Wiretaps and criminal justice

SIGNIFICANCE: Wiretaps can be effective law-enforcement tools for gathering information that helps identify criminal activity and often lead to successful prosecutions; however, they are controversial because they have often been used illegally and pose the threat of increasing government intrusions on privacy.

As of 2024, federal law-enforcement agencies such as the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA) as well as forty-four states have laws allowing court-ordered interception of private conversations by law enforcement. Intercepted conversations may include oral, wired, or cellular transmissions. In 2022, 2,406 wiretaps were authorized, an increase of 7 percent from the previous year. Of those, 1,132 were authorized by state judges and 1,274 were authorized by federal judges. All such intercepted conversations are legally required to be reported to the Administrative Office of the United States Courts, which makes an annual report to the Congress, the Wiretap Report. A device called a pen register, which records the telephone numbers called and requires judicial approval, is often used to provide probable cause for the wiretap.

By the 1960s, technology had been developed that was being used frequently by both law-enforcement officers and private detectives to monitor telephone conversations of individuals who had a reasonable expectation of privacy. In response to complaints about such activity, Congress passed Title III of the Omnibus Crime Control and Safe Streets Act of 1968. That law established guidelines and standards for both federal and state law enforcement and still governs actions of court-ordered wiretaps.

In 2001, Congress passed the Patriot Act, which expanded powers granted to law-enforcement agencies by the Foreign Intelligence Surveillance Act of 1978 to gather foreign intelligence information. Title III of the new law allowed wiretaps to be used to investigate possible terrorism within the United States. These powers included roving wiretaps, which allow electronic surveillance to continue even after suspects change their telephones, venues, or Internet accounts. Title III also prohibits all private wiretaps.

Enforcement

The President’s Commission on Law Enforcement and Administration of Justice, the President’s Commission on Organized Crime in 1983, the Pennsylvania Crime Commission, and the McClellan Committee of the late 1950s all concluded that traditional law-enforcement methods were not effective against complex criminal organizations such as the Mafia, South American drug cartels, triads, outlaw motorcycle gangs, and—in the twenty-first century—terrorists. Wiretaps have been successful, when combined with traditional law-enforcement methods, against such crime bosses as John Gotti (the head of the Mafia’s Gambino family) and Pablo Escobar (the head of Colombia’s Medellin drug cartel).

Leaders of criminal organizations have traditionally been skilled at insulating themselves against arrest and prosecution, typically by having others in their organizations carry out their criminal acts. The leaders usually engage in conversations with their subordinates only when giving them orders or discussing criminal activities. Telephones are frequently used as communication devices and thus are excellent sources of evidence that can be intercepted by wiretaps.

Wiretaps can be very expensive, owing to the legal requirements requiring the presence of two monitors, in addition to the officers who actually conduct the surveillance of the suspects. The monitors are necessary for the corroboration and identification of callers. Electronic monitoring also often entails overtime wages, expensive equipment and training, and the costs of transcribing recordings. Monitors also take notes that are part of the record and are used to verify what is said on the communication devices. Monitors must be alert to noticing when conversations are not criminal so that they can stop recordings when conversations have no evidentiary value.

Wiretapping is a complex operation requiring analytical, legal, and technological expertise. Moreover, because many conversations are conducted in codes, analysts experienced in decoding may be required. Intelligence analysts synthesize information to develop probable cause to obtain judicial approval of a wiretap order/warrant. Targets of wiretaps must be notified that their conversations have been intercepted within ninety days after termination of the judicial orders. Most orders permit wiretaps for thirty days and require judicial reviews for extensions.

Wiretaps often collect valuable evidence that is used against major violators, but they sometimes produce little or no useful evidence. They can be potent tools in the arsenal of criminal investigation, but tools that require considerable thought and planning before they are implemented.

Bibliography

Adams, James A., and Daniel D. Blinka. Electronic Surveillance: Commentaries and Statutes. Notre Dame, Ind.: National Institute for Trial Advocacy, 2003.

Brzezinski, Matthew. Fortress America: On the Frontlines of Homeland Security—An Inside Look at the Coming Surveillance State. New York: Bantam Books, 2004.

Chan, Jason, Jin-Hyuk Kim, and Liad Wagman. "State Versus Federal Wiretap Orders: A Look at the Data." International Review of Law & Economics, vol. 70, June 2022, www.uscourts.gov/statistics-reports/wiretap-report-2022. Accessed 11 July 2024.

Diffie, Whitfield, and Susan Landau. Privacy on the Line: The Politics of Wiretapping and Encryption. Rev. ed. Cambridge, Mass.: MIT Press, 2010.

Keefe, Patrick Radden. Chatter: Dispatches from the Secret World of Global Eavesdropping. New York: Random House, 2005.

Schulhofer, Stephen J. The Enemy Within: Intelligence Gathering, Law Enforcement, and Civil Liberties in the Wake of September 11. New York: Century Foundation Books, 2002.

"Wiretap Report 2022." USCourts.gov, Administrative Office of the US Courts, 31 Dec. 2022, www.uscourts.gov/statistics-reports/wiretap-report-2022. Accessed 11 July 2024.