Wiretapping Law Protections

Законы о защите от прослушивания на линиях связи

Wiretapping Law Protects "Oral," "Wire," and "Electronic" Communications Against "Interception"

Before 1967, the Fourth Amendment didn't require police to get a warrant to tap conversations occurring over phone company lines. But that year, in two key decisions (including the Katz case), the Supreme Court made clear that eavesdropping — bugging private conversations or wiretapping phone lines — counted as a search that required a warrant. Congress and the states took the hint and passed updated laws reflecting the court's decision and providing procedures for getting a warrant for eavesdropping.

The federal wiretap statute, originally passed in 1968 and sometimes called "Title III" or the Wiretap Act, requires the police to get a wiretap order — often called a "super-warrant" because it is even harder to get than a regular search warrant — before they monitor or record your communications. One reason the Fourth Amendment and the statute give us more protection against government eavesdropping than against physical searches is because eavesdropping violates not only the targets' privacy, but the privacy of every other person that they communicate with.

The Supreme Court has also said that since eavesdropping violates so many individuals' privacy, the police should only be allowed to bug or wiretap when investigating very serious crimes. So, the Wiretap Act contains enumerated offenses — that is, a list of crimes — that are the only ones that can be investigated with a wiretap order. Unfortunately, Congress has added so many crimes to that list in the past 30 years that now practically any federal felony can justify a wiretap order.

The Wiretap Act requires the police to get a wiretap order whenever they want to "intercept" an "oral communication," an "electronic communication," or a "wire communication." Interception of those communications is commonly called electronic surveillance.

An oral communication is your typical face-to-face, in-person talking. A communication qualifies as an oral communication that is protected by the statute (and the Fourth Amendment) if it is uttered when you have a reasonable expectation that your conversation won't be recorded. So, if the police want to install a microphone or a "bug" in your house or office (or stick one outside of a closed phone booth, like in the Katz case), they have to get a wiretap order. The government may also attempt to use your own microphones against you — for example, by obtaining your phone company's cooperation to turn on your cell phone's microphone and eavesdrop on nearby conversations.

A wire communication is any voice communication that is transmitted, whether over the phone company's wires, a cellular network, or the Internet. You don't need to have a reasonable expectation of privacy for the statute to protect you, although radio broadcasts and other communications that can be received by the public are not protected. If the government wants to tap any of your phone calls — landline, cellphone, or Internet-based — it has to get a wiretap order.

An electronic communication is any transmitted communication that isn't a voice communication. So, that includes all of your non-voice Internet and cellular phone activities like email, instant messaging, texting and websurfing. It also covers faxes and messages sent with digital pagers. Like with wire communications, you don't need to have a reasonable expectation of privacy in your electronic communications for them to be protected by the statute.

An interception is any acquisition of the contents of any oral, wire, or electronic communication using any mechanical or electronic device — for example, using a microphone or a tape recorder to intercept your oral communications, or using computer software or hardware to monitor your Internet and phone communications. Wiretap law does not protect you from government eavesdroppers that are just using their ears.

Although the government may get a super-warrant to "intercept" your communications, it is not allowed to prevent your communications from occurring. For example, the government can't prevent your calls from being connected, block your emails and their attachments, or otherwise interfere with your communications based on an intercept order. In fact, if their goal is to gather intelligence on you by tapping your communications, it will not be in their best interest to interfere in your communications and possibly tip you off to their surveillance, which might prompt you to use another communications method that may be more difficult to tap.

According to the Wiretap Act, it's a crime for anyone that is not a party to a communication — anyone that isn't one of the people talking, listening, writing, reading, or otherwise participating in the communication — to intercept the communication, unless at least one of the parties to the communication has previously consented to (agreed to) the interception. Many state wiretap laws require all parties to consent, but those laws control state and local police, not the feds. If the police want to intercept an oral, wire, or electronic communication to which they are not a party and for which they have no consent, they have to get a wiretap order. Of course, an undercover police officer or informant that is talking to you while wearing a wire is a party to the conversation and has consented to the interception.

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