.C. 2510, et seq. Because of the well-recognized intrusive nature of many types of electronic surveillance, especially wiretaps and "bugs," and the Fourth Amendment implications of the government's use of these devices in the course of its investigations, the relevant statutes (and related Department of Justice guidelines) provide restrictions on the use of most electronic surveillance, including the requirement that a high-level Department official specifically approve the use of many of these types of electronic surveillance prior to an Assistant United States Attorney obtaining a court order authorizing interception.
Chapter 7 contains the specific mechanisms, including applicable approval requirements, for the use of wiretaps, "bugs" (oral interception devices), roving taps, video surveillance, and the consensual monitoring of wire or oral communications, as well as emergency interception procedures and restrictions on the disclosure and evidentiary use of information obtained through electronic surveillance. Additional information concerning use of the various types of electronic surveillance is also set forth in the Criminal Resource Manual at 27.
Attorneys in the Electronic Surveillance Unit of the Office of Enforcement Operations, Criminal Division, are available to provide assistance concerning both the interpretation of Title III and the review process necessitated thereunder. Interceptions conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, which is codified at 50 U.S.C. 1801, et seq., are specifically excluded from the coverage of Title III. See 18 U.S.C. 2511(2)(a)(ii), (2)(e), and (2)(f).
9-7.100 Authorization of Applications for Wire, Oral, and Electronic Interception Orders -- Overview and History of Legislation
To understand the core concepts of the legislative scheme of Title III, one must appreciate the history of this legislation and the goals of Congress in enacting this comprehensive law. By enacting Title III in 1968, Congress prohibited private citizens from using certain electronic surveillance techniques. Congress exempted law enforcement from this prohibition, but required compliance with explicit directives that controlled the circumstances under which law enforcement's use of electronic surveillance would be permitted. Many of the restrictions upon the use of electronic surveillance by law enforcement agents were enacted in recognition of the strictures against unlawful searches and seizures contained in the Fourth Amendment to the United States Constitution. See, e.g., Katz v. United States, 389 U.S. 347 (1967). Still, several of Title III's provisions are more restrictive than what is required by the Fourth Amendment. At the same time, Congress preempted State law in this area, and mandated that States that sought to enact electronic surveillance laws would have to make their laws at least as restrictive as the Federal law.
One of Title III's most restrictive provisions is the requirement that Federal investigative agencies submit requests for the use of certain types of electronic surveillance (primarily the non-consensual interception of wire and oral communications) to the Department of Justice for review and approval before applications for such interception may be submitted to a court of competent jurisdiction for an order authorizing the interception. Specifically, in 18 U.S.C. 2516(1), Title III explicitly assigns such review and approval powers to the Attorney General, but allows the Attorney General to delegate this review and approval authority to a limited number of high-level Justice Department officials, including Deputy Assistant Attorneys General for the Criminal Division ("DAAGs"). The DAAGs review and approve or deny proposed applications to conduct "wiretaps" (to intercept wire [telephone] communications, 18 U.S.C. 2510(1)) and to install and monitor "bugs" (the use of microphones to intercept oral [face-to-face] communications, 18 U.S.C. 2510(2)). It should be noted that only those crimes enumerated in 18 U.S.C.
2516(1) may be investigated through the interception of wire or oral communications. On those rare occasions when the government seeks to intercept oral or wire communications within premises or over a facility that cannot be identified with any particularity, and a "roving" interception of wire or oral communications is therefore being requested, the Assistant Attorney General or the Acting Assistant Attorney General for the Criminal Division must be the one to review and approve or deny the application. (See the roving interception provision at 18 U.S.C. 2518(11), discussed at USAM 9-7.111.)
In 1986, Congress amended Title III by enacting the Electronic Communications Privacy Act of 1986.
Specifically, Congress added a new category of covered communications, i.e., "electronic communications," which would now be protected, and whose interception would be regulated, by Title III. Electronic communications are those types of non-oral or wire communications that occur, inter alia, over computers, digital-display pagers, and facsimile ("fax") machines. See 18 U.S.C. 2510(12).
Although the 1986 amendments permit any government attorney to authorize the making of an application to a Federal court to intercept electronic communications to investigate any Federal felony (18 U.S.C.
2516(3)), the Department of Justice and Congress agreed informally at the time of ECPA's enactment that, for a three-year period, Department approval would nonetheless be required before applications could be submitted to a court to conduct interceptions of electronic communications. After that period, the Department rescinded the prior approval requirement for the interception of electronic communications over digital-display paging devices, but continued the need for Department approval prior to application to the court for the interception of electronic communications over any other device, such as computers and fax machines. Applications to the court for authorization to intercept electronic communications over digital-display pagers--which are the most commonly targeted type of electronic communications--may be made based solely upon the authorization of a United States Attorney. See 18 U.S.C. 2516(3).
Because there are severe penalties for the improper and/or unlawful use and disclosure of electronic surveillance evidence, including criminal, civil, and administrative sanctions, as well as the suppression of evidence, it is essential that Federal prosecutors and law enforcement agents clearly understand when Departmental review and approval are required, and what such a process entails. See 18 U.S.C. 2511, 2515, 2518(10), and 2520.
See the Criminal Resource Manual at 31, for citations to relevant legislation.
9-7.110 Format for the Authorization Request
When Justice Department review and approval of a proposed application for electronic surveillance is required, the Electronic Surveillance Unit of the Criminal Division's Office of Enforcement Operations will conduct the initial review of the necessary pleadings, which include:
A. The affidavit of an "investigative or law enforcement officer" of the United States who is empowered by law to conduct investigations of, or to make arrests for, offenses enumerated in 18 U.S.C. 2516(1) or (3) (which, for any application involving the interception of electronic communications, includes any Federal felony offense), with such affidavit setting forth the facts of the investigation that establish the basis for those probable cause (and other) statements required by Title III to be included in the application;
B. The application by any United States Attorney or his/her Assistant, or any other attorney authorized by law to prosecute or participate in the prosecution of offenses enumerated in 18 U.S.C. 2516(1) or (3) that provides the basis for the court's jurisdiction to sign an order authorizing the requested interception of wire, oral, and/or electronic communications; and
C. A set of orders to be signed by the court authorizing the government to intercept, or approving the interception of, the wire, oral, and/or electronic communications that are the subject of the application, including appropriate redacted orders to be served on any relevant providers of "electronic communication service" (as defined in 18 U.S.C. 2510(15)).
9-7.111 Roving Interception
Pursuant to 18 U.S.C. 2518(11)(a) and (b), the government may obtain authorization to intercept wire, oral, and electronic communications of specifically named subjects without specifying with particularity the premises within, or the facilities over which, the communications will be intercepted. (Such authorization is commonly referred to as "roving" authorization.) As to the interception of oral communications, the government may seek authorization without specifying the location(s) of the interception when it can be shown that it is not practical to do so. See United States v. Bianco, 998 F.2d 1112 (2d Cir. 1993), cert. denied, 114 S. Ct. 1644 (1994); United States v. Orena, 883 F. Supp. 849 (E.D.N.Y. 1995). An application for the interception of wire and electronic communications of specifically named subjects may be made without specifying the facility or facilities over which the communications will be intercepted when it can be shown that the subject or subjects of the interception have demonstrated a purpose to thwart interception by changing facilities.
See United States v. Gaytan, 74 F.3d 545 (5th Cir. 1996); United States v. Petti, 973 F.2d 1441 (9th Cir. 1992), cert. denied, 113 S.Ct. 1859 (1993); United States v. Villegas, 1993 WL 535013 (S.D.N.Y. December 22, 1993).
When the government seeks authorization for roving interception, the Department's authorization must be made by the Attorney General, the Deputy Attorney General, the Associate Attorney General, an Assistant Attorney General, or an Acting Assistant Attorney General. See 18 U.S.C. 2518(11)(a)(i) and (b)(i).
9-7.112 Emergency Interception
Title III contains a provision which allows for the warrantless, emergency interception of wire, oral, and/or electronic communications. Specifically, under 18 U.S.C. 2518(7), the Attorney General (AG), the Deputy Attorney General (DAG), or the Associate Attorney General (AssocAG) may specially designate a law enforcement or investigative officer to determine whether an emergency situation exists that requires the interception of wire, oral, and/or electronic communications before a court order authorizing such interception can, with due diligence, be obtained. As defined by 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. The only situations which will likely constitute an emergency are those involving an imminent threat to life, i.e., a kidnapping or hostage taking.
See United States v. Crouch, 666 F. Supp. 1414 (N.D. Cal. 1987)(wiretap evidence suppressed because there was no imminent threat of death or serious injury); Nabozny v. Marshall, 781 F.2d 83 (6th Cir.)(kidnapping and extortion scenario constituted an emergency situation), cert. denied, 476 U.S. 1161 (1986). The emergency provision also requires that grounds must exist under which an order could be entered (viz., probable cause, necessity, specificity of target location/facility) to authorize the interception.
Once the AG, the DAG, or the AssocAG authorizes the law enforcement agency to proceed with the emergency Title III, the government then has forty-eight (48) hours, from the time the authorization was granted, to obtain a court order approving the emergency interception. 18 U.S.C. 2518(7). The affidavit supporting the application for the order must contain only those facts known to the AG, the DAG, or the AssocAG at the time his or her approval was given, and must be accompanied by a written verification from the requesting agency noting the date and time of the authorization. Failure to obtain the court order within the forty-eight-hour period will render any interceptions obtained during the emergency illegal.
Prior to the agency's contact with the AG, the DAG, or the AssocAG, oral approval to make the request must first be obtained from the Assistant Attorney General (AAG) or a Deputy Assistant Attorney General (DAAG) of the Criminal Division. This approval is facilitated by the Office of Enforcement Operation's Electronic Surveillance Unit, which is the initial contact for the requesting United States Attorney's Office and the requesting agency. Once the Electronic Surveillance Unit attorney briefs and obtains oral approval from the AAG or the DAAG, the attorney notifies the agency representative and the Assistant United States Attorney that the Criminal Division recommends that the emergency authorization proceed. The agency then contacts the AG, the DAG, or the AssocAG and seeks permission to proceed with the emergency Title III.
9-7.200 Video Surveillance -- Closed Circuit Television -- Department of Justice Approval Required When There Is A Reasonable Expectation of Privacy
Pursuant to Department of Justice Order No. 985-82, dated August 6, 1982, certain officials of the Criminal Division have been delegated authority to review requests to use video surveillance for law enforcement purposes when there is a constitutionally protected expectation of privacy requiring judicial authorization. This authority was delegated to the Assistant Attorney General, any Deputy Assistant Attorney General, and the Director and Associate Directors of the Office of Enforcement Operations.
When court authorization for video surveillance is deemed necessary, it should be obtained by way of an application and order predicated on Fed. R. Crim. P. 41(b) and the All Writs Act (28 U.S.C. 1651). The application and order should be based on an affidavit that establishes probable cause to believe that evidence of a Federal crime will be obtained by the surveillance. In addition, the affidavit should comply with certain provisions of the Federal electronic surveillance statutes. See the Criminal Resource Manual at 32 for additional discussion of video surveillance warrants.
Department policy requires that the video surveillance application and order be filed separately from, and not incorporated in, an application and order for electronic surveillance pursuant to 18 U.S.C. 2518.
When appropriate, the same affidavit may be submitted in support of both applications/orders.
9-7.250 Use and Unsealing of Title III Affidavits
When the government terminates a Title III electronic surveillance investigation, it must maintain under seal all of the Title III applications and orders (including affidavits and accompanying material) that were filed in support of the electronic surveillance. See 18 U.S.C. 2518(8)(b);
In re Grand Jury Proceedings, 841 F.2d 1048, 1053 n.9 (11th Cir. 1988) (although 18 U.S.C. 2518(8)(b) refers only to "applications" and "orders," "applications" is construed to include affidavits and any other related documentation).
The purpose of this sealing requirement is to ensure the integrity of the Title III materials and to protect the privacy rights of those individuals implicated in the Title III investigation. See S.Rep. No. 1097, reprinted in 1968 U.S. Code Cong. & Admin. News 2112, 2193-2194. The applications may be unsealed only pursuant to a court order and only upon a showing of good cause under 18 U.S.C. 2518(8)(b) or in the interest of justice under 18 U.S.C. 2518(8)(d).
Thus, the government attorney should not attach Title III affidavits or other application material as exhibits to any search warrant affidavit, complaint, indictment, or trial brief. The government attorney may, nevertheless, use information from these materials or the Title III interceptions in documents such as search warrant affidavits, complaints, indictments, and trial briefs.
See 18 U.S.C. 2517(8)(a); 18 U.S.C. 2517(1) and (2); and S.Rep. No. 1097 at 2188. In using this information, however, the government attorney must use care not to disclose publicly information from the Title III affidavits or interceptions that would either abridge the privacy interests of persons not charged with any crime or jeopardize ongoing investigations.
When Title III materials are sought by defense counsel or other persons and the privacy interests of uncharged persons are implicated by the contents of those materials, the government attorney should seek a protective order pursuant to Rule 16(d)(1), Fed. R. Crim. P., that will forbid public disclosure of the contents of the materials. Likewise, a Rule 16 protective order should be sought to deny or defer discovery of those portions of the affidavits and applications that reveal ongoing investigations when disclosure would jeopardize the success of any such investigation.
For discussion about disclosure of intercepted communications in civil litigation see the Criminal Resource Manual at 33-34.
9-7.301 Consensual Monitoring -- General Use
Section 2511(2)(c) of Title 18 provides that "It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception...." See United States v. White, 401 U.S. 745 (1971). As such, consensual interceptions need not be made under Title III procedures, interception orders under 2518 are not available, and should not be sought in cases falling within 2511(2)(c).
The Fourth Amendment to the U.S. Constitution, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986 (18 U.S.C. 2510, et seq.), and the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801, et seq.) permit government agents, acting with the consent of a party to a communication, to engage in warrantless interceptions of telephone communications, as well as oral and electronic communications. White, supra; United States v.
Caceres, 440 U.S. 741 (1979). Similarly, Title III, by its definition of oral communications, permits Federal agents to engage in warrantless interceptions of oral communications when the communicating parties have no justifiable expectation of privacy. 18 U.S.C. 2510(2). (No similar exception is contained in the definition of wire communications and, therefore, the nonconsensual interception of wire communications violates 18 U.S.C. 2511 regardless of the communicating parties' expectation of privacy, unless the interceptor complies with the court authorization procedures of Title III or with the provisions of the Foreign Intelligence Surveillance Act of 1978.) Since such interception techniques are particularly effective and reliable, the Department of Justice encourages their use by Federal agents for the purpose of gathering evidence of violations of Federal law, protecting the safety of informants and undercover law enforcement agents, or fulfilling other compelling needs. While these techniques are lawful and helpful, their use is frequently sensitive, so they must remain the subject of careful self-regulation by the agencies employing them.
The Department developed guidelines for the investigative use of consensual monitoring, which were promulgated most recently by the Attorney General on January 20, 1998. The guidelines do not apply to consensual monitoring of telephone conversations or radio transmissions. It was left to the enforcement agencies to develop adequate internal guidelines for the use of those aspects of this investigative tool. The following guidelines cover the investigative use of devices which intercept and record certain consensual verbal conversations where a body transmitter or recorder or a fixed location transmitter or recorder is used during a face-to-face conversation. In certain specified sensitive situations, under the regulations, the agencies must obtain advance written authorization from the Department of Justice. The guidelines on consensual monitoring set forth in the Attorney General's Memorandum of January 20, 1998, on that subject are contained in USAM 9-7.302.
9-7.302 Consensual Monitoring -- "Procedures for Lawful, Warrantless Interceptions of Verbal Communications"
The following text was taken from a memorandum on "Procedures for Lawful, Warrantless Monitoring of Verbal Communications" issued by the Attorney General on January 20, 1998:
I. DEFINITIONS
As used in this Memorandum, the term "agency" means all of the Executive Branch departments and agencies, and specifically includes United States Attorneys' Offices which utilize their own investigators, and the Offices of the Inspectors General. As used in this Memorandum, the terms "interception" and "monitoring" mean the aural acquisition of oral communications by use of an electronic, mechanical, or other device. Cf. 18 U.S.C. 2510(4).
As used in this Memorandum, the term "public official" means an official of any public entity of government, including special districts, as well as all federal, state, county, and municipal governmental units.
II. NEED FOR WRITTEN AUTHORIZATION
A. Investigations Where Written Department of Justice Approval is Required. A request for authorization to monitor an oral communication without the consent of all parties to the communication must be approved in writing by the Director or Associate Directors of the Office of Enforcement Operations, Criminal Division, U.S. Department of Justice, when it is known that:
(1) the monitoring relates to an investigation of a member of Congress, a federal judge, a member of the Executive Branch at Executive Level IV or above, or a person who has served in such capacity within the previous two years;(2) the monitoring relates to an investigation of the Governor, Lieutenant Governor, or Attorney General of any State or Territory, or a judge or justice of the highest court of any State or Territory, and the offense investigated is one involving bribery, conflict of interest, or extortion relating to the performance of his or her official duties;
(3) any party to the communication is a member of the diplomatic corps of a foreign country;
(4) any party to the communication is or has been a member of the Witness Security Program and that fact is known to the agency involved or its officers;
(5) the consenting or nonconsenting person is in the custody of the Bureau of Prisons or the United States Marshals Service; or
(6) the Attorney General, Deputy Attorney General, Associate Attorney General, any Assistant Attorney General, or the United States Attorney in the district where an investigation is being conducted has requested the investigating agency to obtain prior written consent before conducting consensual monitoring in a specific investigation.
In all other cases, approval of consensual monitoring will be in accordance with the procedures set forth in part V. below.
B. Monitoring Not Within Scope of Memorandum. Even if the interception falls within one of the six categories above, the procedures and rules in this Memorandum do not apply to:
(1) extraterritorial interceptions; NOTE: Consensual monitoring conducted outside of the United States is not controlled by this memorandum. However, any extraterritorial investigative activity, including but not limited to consensual monitoring, requires the prior approval of the Criminal Division. Before conducting any such activity outside of the United States, agents should consult with their counsel's office and must consult with the Criminal Division's Office of International Affairs(2) foreign intelligence interceptions, including interceptions pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801, et seq.);
(3) interceptions pursuant to the court-authorization procedures of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended (18 U.S.C. 2510, et seq.);
(4) routine Bureau of Prisons monitoring of oral communications that are not attended by a justifiable expectation of privacy;
(5) interceptions of radio communications; and
(6) interceptions of telephone communications.
III. AUTHORIZATION PROCEDURES AND RULES
A. Required Information. The following information must be set forth in any request to monitor an oral communication pursuant to part II.A.:
(1) Reasons for the Monitoring. The request must contain a reasonably detailed statement of the background and need for the monitoring.(2) Offense. If the monitoring is for investigative purposes, the request must include a citation to the principal criminal statute involved.
(3) Danger. If the monitoring is intended to provide protection to the consenting party, the request must explain the nature of the danger to the consenting party.
(4) Location of Devices. The request must state where the monitoring device will be hidden: on the person, in personal effects, or in a fixed location.
(5) Location of Monitoring. The request must specify the location and primary judicial district where the monitoring will take place. A monitoring authorization is not restricted to the original district. However, if the location of monitoring changes, notice should be promptly given to the approving official. The record maintained on the request should reflect the location change.
(6) Time. The request must state the length of time needed for the monitoring. Initially, an authorization may be granted for up to 90 days from the day the monitoring is scheduled to begin. If there is the need for continued monitoring, extensions for additional periods of up to 90 days may be granted. In special cases (e.g., "fencing" operations run by law enforcement agents or long-term investigations that are closely supervised by the Department's Criminal Division), authorization for up to 180 days may be granted with similar extensions.
(7) Names. The request must give the names of persons, if known, whose communications the department or agency expects to monitor and the relation of such persons to the matter under investigation or to the need for the monitoring.
(8) Trial Attorney Approval. The request must state that the facts of the surveillance have been discussed with the United States Attorney, an Assistant United States Attorney, or the previously designated Department of Justice attorney responsible for a particular investi-gation, and that such attorney concurs that the use of consensual monitoring is appropriate under this memorandum (including the date of such concurrence). The attorney must also concur that the use of consensual monitoring under the facts of the investigation does not raise the issue of entrapment. Such statements may be made orally.
(9) Renewals. A request for renewal authority to monitor oral communications must contain all the information required for an initial request. The renewal request must also refer to all previous authorizations and explain why an additional authorization is needed, as well as provide an updated statement as to the concurrence of the responsible trial attorney.
B. Oral Requests. Unless a request is of an emergency nature, it must be in written form and contain all of the information set forth above. Emergency requests in cases in which written Department of Justice approval is required may be made by telephone to the Director or an Associate Director of the Criminal Division's Office of Enforcement Operations, or to the Assistant Attorney General, the Acting Assistant Attorney General, or a Deputy Assistant Attorney General for the Criminal Division, and should later be reduced to writing and submitted to the appropriate headquarters official as soon as practicable after authorization has been obtained. An appropriate headquarters filing system is to be maintained for consensual monitoring requests that have been received and approved in this manner. Oral requests must include all the information required for written requests as set forth above.
C. Authorization. Authority to engage in consensual monitoring in situations set forth in part II.A. of this Memorandum may be given by the Attorney General, the Deputy Attorney General, the Associate Attorney General, the Assistant Attorney General or Acting Assistant Attorney General in charge of the Criminal Division, a Deputy Assistant Attorney General in the Criminal Division, or the Director or an Associate Director of the Criminal Division's Office of Enforcement Operations. Requests for authorization will normally be submitted by the headquarters of the department or agency requesting the consensual monitoring to the Office of Enforcement Operations for review.
D. Emergency Monitoring. If an emergency situation requires consensual monitoring at a time when one of the individuals identified in part III.B. above cannot be reached, the authorization may be given by the head of the responsible department or agency, or his or her designee. Such department or agency must then notify the Office of Enforcement Operations as soon as practicable after the emergency monitoring is authorized, but not later than three working days after the emergency authorization. The notification shall explain the emergency and shall contain all other items required for a nonemergency request for authorization set forth in part III.A. above.
IV. SPECIAL LIMITATIONS
When a communicating party consents to the monitoring of his or her oral communications, the monitoring device may be concealed on his or her person, in personal effects, or in a fixed location. Each department and agency engaging in such consensual monitoring must ensure that the consenting party will be present at all times when the device is operating.
In addition, each department and agency must ensure: (1) that no agent or person cooperating with the department or agency trespasses while installing a device in a fixed location, unless that agent or person is acting pursuant to a court order that authorizes the entry and/or trespass, and (2) that as long as the device is installed in the fixed location, the premises remain under the control of the government or of the consenting party. See United States v. Yonn, 702 F.2d 1347 (11th Cir.), cert denied, 464 U.S. 917 (1983) (rejecting the First Circuit's holding in United Statesv. Padilla 520 F.2d 526 (1st Cir. 1975), and approving use of fixed monitoring devices that are activated only when the consenting party is present). But see United States v. Shabazz, 883 F.Supp. 422 (D.Minn. 1995).
Outside the scope of this Memorandum are interceptions of oral, nonwire communications when no party to the communication has consented. To be lawful, such interceptions may take place only when no party to the communication has a justifiable expectation of privacy -- for example, burglars, while committing a burglary, have no justifiable expectation of privacy. Cf. United States v. Pui Kan Lam, 483 F.2d 1202 (2d. Cir. 1973), cert. denied, 415 U.S. 984 (1974). Each department or agency must ensure that no communication of any party who has a justifiable expectation of privacy is intercepted.
V. NEED FOR ORAL AUTHORIZATION OF CONSENSUAL MONITORING WHERE NO WRITTEN APPROVAL IS REQUIRED
Prior to receiving approval for consensual monitoring from the head of the department or agency or his or her designee, a representative of the department or agency must contact the United States Attorney, an Assistant United States Attorney, or the Department of Justice attorney responsible for a particular investigation. Authorization may be obtained orally from this attorney. The attorney, in giving authorization, must concur as to both the legality and the propriety of the consensual monitoring in question.
Even in cases in which no written authorization is required because they do not involve the sensitive circumstances discussed above, each agency must continue to maintain internal procedures for supervising, monitoring, and approving all consensual monitoring of oral communications. Approval for consensual monitoring must come from the head of the agency or his or her designee. Any designee should be a high-ranking supervisory official at headquarters level.
Similarly, each department or agency shall establish procedures for emergency authorizations in cases involving non-sensitive circumstances similar to those that apply with regard to cases that involve the sensitive circumstances described in part III.D. above, including the follow-up oral authorization of the responsible trial attorney.
Records are to be maintained by the involved departments or agencies for each consensual monitoring that they have conducted. These records are to include the information set forth in part III.A. above.
VI. REPORTS
For a period covering the first twelve months following the promulgation of this Memorandum, the head of each department or agency, or his or her designee, shall make a one-time report to the Director of the Office of Enforcement Operations in the Criminal Division summarizing the results of consensual monitoring authorized pursuant to this Memorandum. This report shall contain the following information broken down by offense or reason for consensual monitoring: the number of requests for authorization; the number of emergency authorizations; the number of times that the monitoring provided information that corroborated or assisted in corroborating the allegation or suspicion; and the number of authorizations not used. Summaries of particularly illustrative uses of consensual monitoring, with identifying information deleted if necessary to avoid compromising ongoing investigations or sensitive investigative matters, should be included. This report shall be submitted in February of 1999.
Following this one-year period, the reporting requirement shall be rescinded. The rescinding of the reporting requirement does not, in any way, diminish the obligation of the departments and agencies to maintain records in a particular investigation consistent with the department's or agency's investigative responsibilities regarding pending or anticipated judicial proceedings.
Such record keeping should continue to be sufficient to support the oversight responsibilities of the Executive and Legislative Branches.
Also in February of 1999, each department and agency shall submit to the Attorney General an inventory of all devices that are intended for the surreptitious interception of wire or nonwire communications, including devices used to intercept communications pursuant to the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended. This reporting requirement will likewise be rescinded with the submission of the February 1999 report.
VII. GENERAL LIMITATIONS
This Memorandum relates solely to the subject of consensual monitoring of oral communications except where otherwise indicated. This Memorandum does not alter or supersede any current policies or directives relating to the subject of obtaining necessary approval for engaging in nonconsensual electronic surveillance or any other form of nonconsensual interception.
9-7.400 Defendant Motion or Discovery Request for Disclosure of Defendant Overhearings and Attorney Overhearings
US Attorneys' Criminal Resource Manual
1040 to 1080
Contents
1040 Introduction to Criminal Sanctions for Illegal Electronic Surveillance
Congress has enacted comprehensive legislation governing electronic surveillance. In 1968, Congress passed Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510 et seq. In 1978, the Foreign Intelligence Surveillance Act of 1978 ("FISA"), 50 U.S.C.
1801 et seq., was enacted. In 1986, Congress passed the Electronic Communications Privacy Act of 1986 ("1986 Act"), Public Law No. 99-508, which substantially revised Title III to provide coverage for the technological advances developed in the area of electronic communications since the passage of the original act. And most recently in 1994, Congress enacted the Communications Assistance for Law Enforcement Act ("1994 Act"), Public Law No. 103-414, which extended the protections of the 1986 Act to cordless phones and certain data communications transmitted by radio and also expanded criminal penalties for using certain devices to steal mobile phone service. Relatively minor amendments were also made by the Violent Crime Control and Law Enforcement Act of 1994, Public Law No. 103-322 and the Antiterrorism and Effective Death Penalty Act of 1996, Public Law No. 104-132.
These sections explain the criminal provisions contained in Title III, as amended by the 1986 Act and the 1994 Act, other criminal provisions added by the 1986 Act, and the criminal prohibitions in the Federal Communications Act. The criminal sanction in FISA is dealt with in USAM 9-60.400.|6012
The statutes prohibiting illegal electronic surveillance discussed in these sections are:
18 U.S.C. 2510, which defines the terms used throughout Title III;
18 U.S.C. 2511, which prohibits the interception of wire, oral, and electronic communications and the subsequent disclosure or use of illegally intercepted communications;
18 U.S.C. 2512, which prohibits the manufacture, possession, advertisement, sale, and transportation in interstate or foreign commerce of devices that are primarily useful for the surreptitious interception of communications;
18 U.S.C. 2513, which provides for the forfeiture of any device which is used, manufactured, or possessed in violation of sections 2511 or 2512;
18 U.S.C. 2701, which prohibits unauthorized access to a wire or electronic communication while it is in electronic storage;
18 U.S.C. 3121, which prohibits the installation of a pen register or trap and trace device without court authorization;
18 U.S.C. 2232(c), which prohibits giving notice of a court-approved electronic surveillance application in order to obstruct, impede, or prevent the interception;
18 U.S.C. 2521, which authorizes the Attorney General to initiate civil proceedings to enjoin felony violations of Title III;
18 U.S.C. 1367, which prohibits interference with the operation of a satellite;
47 U.S.C. 605, which prohibits interception and divulgence or use of radio communications;
47 U.S.C. 553, which prohibits receiving cable communications services without permission of the operator; and
47 U.S.C. 502, which punishes willful and knowing violations of Federal Communication Commission regulations.
1041 Investigative Jurisdiction and Supervisory Responsibility
Investigative jurisdiction over violations of 18 U.S.C. 2511, 2512, 2701, 3121, and 2232(c) rests with the Federal Bureau of Investigation.
1042 Legislative History
A cogent statement of congressional intent in enacting Title III in 1968 appears in S.Rep. No. 1097, 90th Cong., 2d Sess. 88-108, reprinted in 1968 U.S.Code Cong. & Ad.News 2177. The most comprehensive treatment of legislative intent with respect to the 1986 Act is in S.Rep. No. 541, 99th Cong., 2d Sess.
(1986), reprinted in 1986 U.S.Code Cong. & Ad.News 3555. The congressional intent in adopting the 1994 Act is set out in H.Rep. No. 103-827, 103d Cong., 2d Sess. (1994), reprinted in 1994 U.S.Code Cong. & Ad.News 3489. Minimal discussion of congressional intent relative to the minor 1994 and 1996 amendments may be found, respectively, in H.Conf.Rep. No. 103-711, 103d Cong., 2d Sess. 407, 410 (1994), reprinted in 1994 U.S. Code Cong. & Ad.News 1875, 1878 and H.Conf.Rep. No. 104-518, 104th Cong., 2d Sess. 123-24 (1996), reprinted in 1996 U.S. Code Cong. & Ad. News 944, 956-57.
1043 Definition -- "Wire Communication"
The definition of a wire communication is set forth in 18 U.S.C. 2510(1). It is limited to "aural" transfers made by aid of "wire, cable or other like connection." Because the 1994 Act specifically eliminated the exclusion from this definition the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, such communications are now protected by the statute. See H.Rep. No. 103-827, 103d Cong., 2d Sess. (1994), reprinted in 1994 U.S.Code Cong. & Ad.News 3489, 3510. See McKamey v. Roach, 55 F.3d 1236, 1238 n.1 (6th Cir. 1995) (noting change in law).
1044 Definitions -- "Oral Communication"
The term "oral communication" is defined in 18 U.S.C. 2510(2) to mean any oral communication uttered by a person having a justifiable expectation of privacy. The legislative history indicates that an expectation of privacy would normally be justifiable in one's own home (citing Silverman v. United States, 365 U.S. 505 (1961)) or office (citing Berger v. New York, 388 U.S. 41 (1967)) but would not be justifiable in a jail cell (citing Lanza v. New York, 370 U.S. 139 (1962)) or an open field (citing Hester v. United States, 265 U.S. 57 (1924)). See S.Rep. No. 1097, 90th Cong., 2d Sess. 90 (1968). A trespasser would not have a justifiable expectation of privacy. Cf. United States v. Pui Kan Lam, 483 F.2d 1202 (2d Cir. 1973), cert. denied, 415 U.S. 984 (1974). An "oral communication" is specifically excluded from the definition of an "electronic communication." 18 U.S.C. 2510(12)(A). The effect of the exclusion is to make it clear that an oral communication under the statute can never be a radio communication. See United States v. Rose, 669 F.2d 23, 25-26 (1st Cir.), cert. denied, 459 U.S. 828 (1982).
1045 Definition -- "Electronic Communication"
The definition of an "electronic communication" appears in 18 U.S.C. 2510(12). This form of communication was added to Title III by the 1986 Act to cover most forms of electronic communications existing today. It includes any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system. Moreover, because the 1994 Act specifically eliminated the exclusion from this definition the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, such communications are now protected by the statute. See H.Rep. No. 103-827, 103d Cong., 2d Sess. (1994), reprinted in 1994 U.S.Code Cong. & Ad.News 3489, 3510.
See McKamey v. Roach, 55 F.3d 1236, 1238 n.1 (6th Cir. 1995) (noting change in law). Nonetheless, this definition does not include "electronic storage" of communications, as defined in 18 U.S.C. 2510(17), because unlawful access to stored communications is governed by 18 U.S.C. 2701 et seq.
The definition of an "electronic communication" specifically excludes: a "wire" or "oral" communication, as defined in Title III; communications from tone-only paging devices; communications from tracking devices; and electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds. This last exception was added as part of the Antiterrorism and Effective Death Penalty Act of 1996 in order to enable "law enforcement to obtain such bank records through the usual grand jury subpoena, or other court order procedure, without requiring a wiretap order for these purposes." H. Conf. Rep. No. 104-518, 104th Cong., 2d Sess. (1996), reprinted in 1996 U.S.Code Cong. & Ad.News 924, 956-57.
1046 Definition -- "Intercept"
The term "intercept" is defined in 18 U.S.C. 2510(4) to mean the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device. The Criminal Division takes the position, espoused by a number of courts, that would limit "intercept" to "the participation by the one charged with an 'interception' in the contemporaneous acquisition of the communication through the use of [a] device." United States v. Turk, 526 F.2d 654, 658 (5th Cir.) (replay of audio cassette), cert. denied, 429 U.S. 823 (1976). Accord Reynolds v. Spears, 93 F.3d 428, 432 (8th Cir. 1996). See Payne v. Norwest, 911 F. Supp. 1299, 1303 (D. Mont. 1995) (voice mail).
The 1986 Act broadened the definition of "intercept" to include non-aural acquisitions to accommodate the inclusion of electronic communications as protected communications under Title III. The Senate Report specifically noted that the "definition of 'intercept' under current law is retained with respect to wire and oral communications except that the term 'or other' is inserted after 'aural.'" S. Rep. No. 99-541, 99th Cong., 2d Sess.. 13 (1986), reprinted in 1986 U.S.Code Cong. & Ad.News 3555, 3567.
1047 Definition -- "Electronic, Mechanical, or Other Device"
The term "electronic, mechanical, or other device" is defined in 18 U.S.C. 2510(5) to mean any device or apparatus which can be used to intercept communications. It is also meant to include any combination of parts designed or intended for use in converting those parts into such a device or apparatus and from which such a device or apparatus may be readily assembled. See S.Rep. No. 541, 99th Cong., 2d Sess. 13 (1986). Two exceptions to the meaning of "electronic, mechanical, or other device" are built into the statute.
The first exception is for telephone instruments furnished to a subscriber or user by a provider of a wire or electronic communication service and which are being used by the subscriber or user in the ordinary course of its business. The courts of appeals do not agree on the scope of the exception as it pertains to telephone extensions. The Criminal Division believes that the better view is found in United States v. Harpel, 493 F.2d 346, 351 (10th Cir. 1974), wherein the court held that "a telephone extension used without authorization or consent to surreptitiously record a private telephone conversation is not used in the ordinary course of business. This conclusion comports with the basic purpose of the statute, the protection of privacy . . . ." Accord Deal v. Spears, 980 F.2d 1153, 1157-58 (8th Cir. 1992). But cf. Epps v. St. Mary's Hospital of Athens, Inc., 802 F.2d 412, 415 (11th Cir. 1986); Briggs v. American Air Filter, Inc., 630 F.2d 414 (5th Cir. 1980); Anonymous v. Anonymous, 558 F.2d 677 (2d Cir. 1977). In addition, the Criminal Division takes the position that supervisory observing equipment used by some employers to monitor employee telephone communications falls within the "ordinary use" exception only if it is used solely for the legitimate business purpose of determining the need for training or improving the quality of service rendered by employees in the handling of telephone calls, and only after all employees are informed that their business telephone contacts are subject to observation.
See James v. Newspaper Agency Corp., 591 F.2d 579 (10th Cir. 1979).
The second exception from the definition of an "electronic, mechanical or other device" is a hearing aid used to correct subnormal hearing to no better than normal hearing. Use of an aid to hear sound that would otherwise be inaudible to a person with normal hearing does not fall within the exception.
1048 Definition -- "Person"
The term "person" is defined in 18 U.S.C. 2510(6) to mean any individual person as well as natural and legal entities. It specifically includes United States and state agents.
According to the legislative history, "(o)nly the governmental units themselves are excluded." S.Rep. No. 1097, 90th Cong., 2d Sess. 90 (1968).
1049 Definition -- "Contents"
The word "contents" is defined in 18 U.S.C. 2510(8) to include any information concerning the substance, purport, or meaning of any wire, oral, or electronic communication. It is significant that this definition does not include the identity of the parties or the existence of the communication. The definition distinguishes between the substance, purport, or meaning of the communication, and the existence of the communication or transactional records about it. See S.Rep. No. 541, 99th Cong., 2d Sess. 13 (1986).
1050 Scope of 18 U.S.C 2511 Prohibitions
Section 2511 of Title 18 prohibits the unauthorized interception, disclosure, and use of wire, oral, or electronic communications. The prohibitions are absolute, subject only to the specific exemptions in Title III. Consequently, unless an interception is specifically authorized, it is impermissible and, assuming existence of the requisite criminal intent, in violation of 18 U.S.C. 2511.
Section 2511(1)(a) is a blanket prohibition against the intentional interception, endeavor to intercept, or procurement of another person to intercept or endeavor to intercept any wire, oral, or electronic communication.
Section 2511(1)(b) is applicable only to oral communications. It is less pervasive than the prohibition against the interception of oral communications contained in Section 2511(1)(a) and was included because of a question "concerning the constitutionality of Section 2511(1)(a) as it relates to oral communications."
See S.Rep. No. 1097, 90th Cong., 2d Sess. 92 (1968); United States v. Burroughs, 564 F.2d 1111, 1115 (4th Cir. 1977). The Criminal Division recommends that Section 2511(1)(b) should be charged in cases involving interception of oral communications. However, although the interception of an oral communication may violate both 2511(1)(a) and (b), a person may be convicted of only one offense under the section. See S.Rep. No. 1097, 90th Cong., 2d Sess. 93 (1968). Section 2511(1)(c) and (d) of Title 18 provide additional penalties for the disclosure and use of illegally intercepted communications. The use or disclosure must be accompanied by knowledge or reason to know that the information concerned was obtained through an interception which violated 18 U.S.C. 2511(1). The knowledge element can be satisfied either when the subject has actual knowledge or when the occurrence of the element "can reasonably be foreseen." Pereira v. United States, 347 U.S. 1, 9 (1954).
Section 2511(1)(e) was added as one of the miscellaneous provision in the Violent Crime Control and Law Enforcement Act of 1994. It specifically prohibits (i) intentional disclosure of the contents of a wire, oral or electronic communication, intercepted by certain authorized procedures, (ii) knowing or having reason to know that the information was obtained through interception of such a communication in connection with a criminal investigation, (iii) having obtained or received the information in connection with a criminal investigation, and (iv) with intent to improperly interfere with a duly authorized criminal investigation.
Once the contents of an intercepted communication have become "public information" or "common knowledge," disclosure or use of the contents of the communication is no longer prohibited. See S.Rep. No. 1097, 90th Cong., 2d Sess 93 (1968).
1051 "Intentional" State of Mind
The 1986 Act changed the state of mind required to violate Sections 2511 and 2512 from "willful" to "intentional." The purpose of the amendment was to make clear that inadvertent interceptions are not crimes under Title III. The legislative history of the 1986 Act explains what is meant by the term "intentional": "Intentional" means more than that one voluntarily engaged in conduct or caused a result. Such conduct or the causing of the result must have been the person's conscious objective. A common means to describe conduct as intentional, or to say that one causes the result intentionally, is to state that it is done or accomplished "on purpose." S.Rep. No. 541, 99th Cong., 2d Sess. 23 (1986).
Courts have imposed a higher state of mind for the use provision, 18 U.S.C. 2511(1)(d), under a close reading of the statutory language that specifically requires a person know or have reason to know that "the information was obtained . . . in violation of this subsection." See, e.g., United States v. Wuliger, 981 F.2d 1497, 1501-02 (6th Cir. 1992), cert. denied, 510 U.S. 1191 (1994); Earley v. Smoot, 846 F. Supp. 451, 453 (D. Md. 1994) (noting that proof of knowledge of the unlawfulness of the interception had been required for only the use of the interception, not the making of it, and that the language of 18 U.S.C. 2511(1)(a) permitted liability for intentional conduct without a showing of disregard of a known legal duty).
1052 Elements of Section 2511 Offenses
The essential elements of a violation of 18 U.S.C. 2511(1)(a) are: (1) the intercepting, endeavoring to intercept, or procuring any other person to intercept a wire, oral, or electronic communication; and (2) the doing of such acts intentionally. These elements contain sub-elements. For example, a wire communication must be furnished or operated by a person engaged in providing facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce. Thus, private communication systems are covered where the "affecting commerce" jurisdictional basis is present. 18 U.S.C. 2510(1). In addition, an oral communication must be uttered by a person having a justifiable expectation of privacy. Id. 2510(2). An electronic communication must be made through a system that affects interstate or foreign commerce. Id. 2510(12).
The essential elements of an 18 U.S.C. 2511(1)(b) violation are: (1) the act or acts of using, endeavoring to use, or procuring another person to use or endeavor to use an electronic, mechanical, or other device or its method of operations or communication; (2) the device or its method of operation or target meets one of the criteria specified in 18 U.S.C. 2511(1)(b)(i) to (v); and (3) the doing of such act or acts intentionally.
The essential elements of a violation of 18 U.S.C. 2511(1)(c) are: (1) the act or acts of disclosing or endeavoring to disclose to another person the contents of a wire, oral or electronic communication; (2) the doing of such act or acts knowing or having reason to know that the information was obtained through an illegal interception of a wire, oral or electronic communication; and (3) the doing of such act or acts intentionally.
The essential elements of a violation of 18 U.S.C. 2511(1)(d) are: (1) the act or acts of using or endeavoring to use the contents of a wire, oral or electronic communication; (2) the doing of such act or acts knowing or having reason to know that the information was obtained through an illegal interception of a wire, oral or electronic communication; and (3) the doing of such act or acts intentionally.
The essential elements of a violation of 18 U.S.C. 2511(1)(e): (1) the act or acts of disclosing or endeavoring to disclose to another person the contents of a wire, oral or electronic communication, intercepted by means authorized by the enumerated sections; (2) the doing of such act or acts knowing or having reason to know that the information was obtained through interception of such a communication in connection with a criminal investigation; (3) the doing of such act or acts while having obtained or received the information in connection with a criminal investigation; and (4) the doing of such act or acts intentionally and specifically with intent to improperly interfere with a duly authorized criminal investigation.
1053 Exceptions to the Prohibitions -- Interceptions by Providers of Wire or Electronic Communications Services
Section 2511(2)(a)(i) of Title 18 permits employees of providers of wire or electronic communication services to intercept, disclose or use wire or electronic communications in the normal course of employment while engaged in any activity which is necessarily incident to the rendition of service or to the protection of the rights or property of the carrier of the communication. (The 1994 Act made a "technical correction" that expanded this exception, which applies to wire or electronic service providers in the normal course of their business of rendering services or protecting rights or property to include not only wire communications but also electronic communications. House Rep. No. 103-827, 103d Cong., 2d Sess. 31 (1994), reprinted in 1994 U.S.Code Cong. & Ad.News 3489, 3511.) Interception, divulgence, or use for other purposes is not permitted.
The provision allows telephone companies to combat "blue box" toll fraud by intercepting portions of telephone calls which have been completed by circumventing the companies' billing systems. See United States v. Auler, 539 F.2d 642 (7th Cir. 1976); United States v. Clegg, 509 F.2d 605 (5th Cir. 1975). The provision has been applied by one court to an entity, an airline that operated a computerized travel reservation system, that was not a traditional telephone company. See United States v. Mullins, 992 F.2d 1472 (9th Cir.), cert. denied, 509 U.S. 905 (1993).
1054 Exceptions to the Prohibitions -- Consensual Law Enforcement Interceptions
Under 18 U.S.C. 2511(2)(c), a person who is acting under color of law may intercept communications when he or she is a party to the communication or when a communicating party consents to the interception. Depending on the circumstances, consent may be express or implied in fact from surrounding circumstances indicating that the party knowingly agreed to the surveillance. See United States v. Van Poyck, 77 F.3d 285, 292 (9th Cir.), cert. denied, 117 S. Ct. 276 (1996).
1055 Exceptions to the Prohibitions -- Other Consensual Interceptions
When not acting under color of law, a person who intercepts a communication with the consent of a party does not violate Section 2511(1) unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any state. 18 U.S.C. 2511(2)(d). Consent may be expressed or implied. Indeed, "(s)urveillance devices in banks or apartment houses for institutional or personal protection would be impliedly consented to." S.Rep. No. 1097, 90th Cong., 2d Sess. 94 (1968). The Criminal Division believes that consent can be implied where the communication involves institutional or personal protection, the interception is limited to the minimum necessary to fulfill that interest, and a communicating party is notified that his or her communications are subject to interception. See Watkins v. L.M. Berry & Co., 704 F.2d 577 (11th Cir. 1983). The Criminal Division also believes that the "tortious purpose" must be a tortious purpose other than the mere intent to surreptitiously record a communication. See Roberts v. Americable International, Inc., 883 F. Supp. 499, 503 (E.D. Cal. 1995).
1056 Exceptions for the Interception of Certain Electronic Communications
Because the definition of an electronic communication, as added by the 1986 Act, is so broad and all-inclusive, it became necessary to carve out some forms of electronic communications that either appeared not to be deserving of privacy protection or where a policy decision was made by Congress not to include a specific form of electronic communication. The exceptions appear in Title III either as exceptions to defined terms in 18 U.S.C. 2510(12) or as exceptions to unlawful activity in Section 2511(2)(g). The exceptions in Section 2510 include tone only paging devices (18 U.S.C. 2510(12)(B)); communications from tracking devices (Id. 2510(12)(C)); and electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds (Id. 2510(12)(D)).
The exceptions to unlawful activity listed in 2511(2)(g) include electronic communications that are "readily accessible to the general public," as that term is defined in 18 U.S.C. 2510(16), and radio communications that are for the use of the general public, including ship to shore general public type communications, public safety communications, citizen band radio, general mobile radio services and the like. Id. 2511(2)(g). This subsection also contains other specific exceptions relating to interaction with the Federal Communications Act or where there is a necessity to service the system or locate interference.
Id.In addition, a person or entity providing an electronic communication service to the public may not intentionally divulge the contents of any communication while in transmission on that service except as otherwise authorized in Title III, or with the consent of the originator or intended recipient of the communication. Divulgence to a law enforcement agency is permitted if the communication was inadvertently obtained by the service provider and appeared to pertain to the commission of a crime. 18 U.S.C. 2511(3).
1057 Other Exceptions
In addition to the authorized interceptions discussed above, the remaining two major kinds of authorized interceptions are (1) the court-authorized or emergency interceptions conducted pursuant to 18 U.S.C. 2516 et seq., and (2) electronic surveillance conducted pursuant to the Foreign Intelligence Surveillance Act (50 U.S.C. 1801 et seq.).
1058 Penalties
The basic penalty provision for the intentional interception of a wire, oral, or electronic communication is five years imprisonment and a fine under Title 18, United States Code. 18 U.S.C. 2511(4)(a).
The first exception applies to unscrambled, unencrypted radio communications provided that the conduct is a first offense and is not for a tortious or illegal purpose, or purposes of direct or indirect commercial advantage or private financial gain. Id. 2511(4)(b). Under such circumstances, the offender is subject to one year imprisonment and a fine under Title 18, unless the communication is the radio portion of a cellular telephone communication, a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit, a public land mobile radio service communication, or a paging service communication, in which case the offender is subject only to a fine under Title 18.
In addition, under 18 U.S.C. 2511(5), if the interception is the private or home viewing of a private satellite video communication, or of a radio communication transmitted on frequencies allocated under subpart D of part 74 of the rules of the Federal Communications Commission (which deals with remote pickup broadcast stations), and if the communication is not scrambled or encrypted and the conduct is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, then the offender is subject only to civil suit by the federal government for appropriate injunctive relief. Id. 2511(5)(a)(i). A second or subsequent offense requires a mandatory $500 civil fine. 18 U.S.C. 2511(5)(a)(ii).
A further exception to the criminal provisions applies to the interception of an unencrypted, unscrambled satellite transmission that is transmitted (i) to a broadcasting station for purposes of retransmission to the general public; or (ii) as an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmissions or telephone calls. 18 U.S.C. 2511(4)(c).
It is intended that the private viewing of satellite cable programming, network feeds and certain audio subcarriers will continue to be governed exclusively by 47 U.S.C. 605. S.Rep. No. 541, 99th Cong., 2d Sess. 22 (1986). In addition, Congress intended the phrase "direct or indirect commercial advantage or private financial gain" to have the same meaning as those terms have when used in 47 U.S.C. 605(b). S.Rep. No. 541, 99th Cong., 2d Sess. 21 (1986).
1059 Use of the Contents of Illegally Intercepted Communications Against the Interceptor
Section 2515 of Title 18 prohibits use of the contents of illegally intercepted communications as evidence in judicial proceedings. No exception is contained on the face of the statute for the use of the contents, when necessary, as evidence in a prosecution against the interceptor. Nevertheless, the legislative history of Title III indicates that "in certain limited situations disclosure and use of illegally intercepted communications would be appropriate to the proper performance of the officers' duties." See S.Rep. No. 1097, 90th Cong., 2d Sess. 99 (1968). The example given is the use and disclosure of illegally intercepted communications "in the investigation and prosecution of an illegal wiretapper himself." Id. at 99-100.
In United States v. Underhill, 813 F.2d 105 (6th Cir.), cert. denied, 482 U.S. 906 (1987), the court held that tape recordings of conversations consensually made by operators of an illegal gambling enterprise for the purpose of facilitating their gambling operation would not be suppressed when used against the operators themselves, even though the recordings were illegal because they were made for a criminal purpose. The court reasoned that Congress could not have intended to deprive prosecutors of the clearest evidence of wrongdoing available simply because the defendants committed a crime in creating that evidence. But cf. United States v. Vest, 813 F.2d 477 (1st Cir. 1987) (Section 2515 requires suppression of a tape recording of a bribe transaction involving a corrupt policeman made privately by the briber without governmental participation).
In addition, it has been held that when the victims of the interceptions consent, the contents of the communication may be used against the interceptors. See United States v. Bragan, 499 F.2d 1376 (4th Cir. 1976). However, when the victims object, at least when the contents of the illegally intercepted communications are not necessary to prove the charges, one court has held that such contents may not be introduced at trial. See United States v. Liddy, 12 Cr.L.Rep. 2343 (D.C. Cir., Jan. 19, 1973) (otherwise unreported), rev'g United States v. Liddy, 354 F. Supp. 217 (D.D.C. 1973).
1060 Scope of 18 U.S.C 2512 Prohibitions
Section 2512 of Title 18 provides penalties for conduct concerning devices which are primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications. It prohibits sending such devices through the mail or in interstate or foreign commerce. Id. 2512(1)(b). It also prohibits the publication of an advertisement (1) concerning any device if the advertisement promotes the use of the device for the purpose of surreptitious interceptions, or (2) concerning devices which are primarily useful for the surreptitious interception of communications. A "device" under 2512 is intended to include any combination of parts designed or intended for use in converting those parts into such a device and from which such a device may be readily assembled. See S.Rep. No. 541, 99th Cong., 2d Sess. 13 (1986).
The legislative history of Section 2512 indicates that the statutory prohibition applies to such things as the martini olive transmitter, the spike mike, the infinity transmitter, and the microphone disguised as a wristwatch, picture frame, cuff link, tie clip, fountain pen, stapler, or cigarette pack. See S.Rep. No. 1097, 90th Cong., 2d Sess. 95 (1968). However, the legislative history specifically exempts parabolic and other directional microphones "ordinarily used by broadcasters at sports events" from the reach of the statute. Id.
It is worthy of note that 18 U.S.C. 2512(1)(c)(ii) prohibits the advertisement of any device for "surreptitious interception." Such advertising is prohibited although the device itself may not be primarily useful for surreptitious interceptions and although the interceptions promoted are surreptitious, one-party consensual interceptions permissible under 18 U.S.C. 2511(2)(d). See United States v. Bast, 495 F.2d 138 (D.C. Cir. 1974).
Section 2512 violations are punishable by imprisonment of not more than five years and a fine under Title 18.
Section 2512(2) excepts from the prohibitions of the section providers of wire or electronic communication services acting in the normal course of their business and law enforcement officers acting in the normal course of their activities, or persons under contract with such law enforcement agencies.
1061 Unlawful Access to Stored Communications -- 18 U.S.C. 2701
The 1986 Act added new statutory provisions, 18 U.S.C. 2701 to 2710, to protect the privacy of stored electronic communications, either before such a communication is transmitted to the recipient, or, if a copy of the message is kept, after it is delivered. These provisions focus on technologies such as electronic mail and computer transmissions, where copies of the messages are kept. Electronic storage is defined in 18 U.S.C. 2510(17) as both any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof and the storage of such communication by an electronic communication service for purposes of backup protection of such communication.
Section 2701 of Title 18 makes it an offense to either (a) intentionally access, without authorization, a facility through which an electronic communication service is provided; or (b) intentionally exceed the authorization of such facility; and as a result of this conduct, obtain, alter or prevent authorized access to a wire or electronic communication while it is in electronic storage in such a system. 18 U.S.C. 2701(a).
This section covers "electronic mail" service, which permits a sender to transmit a digital message to the service's facility, where it is held in storage until the addressee requests it, U.S.C. 2701, as well as "voice mail" service.
This provision is intended to address "computer hackers" and corporate spies. The provision is not intended to criminalize access to "electronic bulletin boards," which are generally open to the public. A communication will be found to be readily accessible to the general public if the telephone number of the system and other means of access are widely known, and if a person does not, in the course of gaining access, encounter any warnings, encryptions, password requests, or other indicia of intended privacy. To access a communication on such a system is not a violation of the law. 18 U.S.C. 2701(a).
If a violation of 18 U.S.C. 2701(a) was committed for commercial advantage, malicious destruction or damage, or private financial gain, the violator could receive up to a year in prison and a fine as provided by Title 18, United States Code, for the first offense and up to two years imprisonment and a fine as provided by Title 18 for a second or subsequent offense. In all other cases, a jail term of up to six months and a fine under Title 18 could be imposed. 18 U.S.C. 2701(b)(2).
1062 Unauthorized Installation or Use of Pen Registers and Trap and Trace Devices -- 18 U.S.C. 3121
The 1986 Act added 18 U.S.C. 3121 through 3126, which regulate the use of pen registers and trap and trace devices. Section 3121(a) contains a general prohibition against installation or use of a pen register or trap and trace device without first obtaining a court order under 18 U.S.C. 3123 or under FISA. Section 3121(c), added in 1994, requires a government agency authorized to use a pen register to use technology reasonably available to it that restricts the recording or decoding of the impulses to the dialing and signaling information utilized in call processing. Section 3121(d) provides that whoever "knowingly" violates 3121(a) is subject to a fine as provided by Title 18 and imprisonment of not more than one year.
The statute contains provisions exempting a service provider using a pen register or trap and trace device in order to test, operate, or maintain its equipment and services, or to protect the property rights of its customers, 18 U.S.C. 3121(b)(1), or to record the fact that a wire or electronic communication was initiated or completed in order to protect itself, another provider, or a customer from fraud or abuse. 18 U.S.C. 3121(b)(2). Finally, it is not necessary to obtain a court order when the telephone user consents to the installation of the pen register or trap and trace device. 18 U.S.C. 3121(b)(2).
1063 Providing Notice of Electronic Surveillance -- 18 U.S.C. 2232(c)
The 1986 Act amended 18 U.S.C. 2232 to criminalize the disclosure of an authorization or an application for electronic surveillance under Title III or FISA. The new provision, added as subsection (c) to 18 U.S.C. 2232, provides a five year penalty and a fine under Title 18 for warning or attempting to warn the subject of an electronic surveillance application "in order to obstruct, impede or prevent such interception." The Supreme Court has recently provided guidance in construing this subsection. United States v. Aguilar, 115 S. Ct. 2357, 2363-65 (1995).
1064 Injunctions Against Illegal Interception -- 18 U.S.C. 2521
The 1986 Act added 18 U.S.C. 2521, which authorizes the Attorney General to initiate civil proceedings to enjoin a felony violation of Title III. The new provision directs the court to proceed "as soon as practicable" to the hearing and determination of such an action, and authorizes the court to enter a restraining order, prohibition, or other action as is warranted before final determination to prevent a continuing and substantial injury to the United States or to any person or class of persons for whose protection the action is brought. In addition, Section 2521 provides that any such injunction proceeding is governed by the Federal Rules of Civil Procedure, except that, if an indictment has been returned against the respondent, discovery is governed by the Federal Rules of Criminal Procedure.
1065 Interference With the Operation of a Satellite -- 18 U.S.C. 1367
The 1986 Act added 18 U.S.C. 1367, which makes it an offense to intentionally or maliciously interfere with the authorized operation of a communications or weather satellite, or to hinder any satellite transmission. This section is intended to cover interference with transmissions from the ground to the satellite and transmissions from the satellite to the ground. See S.Rep. No. 541, 99th Cong., 2d Sess. 49 (1986). The penalty for this offense is a fine under Title 18 and imprisonment for not more than 10 years.
The criminal prohibition does not apply to any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency or of an intelligence agency of the United States.
1066 Interception of Radio Communications -- 47 U.S.C. 605
Section 605(a) of Title 47 prohibits persons who transmit or receive wire or radio communications from divulging such communications except to authorized persons. According to the legislative history, the provision "is designed to regulate the conduct of communications personnel." S.Rep. No. 1098, 90th Cong., 2d Sess. 108 (1968).
The nature of radio communications is such that there is the potential for a multitude of petty 47 U.S.C. 605 violations which do not warrant the initiation of federal prosecutions. Consequently, the proper use of federal law enforcement resources usually requires that investigation and prosecution of 47 U.S.C. 605 violations be reserved for those cases in which there is a continuing, repeated, and flagrant violation of the law despite the application of lesser measures. It should be noted that the Cable Communications Policy Act of 1984 carved out an exception for the interception of satellite cable programming by an individual for private viewing. Prior to the act, such an interception and use was, arguably, a violation of the law.
The word "person" in 47 U.S.C. 605 does not include a law enforcement officer acting in the usual course of his or her duties. See United States v. Hall, 488 F.2d 193 (9th Cir. 1973); S.Rep. No. 1097, 90th Cong., 2d Sess. 108 (1968).
A person who "willfully" violates the criminal prohibitions contained in this section is subject to a fine of not more than $2,000 and imprisonment for not more than six months. 47 U.S.C. 605(e)(1). If a person willfully violates this provision for purposes of direct or indirect commercial advantage or private financial gain, the penalty is a fine of not more than $50,000 and imprisonment for not more than two years, and a $100,000 fine and imprisonment for not more than five years for any subsequent conviction. Id. 605(e)(2).
The statute also prohibits the importation, manufacture, sale, or distribution of equipment with the intent to use it in any activity prohibited by 605(a), and provides the same criminal penalties of not more than $500,000 and imprisonment of not more than five years for each violation. Id. 605(e)(4).
1067 Unauthorized Reception of Cable Service -- 47 U.S.C. 553
The Cable Communications Policy Act of 1984 added a new section, 47 U.S.C. 553. This section prohibits receiving cable communications service without permission of the operator, thereby prohibiting the theft of commercial cable communications. The sale or distribution of equipment that would enable a person to receive, without authority, the reception of communications services offered over a cable system also falls within the proscription of this provision.
The Act provides for both criminal and civil penalties for violations of this section. The victim of an interception may bring a civil action in federal court for an injunction, damages, and costs, including reasonable attorneys' fees. Since there is a civil remedy for violations of 47 U.S.C. 553, United States Attorneys should consider whether this civil remedy is an adequate alternative to prosecution.
1068 Violation of FCC Regulations -- 47 U.S.C. 502
Under 47 U.S.C. 502, any person who willfully and knowingly violates a regulation of the Federal Communications Commission is subject to a maximum fine of $500 for each day on which a violation occurs. Two pertinent regulations are found in 47 C.F.R. 2.701 and 15.9, which prohibit the use of radio devices to intercept or record conversations unless all parties to the conversation first consent.
1069 Overview of Pertinent Provisions -- Interstate and Foreign Extortion
Section 875 of Title 18 prohibits the transmission in interstate or foreign commerce of: (1) any demand or request for ransom or reward for the release of any kidnapped person; (2) a threat to kidnap or injure any person, either with or without the intent to extort; or (3) with intent to extort, a threat to injure the property or reputation of any person, including the reputation of a deceased person, or a threat to accuse any person of a crime. Title 18, U.S.C., section 875 applies to both interstate and foreign telephone calls or other communications. Thus, any communication that crosses state or national borders is included within the scope of the provision. See 18 U.S.C. 3237 for questions concerning venue.
Section 876 of Title 18 prohibits causing the mailing by the Postal Service, or the depositing for mail, of matter which contains: (1) a demand or request for ransom or reward for the release of any kidnapped person; (2) a threat to kidnap or injure any person either with or without the intent to extort; or (3) with intent to extort, a threat to injure the property or reputation of any person, including the reputation of a deceased person, or threat to accuse any person of a crime.
Section 877 of Title 18 prohibits the mailing, in a foreign country, through the post office establishment of that country, with final delivery in the United States through the Postal Service, of any communication containing: (1) a demand or request for ransom or reward for the release of any kidnapped person; (2) a threat to kidnap or injure any person, either with or without the intent to extort; (3) with intent to extort, a threat to injure the property or reputation of any person, including the reputation of a deceased person, or a threat to accuse any person of a crime.
1070 Investigative Jurisdiction for Extortion Cases
The Postal Service investigates the depositing for mail, or causing to be so delivered, of any threat to injure the reputation of any person or to accuse any person of a crime. Investigative jurisdiction for the balance of the statutes is vested in the Federal Bureau of Investigation (FBI). Certain extortion incidents may be investigated as incidents of domestic terrorism.
1071 Supervisory Authority for Extortion Cases
Supervisory authority for these statutes is vested in the Terrorism and Violent Crime Section. Appropriate attorneys can be reached at (202) 514-0849.
1072 Special Considerations in Proving a Threat
A threat has been defined as "an avowed present determination or intent to injure presently or in the future." See United States v. Dysart, 705 F.2d 1247, 1256 (10th Cir.), cert. denied, 464 U.S. 934 (1983); United States v. Marino, 148 F. Supp. 75, 77 (N.D.Ill. 1957). See also 2 E. Devitt and C. Blackmar, Federal Jury Practice Instructions, 66.04 (3d ed. 1977). Most courts have held that the government need not prove that the defendant actually intended to carry out the threat. See, e.g., Dysart, supra, 705 F.2d at 1257; United States v. Kelner, 534 F.2d 1020, 1023 (2d Cir. 1977), cert. denied, 429 U.S. 1022 (1978)(collecting cases). Contra, United States v. Patillo, 438 F.2d 13, 16 (4th Cir. 1971) (en banc). The issue of defendant's intent in uttering particular words (e.g., whether an alleged threat was made seriously or merely in jest), is a question of fact to be determined by the jury upon consideration of the words themselves and the circumstances surrounding their use. See Martin v. United States, 691 F.2d 1235, 1239-40 (8th Cir. 1982), cert. denied, 459 U.S. 1211 (1983); United States v. Carrier, 672 F.2d 300, 304-06 (2d Cir.), cert. denied, 457 U.S. 1139 (1982). The circuits are split on the question of whether specific or general intent is required. See United States v. Darby, 37 F.3d 1059 (4th Cir. 1994), cert. denied, ___U.S.___, 115 S. Ct. 1826 (1995).
A threat may be communicated to persons other than the person to whom the threat is directed. See, e.g., United States v. Cooper, 523 F.2d 8 (6th Cir. 1975) (threats to injure fictitious persons made during calls to radio station). See also Kelner, supra, (defendant threatened during television interview to assassinate foreign leader).
The Ninth Circuit has stated that, as a general rule, the truth of damaging allegations underlying a threat to injure the reputation of another is no defense to a charge of extortion.
See United States v. Van der Linden, 561 F.2d 1340, 1341 (9th Cir. 1977), cert. denied, 435 U.S. 974 (1978).
1073 The Foreign Intelligence Surveillance Act (FISA) -- 50 U.S.C. 1809
Congress has enacted comprehensive legislation governing electronic surveillance. In 1968, Congress passed Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510 et seq. In 1978, the Foreign Intelligence Surveillance Act of 1978 ("FISA"), 50 U.S.C. 1801 et seq., was enacted. In 1986, Congress passed the Electronic Communications Privacy Act of 1986 ("1986 Act"), Public Law No. 99-508, which substantially revised Title III to provide coverage for the technological advances developed in the area of electronic communications since the passage of the original act. Minor amendments have since been made to the 1986 Act.
These statutes share several common characteristics. Both Title III and FISA prescribe authorization procedures which must be followed before electronic surveillance can be conducted. Compare 18 U.S.C.
2516 to 2517 with 50 U.S.C. 1802 to 1805. These procedures include judicial approval of surveillance applications; minimization of interceptions by surveilling officials; and limitations on the use of intercepted information. Moreover, both statutes impose civil and criminal sanctions on unauthorized surveillance activities. Compare 18 U.S.C. 2511 (criminal penalties) and 2520 (civil sanctions) with 50 U.S.C. 1809 (criminal penalties) and 1810 (civil sanctions). On the other hand, one court has distinguished between these regimes, holding that "FISA regulates both aural and visual electronic surveillance conducted for foreign intelligence purposes, and [Title III] regulates aural electronic surveillance conducted for domestic purposes." United States v. Koyomejian, 970 F.2d 536, 540 (9th Cir.) (en banc), cert. denied, 506 U.S. 1005 (1992).
1074 Investigative Jurisdiction Investigative jurisdiction over violations of 50 U.S.C. 1809 rests with the Federal Bureau of Investigation.
1075 50 U.S.C. 1809 -- Elements of the Offense Section 1809(a) of Title 50 provides that a person is guilty of an offense if he or she either:
Thus, Section 1809(a) reaches two distinct acts: (1) engaging in unauthorized electronic surveillance under color of law; and (2) using or disclosing information obtained under color of law through unauthorized electronic surveillance. Each offense involves an "intentional" state of mind and unauthorized "electronic surveillance."
Even though none of these elements mentions foreign intelligence, one court has explained that "the FISA applies only to surveillance designed to gather information relevant to foreign intelligence." United States v. Koyomejian, 970 F.2d 536, 540 (9th Cir. 1992) (en banc), cert. denied, 506 U.S. 1005 (1992). In fact, all applications for an order from the Foreign Intelligence Surveillance Court require a certification from a presidentially designated official that the purpose of the surveillance is to obtain foreign intelligence. 50 U.S.C. 1804(a)(7).
1076 The Intent Requirement
FISA requires that a violation of Section 1809(a) be done "intentionally." The legislative history makes clear that Section 1809(a) violations were intended to be specific intent crimes, reaching only purposeful or deliberate efforts to engage in unauthorized electronic surveillance. H.R.Rep. No. 1283, 95th Cong., 2d Sess. 97 (1978).
1077 Electronic Surveillance
Under FISA "electronic surveillance" is defined to include "the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs within the United States . . . ." 50 U.S.C. 1801(f)(2). The "contents" of a communication is defined to include "any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication," 50 U.S.C. 1801(n), thus suggesting that the surveillance covered by FISA includes more than simply intercepting the verbal contents of some communication. Cf. 18 U.S.C. 2510(8) (defining contents under Title III as including "any information concerning the substance, purport, or meaning of that communication").
The legislative history of FISA confirms that this broad definition of electronic surveillance was intended to reach beyond verbal interceptions to other activities. H.R.Rep. No. 1283, 95th Cong., 2d Sess. 51 (1978); see S.Rep. No. 701, 95th Cong., 2d Sess. 35 (1978).
Accordingly, both FISA and Title III apply to the interception of computer data transmissions, voice and display paging devices, and regulate the use by law enforcement officials of pen registers and trap and trace devices. One court has noted that "[i]n contrast [to Title III], it is clear that FISA does regulate silent video surveillance." United States v. Koyomejian, 970 F.2d 536, 540 (9th Cir. 1992) (en banc), cert. denied, 506 U.S. 1005 (1992).
Tone only paging devices are not covered under either FISA or Title III. FISA prohibits the interception of radio communications only when the communications are made "under circumstances in which a person has a reasonable expectation of privacy." 50 U.S.C. 1801(f)(1). Since the message transmitted by a tone only paging device is not a communication over which there would be a reasonable expectation of privacy, FISA should not prohibit its interception.
1078 Persons Covered by 50 U.S.C. 1809(a)
The scope of 50 U.S.C. 1809 is limited by subsection (d) of that statute, which provides that: "[t]here is federal jurisdiction over an offense under this section if the person committing the offense was an officer or an employee of the United States at the time the offense was committed." Thus, jurisdiction exists over violations of Section 1809(a) only if the person acting under color of law was also a federal officer or employee.
1079 Penalties
Although FISA and Title III by their terms cover many of the same wire and radio communications, the criminal penalties applicable to each may differ. Compare 50 U.S.C. 1809(c) (5 years imprisonment and $10,000 fine) with 18 U.S.C. 2511(4) (providing a sliding scale of imprisonment depending on the nature of the communication and other circumstances, and fines under Title 18). Moreover, one court has held that "the FISA applies only to surveillance designed to gather information relevant to foreign intelligence." United States v. Koyomejian, 970 F.2d 536, 540 (9th Cir. 1992) (en banc), cert. denied, 506 U.S. 1005 (1992).
Because the 1986 Act is the most recent enactment of criminal penalties for unlawful interceptions, it is recommended that United States Attorneys' Offices (USAOs) prosecute electronic eavesdropping violations under Title III rather than under FISA unless the purpose of the eavesdropping was gathering foreign intelligence information. The legislative history of FISA makes clear that a single unlawful interception should not be punished under both statutes. See H.R. No. 1283, 95th Cong., 2d Sess. 97 (1978).
It is not necessary that the eavesdropping be exclusively related to gathering foreign intelligence to implicate FISA. See, e.g., United States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991) ("Although evidence obtained under FISA subsequently may be used in criminal prosecutions, investigation of criminal activity cannot be the primary purpose of the surveillance." (citing United States v. Duggan, 743 F.2d 59, 78 (2d Cir. 1984)), cert. denied, 506 U.S. 816 (1992); United States v. Rahman, 861 F. Supp. 247, 251 (S.D.N.Y. 1994) (rejecting argument that because the government believe that these defendants had violated or would violate a criminal statute, the primary purpose of the surveillance cannot have been the gathering of foreign surveillance information). In fact, FISA specifically provides that information obtained pursuant to its procedures may later be used for law enforcement purposes with the approval of the Attorney General. 50 U.S.C. 1806(b). It is the Criminal Division's position that USAOs should prosecute electronic eavesdropping violations under FISA only if the purpose of the eavesdropping is related to gathering foreign intelligence.
1080 Providing Notice of Electronic Surveillance -- 18 U.S.C. 2232(c)
The 1986 Act amended 18 U.S.C. 2232 to criminalize the disclosure of an authorization or an application for electronic surveillance under Title III or FISA. The new provision, added as subsection (c) to 18 U.S.C. 2232, provides a five year penalty and a fine under Title 18 for warning or attempting to warn the subject of an electronic surveillance application "in order to obstruct, impede or prevent such interception." The Supreme Court has recently provided guidance in construing this subsection. United States v. Aguilar, 115 S. Ct. 2357, 2363-65 (1995).
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