Electronic surveillance
Electronic surveillance refers to the use of technology by law-enforcement agencies to monitor individuals' communications and activities, particularly in the context of criminal investigations. This practice enables authorities to observe difficult-to-detect criminal behaviors and gather evidence, thus enhancing their investigative capabilities. Key legal frameworks governing electronic surveillance in the United States include the Federal Wiretap Act and the Foreign Intelligence Surveillance Act (FISA), which outline the procedures for obtaining court authorization to conduct surveillance. The USA Patriot Act of 2001 expanded these powers significantly, allowing broader surveillance related to national security concerns.
Methods of electronic surveillance commonly employed include wiretaps, which capture real-time communications, and pen register devices that record telephone numbers dialed. The Patriot Act also introduced the concept of "roving taps," allowing surveillance on multiple communication lines used by suspects without specifying each one. In recent years, agencies have increasingly turned to social media monitoring as a tool for identifying threats and gathering intelligence, although this practice raises concerns regarding privacy and civil liberties. Overall, electronic surveillance remains a contentious issue, balancing the need for security with the protection of individual rights.
Subject Terms
Electronic surveillance
SIGNIFICANCE: Electronic surveillance significantly increases the ability of law-enforcement officers to conduct investigations of nontraditional or difficult-to-observe criminal targets.
Electronic surveillance is a tool utilized by law-enforcement agencies in the course of ongoing criminal investigations. Federal agencies have traditionally had broad legal powers to monitor telephone conversations, electronic mail, pagers, wireless phones, computers, and all other electronic devices. These powers were increased significantly after passage of the USA Patriot Act in 2001.
Popularly referred to as “tapping” in general discourse, electronic surveillance is governed by two statutes: the Federal Wiretap Act and the Foreign Intelligence Surveillance Act (FISA). The former, sometimes referred to as Title III, was initially passed in 1968 and expanded in 1986. It set procedures for court authorization of real-time surveillance in criminal investigations of all electronic communications, including voice, electronic mail, fax, and Internet.
Typically, before wiretaps can commence, court orders issued by judges must be obtained by the agencies requesting the surveillance. The government is responsible for providing the judges with affidavits detailing probable cause that crimes have been, are being, or are about to be committed. Wiretaps may be ordered for several activities, including but not limited to drug trafficking, child pornography, and terrorist activities. The Patriot Act expanded the list of criminal statutes for which wiretaps can be ordered. Wiretaps are used to prevent, as well as punish crimes, as the government can set up wiretaps in advance of crimes being executed. In such instances, the wiretaps are used to identify planning and conspiratorial activities related to criminal acts. Government requests for wiretaps are rarely denied.
The Foreign Intelligence Surveillance Act of 1978 allows wiretapping of aliens and citizens in the United States. Again, probable cause must be provided suggesting that the targets of surveillance are members of foreign terrorist groups or are agents of foreign powers. For American citizens and aliens who are permanent residents of the United States, there must also be probable cause to believe that the persons targeted are engaged in activities that may involve criminal violations. Suspicion of possible illegal activity is not required, however, in cases involving aliens who are not permanent residents of the United States. For such persons, membership in terrorist organizations is enough to justify surveillance, even if the activities in which they engage on behalf of their organizations are legal.
The Patriot Act and Electronic Surveillance
A major change introduced by the Patriot Act was to allow prosecutors to use FISA for the purposes of gathering evidence in criminal investigations of national security crimes. There are also no legislative limits on electronic observation conducted overseas, as neither Title III nor FISA has any application to intelligence collection activities outside the United States.
The most common form of electronic surveillance technology used in the United States is the pen register and trap-and-trace technology. Pen registers record and decode all numbers dialed by electronic devices such as telephones, while trap-and-traces capture the originating sources of incoming calls. Together, these are commonly referred to in law-enforcement jargon as dialed number recorders, or DNR. Standards governing the use of these devices are derived from the 1986 Electronic Communications Privacy Act. The Patriot Act has also expanded permissible uses of traditional pen register and trap-and-trace devices so that they may be used to monitor not only telephonic communications, but also Internet communications.
Another form of electronic surveillance is the “roving tap.” Court orders permitting roving taps do not require specific telephone lines or electronic mail accounts to be named; they allow the tapping of any phone line, cell phone, or Internet account that the targeted suspects use. Unlike the traditional trap-and-trace and pen register, which numbers thousands of uses each year, roving taps are relatively rare with only six such taps approved during all of 2003.
Although much of the Patriot Act was reauthorized when the USA Freedom Act was enacted in 2015, the Freedom Act bans the bulk collection of US phone records and Internet metadata, and places limits on how much and what kind of data the government can collect.
In the 2020s, the government has used social media as a source of information. The federal agencies that routinely monitor social media platforms include the FBI, the Department of Homeland Security, and the State Department. These agencies monitor social media platforms as a source of information for investigations, to identify threats, and to screen travelers. While government surveillance of social media continues to grow, it is mostly unregulated. Civil rights and civil liberties groups have expressed concerns that this type of monitoring may infringe upon people's right to freedoms such as free speech.
Bibliography
Adams, James A., and Daniel D. Blinka. Electronic Surveillance: Commentaries and Statutes. Notre Dame, Ind.: National Institute for Trial Advocacy, 2003.
Levinson-Waldman, Rachel, Harsha Panduranga and Faiza Patel. "Social Media Surveillance by the US Government." Brennan Center for Justice, 7 Jan. 2022, www.brennancenter.org/our-work/research-reports/social-media-surveillance-us-government. Accessed 26 June 2024.
McGrath, J. E. Loving Big Brother: Performance, Privacy and Surveillance Space. New York: Routledge, 2004.
Monmonier, M. S. Spying with Maps: Surveillance Technologies and the Future of Privacy. Chicago: University of Chicago Press, 2002.
Stevens, Gina Marie, and Charles Doyle. Privacy: Wiretapping and Electronic Eavesdropping. Huntington, N.Y.: Nova Science, 2002.
Taitz, Sarah. "Five Things to Know About National Security Agency (NSA) Mass Surveillance and the Coming Fight in Congress." ACLU, 11 Apr. 2023, www.aclu.org/news/national-security/five-things-to-know-about-nsa-mass-surveillance-and-the-coming-fight-in-congress. Accessed 26 June 2024.
“USA Freedom Act: What’s In, What’s Out.” Washington Post. Washington Post, 2 June 2015. Web. 26 May. 2016.