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An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping

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An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping Order Code 98-326 CRS Report for Congress Received through the CRS Web Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping Updated August 1, 2001 Gina Stevens Legislative Attorney American Law Division Charles Doyle Senior Specialist American Law Division Congressional Research Service ˜ The Library of Congress Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping Summary This report provides an overview of federal law governing wiretapping and electronic eavesdropping. It also surveys state law in the area and contains a bibliography of legal commentary. It is a federal crime to wiretap or to use a machine to capture the communications of others without court approval, unless one of the parties has given their prior consent. It is likewise a federal crime to use or disclose any information acquired by illegal wiretapping or electronic eavesdropping. Violations can result in imprisonment for not more than 5 years; fines up to $250,000 (up to $500,000 for organizations); in civil liability for damages, attorneys fees and possibly punitive damages; in disciplinary action against any attorneys involved; and in suppression of any derivative evidence. Congress has created separate but comparable protective schemes for electronic mail (e-mail) and against the surreptitious use of telephone call monitoring practices such as pen registers and trap and trace devices. Each of these protective schemes comes with a procedural mechanism to afford limited law enforcement access to private communications and communications records under conditions consistent with the dictates of the Fourth Amendment. The government has been given even more narrowly confined authority to engage in wiretapping and electronic eavesdropping in the name of foreign intelligence gathering in the Foreign Intelligence Surveillance Act. Three issues in the area at one time proved particularly difficult to resolve. They involve cellular telephones, digital telephony, and encryption. Intentionally intercepting any telephone conversation has long been a federal crime. Congress has adjusted federal law to make it clear that intentionally intercepting a telephone conversation involving the use of cellular telephone is a crime. Companies that provide telephone and other communications services have long cooperated in the law enforcement execution of court orders authorizing wiretapping and electronic eavesdropping. Digital telephony and the explosion of other technological advances have made that assistance both more difficult and more expensive. Congress passed the Communications Assistance for Law Enforcement Act (CALEA) to help pay communication service providers for the cost of configuring their systems to accommodate law enforcement needs. Encryption is a means of protecting any computer-related communication from wiretapping or interception. The federal government has been instrumental in the development of more robust encryption technology to protect government and private information. Export restrictions, challenged on First Amendment grounds, have been relaxed. Contents INTRODUCTION ........................................... 1 BACKGROUND ............................................ 2 CRIMES .................................................. 7 Generally .............................................. 7 Illegal Wiretapping and Electronic Eavesdropping ............... 7 Illegal Disclosure of Information Obtained by Wiretapping or Electronic Eavesdropping ................. 22 Illegal Use of Information Obtained by Unlawful Wiretapping or Electronic Eavesdropping ..................................... 25 Shipping, manufacturing, distributing, possessing or advertising wire, oral, or electronic communication interception devices ........... 26 Stored electronic communications .......................... 29 Pen registers and trap and trace devices ...................... 32 Foreign Intelligence Surveillance Act ........................ 33 PROCEDURE ............................................. 35 Generally ............................................. 35 Law Enforcement Wiretapping and Electronic Eavesdropping ..... 35 Stored Electronic Communications .......................... 40 Pen Registers and Trap and Trace Devices .................... 42 Foreign Intelligence Surveillance Act ........................ 45 ISSUES NO LONGER QUITE SO NETTLESOME ................ 51 Cell Phones ........................................... 51 CALEA .............................................. 53 Encryption ............................................ 54 APPENDICES ............................................. 58 Appendix I ............................................ 58 Appendix I ............................................ 59 Appendix III .......................................... 60 Appendix IV .......................................... 61 Appendix V ........................................... 62 Appendix VI .......................................... 63 Selected Bibliography .................................... 64 Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping INTRODUCTION1 Depending on one’s perspective, wiretapping and electronic eavesdropping are either “dirty business,” essential law enforcement tools, or both. This is a very general overview of the federal statutes that proscribe wiretapping and electronic eavesdropping and of the procedures they establish for law enforcement and foreign intelligence gathering purposes. Special attention is given to three particularly troublesome areas of the law: digital telephony, cell phone interception, and encryption. Although the specifics of state law are beyond the scope of this report, citations to related state statutory provisions and a selected bibliography of legal materials have been appended. 1 Portions of this report draw upon a series of earlier reports, no longer available, entitled: Wiretapping and Electronic Surveillance: A Brief Discussion of Pertinent Supreme Court Cases, A Summary and Compilation of Federal State Statutes, and a Selected Legal Bibliography (1970); Wiretapping and Electronic Surveillance: A Brief Discussion of Pertinent Supreme Court Cases, A Summary and Compilation of Federal State Statutes, and a Selected Legal Bibliography (1971); Wiretapping and Electronic Surveillance: Federal and State Statutes (1974); Taps and Bugs: A Compilation of Federal and State Statutes Governing the Interception of Wire and Oral Communications (1981); The Interception of Communications: A Legal Overview of Bugs and Taps (1988); Wiretapping & Electronic Surveillance: The Electronic Communications Privacy Act and Related Matters (1992); Taps, Bugs & Telephony: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (1998). As used in this report “electronic eavesdropping” refers to the use of hidden microphones, recorders and any other mechanical or electronic means of capturing communications, other than wiretapping (tapping into telephone conversations). In previous versions of this report and other earlier writings, it was common to use a more neutral term – electronic surveillance – at least when referring to law enforcement use. Unfortunately, continued use of the term “electronic surveillance” rather than “electronic eavesdropping” risks confusion with forms of surveillance that either have individualistic definitions (e.g., “electronic surveillance” under the Foreign Intelligence Surveillance Act, 18 U.S.C. 1801(f)), that involve surveillance that does not capture conversation (e.g., thermal imaging or electronic tracking devices), or that may or may not capture conversation (e.g., video surveillance which when it does capture conversation is covered by the law governing electronic eavesdropping, see United States v. Williams, 124 F.3d 411 (3d Cir. 1997). CRS-2 BACKGROUND At common law, “eavesdroppers, or such as listen under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance and presentable at the court-leet; or are indictable at the sessions, and punishable by fine and finding of sureties for [their] good behavior,” 4 BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, 169 (1769). Although early American law proscribed common law eavesdropping, the crime was little prosecuted and by the late nineteenth century had “nearly faded from the legal horizon.”2 With the invention of the telegraph and telephone, however, state laws outlawing wiretapping or indiscretion by telephone and telegraph operators preserved the spirit of the common law prohibition in this country.3 Congress enacted the first federal wiretap statute as a temporary measure to prevent disclosure of government secrets during World War I.4 Later, it proscribed intercepting and divulging private radio messages in the Radio Act of 1927,5 but did not immediately reestablish a federal wiretap prohibition. By the time of the landmark Supreme Court decision in Olmstead however, at least forty-one of the forty-eight states had banned wiretapping or forbidden telephone and telegraph employees and officers from disclosing the content of telephone or telegraph messages or both.6 2 “Eavesdropping is indictable at the common law, not only in England but in our states. It is seldom brought to the attention of the courts, and our books contain too few decisions upon it to enable an author to define it with confidence. It never
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