Electronic Surveillance

Observing or listening to persons, places, or activities—usually in a secretive or unobtrusive manner—with the aid of electronic devices such as cameras, microphones, tape recorders, or wire taps. The objective of electronic surveillance when used in law enforcement is to gather evidence of a crime or to accumulate intelligence about suspected criminal activity. Corporations use electronic surveillance to maintain the security of their buildings and grounds or to gather information about competitors. Electronic surveillance permeates almost every aspect of life in the United States. In the public sector, the president, Congress, judiciary, military, and law enforcement all use some form of this technology. In the private sector, business competitors, convenience stores, shopping centers, apartment buildings, parking facilities, hospitals, banks, employers, and spouses have employed various methods of electronic eavesdropping. Litigation has even arisen from covert surveillance of restrooms.

Three types of electronic surveillance are most prevalent: wire tapping, bugging, and videotaping. Wire tapping intercepts telephone calls and telegraph messages by physically penetrating the wire circuitry. Someone must actually "tap" into telephone or telegraph wires to accomplish this type of surveillance. Bugging is accomplished without the aid of telephone wires, usually by placing a small microphone or other listening device in one location to transmit conversations to a nearby receiver and recorder. Video surveillance is performed by conspicuous or hidden cameras that transmit and record visual images that may be watched simultaneously or reviewed later on tape.

Electronic eavesdropping serves several purposes: (1) enhancement of security for persons and property; (2) detection and prevention of criminal, wrongful, or impermissible activity; and (3) interception, protection, or appropriation of valuable, useful, scandalous, embarrassing, and discrediting information. The law attempts to strike a balance between the need for electronic surveillance and the privacy interests of those affected.

Constitutional Law

The Fourth Amendment to the U.S. Constitution protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." It further provides that "no Warrants shall issue, but upon Probable Cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Electronic surveillance did not exist in 1789, when this amendment was written and was probably not contemplated by the Founding Fathers. But the colonists were familiar with unbridled methods of law enforcement. British officials conducted warrantless searches and seizures, and made arrests based on mere suspicion. Even when a search was made pursuant to a warrant, the warrant was often general in nature, vesting British officials with absolute discretion to determine the scope and duration of the search.

The Fourth Amendment was carefully drafted in response to this colonial experience. It provides two basic protections. First, it prohibits government officials, or persons acting under color of law, from performing unreasonable searches and seizures. Second, it forbids magistrates from issuing warrants that are not supported by probable cause or that fail to specify the persons, places, and things subject to search and seizure. The Supreme Court has held that searches performed without a warrant are presumptively unreasonable. When a search is presumptively unreasonable, evidence seized by the police during the search will not be admissible against the defendant at trial unless the prosecution demonstrates that the evidence seized falls within an exception to the warrant requirement such as the "good faith" exception.

The Supreme Court first considered the Fourth Amendment implications of electronic surveillance in olmstead v. united states, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928). In Olmstead, federal agents intercepted incriminating conversations by tapping the telephone wires outside the defendant's home without a warrant or his consent. In a 5 to 4 decision, the Court ruled that electronic eavesdropping involves neither a search nor a seizure, within the meaning of the Fourth Amendment. The Court reasoned that no search took place in Olmstead because the government intercepted the conversations without entering the defendant's home or office and thus without examining any "place." No seizure occurred because the intercepted conversations were not the sort of tangible "things" the Court believed were protected by the Fourth Amendment. In a prescient dissent, Justice louis d. brandeis argued that nonconsensual, warrantless eavesdropping offends Fourth Amendment privacy interests without regard to manner or place of surveillance.

The Supreme Court whittled away at the Olmstead holding for the next forty years, finally overruling it in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). In Katz, the police attached a listening device to the outside of a public telephone booth where the defendant was later recorded making inculpatory statements. The Court declared this type of warrantless surveillance unconstitutional. The Court emphasized that the Fourth Amendment protects persons, not places, and held that the amendment's protections extend to any place where an individual maintains a reasonable expectation of privacy. The Court determined that in Katz, the defendant maintained a reasonable expectation of privacy in both the particular conversation he had and the public telephone booth where it took place. Katz made government electronic surveillance, and legislation authorizing it, subject to the strictures of the Fourth Amendment.

As technology continues to develop, the Court has had to consider new methods of investigation by law enforcement officials. In Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2035, 150 L. Ed. 2d 94 (2001), the Court considered the constitutionality of the use of a thermal imaging device during surveillance of a home. An agent of the U.S. Interior Department suspected that the defendant, Danny Kyllo, was growing marijuana in his home. The officer knew that indoor marijuana growth requires use of high-intensity lamps, and the officer sought to discover the presence of these lamps through the use of the thermal imaging device. The device demonstrated that the defendant was likely using a high-intensity lamp, and the agent then sought a Search Warrant from a federal magistrate judge. A subsequent search of the home discovered marijuana.

The Supreme Court, per Justice Antonin Scalia, found that the use of the device to survey the inside of the defendants home constituted a "search" for Fourth Amendment purposes. The government argued that because the device only sensed heat emanating from the exterior of the house, use of the device was not an unlawful intrusion on the defendant. Scalia disagreed, noting that Katz forbids a mechanical application of the Fourth Amendment that focuses only upon the physical capability of a surveillance device. He noted, "Reversing that approach [in Katz] would leave the homeowner at the mercy of advancing technology—including imaging technology that could discern all human activity in the home." Because the agent had not obtained a warrant until after he conducted a search of Kyllo's home, the search violated Kyllo's Fourth Amendment rights.

Legislation

One year after Katz, Congress enacted the Omnibus Crime Control and Safe Streets Act of 1968 (Pub. L. 90-351, June 19, 1968, 82 Stat. 197; Pub. L. 90-462, § 1, Aug. 8, 1968, 82 Stat. 638; Pub. L. 90-618, Title III, Oct. 22, 1968, 82 Stat. 1236). Title III of the act governs the interception of wire and oral communications in both the public and private sectors. Electronic surveillance is used in the public sector as a tool of criminal investigation by law enforcement, and in the private sector as a means to obtain or protect valuable or discrediting information. Many of the fifty states have enacted legislation similar to Title III.

Public Sector Title III outlines detailed procedures the federal government must follow before conducting electronic surveillance. Pursuant to authorization by the attorney general or a specially designated assistant, federal law enforcement agents must make a sworn written application to a federal judge specifically describing the location where the communications will be intercepted, the reasons for the interception, the duration of the surveillance, and the identity of any persons whose conversations will be monitored. The application must also explain whether less intrusive investigative techniques have been tried. Electronic surveillance may not be used as a first step in criminal investigation when less intrusive means are likely to succeed without creating a significant danger to law enforcement personnel or the public.

A federal judge must then review the surveillance application to ensure that it satisfies each of the statutory requirements and establishes probable cause. The surveillance must be executed as soon as practicable, terminate after fulfillment of its objective, and in no event last longer than thirty days without further judicial approval. Federal agents must also take steps to minimize the interception of communications not relevant to the investigation. Evidence obtained in violation of Title III or of the Fourth Amendment is generally not admissible in court and may give rise to civil and criminal penalties.

Courts have interpreted Title III to cover information intercepted from satellite unscrambling devices, cellular telephones, and pagers. However, Title III does not cover information intercepted from pen registers, which record the telephone numbers of outgoing calls, or caller identification, which displays the telephone numbers of incoming calls, because neither intercepts conversations of any sort. Although Title III does not regulate photographic interception, some federal courts have used it as a guide when reviewing the constitutionality of video surveillance.

The procedural requirements of Title III are not without exception. Where there are exigent circumstances involving conspiratorial activities that threaten national security, Title III permits federal law enforcement agents to conduct electronic surveillance for up to forty-eight hours before seeking judicial approval. At one time, many observers believed that Title III also sanctions warrantless electronic surveillance by the Executive Branch for national security purposes. In 1972, the Supreme Court ruled to the contrary, holding that presidential surveillance of domestic organizations suspected of national security breaches during the Nixon administration had to comply with the Fourth Amendment's warrant requirement (United States v. United States District Court for Eastern District of Michigan, Southern Division, 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752).

Congress attempted to clarify the murky area of covert presidential surveillance by passing the Foreign Intelligence Surveillance Act of 1978 (FISA), Pub. L. 95-511, Oct. 25, 1978, 92 Stat. 1783. FISA regulates the federal government's surveillance of foreign officials, emissaries, and agents within the United States, but has no application to such surveillance abroad. Similar to Title III, FISA sets forth specific application procedures that a federal judge must review for probable cause before any form of eavesdropping may commence. Unlike Title III, FISA has been interpreted to govern video surveillance as well.

Private Sector Electronic surveillance is most common in two areas of the private sector: employment and domestic relations. In addition to legislation in many of the fifty states, Title III governs these areas as well. It prohibits any person from intentionally using or disclosing information knowingly intercepted by electronic surveillance, without the consent of the interested parties. The intent element may be satisfied if the person knew or had reason to know that the information intercepted or disclosed was acquired by electronic surveillance; it is not satisfied if the person inadvertently intercepted or disclosed such information.

Sixty-eight percent of all reported wiretapping involves Divorce cases and custody battles. Spouses, attempting to obtain embarrassing or discrediting information against each other, have planted video recording and listening devices throughout the marital home. Spousal surveillance most commonly involves telephone taps and bedroom bugs but has also included videotaping of activities as innocuous as grocery shopping and movie-going. The fruits of interspousal electronic eavesdropping have been offered in court to reveal extramarital affairs, illegal drug use, and other criminal or deviant activity.

If interspousal surveillance is the most pervasive form of electronic eavesdropping, employer surveillance is the fastest growing. Employers videotape employee movement throughout the workplace, search employee computer files, and monitor employee phone calls. Reasons for such surveillance range from deterring theft and evaluating performance to protecting trade secrets.

The advent of electronic mail (E-Mail) has provided employers with a new playground for mechanical snooping. By the year 2000, 40 million people were expected to send 60 billion pieces of e-mail correspondence annually. As with telephone calls, employees may send personal messages while they are at work. Although Congress considered the surveillance of workplace e-mail when it broadened Title III protections in 1986, no federal court as of 2003 had confronted the issue. However, courts have permitted employers to eavesdrop surreptitiously on employee phone calls for legitimate and significant business purposes, and courts may also apply this rationale to employer surveillance of e-mail.

Common Law

State Common Law provides a third avenue of legal protection against electronic surveillance. Throughout the twentieth century, common law increasingly recognized a sphere of private activity beyond public consumption. The sometimes-amorphous right to privacy consists of three discrete interests: secrecy, seclusion, and autonomy. The right to secrecy prevents nonconsensual public disclosure of valuable, confidential, embarrassing, or discrediting information. The right to seclusion creates a realm of personal solitude upon which society may not trammel. The right to autonomy represents the freedom to determine one's own fate unfettered by polemical publicity.

Common law protects these distinct privacy interests by imposing civil liability upon anyone who publicizes private facts; besmirches some-one's reputation; profits from another's name, likeness, or ideas; or otherwise intrudes upon an individual's private affairs. Common-law protection of privacy interests is broader than Title III because it is not limited to wiretapping and bugging but extends to photographic and video surveillance as well. Thus, video surveillance of restrooms, locker rooms, and dressing rooms may give rise to a claim for invasion of privacy under common law but not under Title III.

At the same time, common law is narrower than Title III because liability is only established by proof that the published information was sufficiently private to cause outrage, mental suffering, shame, or humiliation in a person of ordinary sensibilities. Title III creates liability for any nonconsensual, intentional disclosure of electronically intercepted information, thus establishing a much lower threshold. For example, a newspaper would not be liable under the common-law invasion-of-privacy doctrine for accurately reporting that someone had engaged in criminal conduct. However, the nonconsensual, electronic interception of such information would give rise to liability under Title III.

Cross-references

Criminal Law; Criminal Procedure; Exclusionary Rule; Search Warrant.

electronic surveillance