Getting a Court Order Authorizing a Wiretap

It Isn't Easy

The requirements for getting a wiretap order from a judge are very strict. The Wiretap Act (and similar state statutes) requires law enforcement to submit a lengthy application that contains a full and complete statement of facts about (1) the crime that has been, is being, or is about to be committed and (2) the place, like your house or office, and/or the communications facilities, like those of your phone company or ISP, from which the communications are to be intercepted. The government must also submit a particular description of (3) the communications sought to be intercepted and (4) the identity of the persons committing the crime (if known) and of the persons whose communications are to be intercepted. Finally, the government must offer 5) a full and complete statement of whether other investigative procedures have been tried and have failed or why they appear unlikely to succeed or are too dangerous, (6) a full and complete statement of the period of time for which the interception is to be maintained, and (7) a full and complete statement about all previous wiretap applications concerning any of the same persons, facilities, or places.

The court can then issue the wiretap order only if it finds probable cause to believe that (1) a person is committing an enumerated offense (one of the crimes listed in the Wiretap Act); (2) communications concerning that crime will be obtained through the interception; and (3) the facilities from which the communications are to be intercepted are being used in connection with the commission of the offense. The court must also find that normal investigative techniques have failed, appear unlikely to succeed, or would be too dangerous.

The wiretap order, if issued, will almost always require the cooperation of some other person for it to be carried out. For example, the police can make your landlord let them into your apartment to install a bug, or, more often, force your ISP or phone company to help them intercept your phone or Internet communications. The wiretap order will include a "gag order" prohibiting anyone who cooperated with the police from telling you — or anyone else — about the wiretap.

It's important to note that when it comes to tapping your Internet or phone communications, third parties like your ISP or your phone company can act as an important check on police abuse. In general, the police need their cooperation, and most will not cooperate unless there is a valid wiretap order requiring them to (otherwise, they could be violating the law themselves). However, as AT&T and other companies' cooperation in the NSA's illegal wiretapping shows, these companies can never be a perfect check against government abuse, particularly when the government cites national security as its goal.

Although law enforcement can intercept your communications without your knowledge, they generally have to tell you about it when they are done. A wiretap order initially lasts for 30 days, and investigators can obtain additional 30-day renewals from the court if they need more time. But after the interception is completed and the wiretap order expires, an inventory must be issued to the person(s) named in the wiretap order and, as the judge may require, to other persons whose communications were intercepted.

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