The Nature and Scope of Governmental Electronic Surveillance Activity

The rapid changes in telecommunications technology have been accompanied by a growth in the potential intrusiveness of electronic surveillance and a steady increase in government surveillance activity. While the wiretap laws establish important protections -- most notably requiring for interception of call content a judicial order based on a finding of probable cause -- in practice state and federal judges rarely deny applications for authority to conduct electronic surveillance.

Every spring, the Administrative Office of the United States Courts publishes statistics on wiretap activity of federal, state and local police in the prior year. The report covering 2000 is available online: http://www.uscourts.gov/wiretap00/contents.html. A useful summary, covering the years 1999 - 2000 and showing the increase in the use of wiretaps, is provided by Table 7, which is at http://www.uscourts.gov/wiretap00/table700.pdf.

Highlights of the 2000 Report on Wiretaps in Criminal Cases

Number of wiretap requests approved in 2000: 1,190
Number of wiretap requests denied: 0
Average number of conversations intercepted per wiretap: 1,769
Average number of people intercepted per wiretap: 196
Approximate number of conversations intercepted: 2.1 million
Longest running wiretap: 308 days
Percentage of intercepted conversations deemed "incriminating": 23
Average cost of wiretap: $54,829
Cost of most expensive wiretap: $1,082,990

Recent Trends

The number of approved wiretaps dropped slightly (5%) in 2000. In 1999, a total of 1,350 applications for authorization to conduct wiretaps were submitted to federal and state judges, who approved each and every request. In 1998, 1,331 were submitted, and all but two were approved. In 1997, 1,186 applications were submitted and all were approved. In 1996, 1,150 were submitted and all but one were approved. Prior to 1996, the last time that any application, state or federal, for electronic surveillance was denied was 1988, when 2 out of 738 applications were denied. Meanwhile, from 1990 through 2000, 12,039 applications were approved. From 1990 to 2000, wiretap authorizations increased 36%.

These figures do not include consensual wiretaps, bugs and body wires, where a crime victim, an informant or an undercover agent consents to the recording of a conversation to which he or she is a party. Such interceptions, a staple of modern law enforcement practice, usually are not reflected in the statistics since, under federal law and the law of most states, they do not require court approval.

Foreign Intelligence Surveillance

Nor does the figure of 1,190 approved wiretaps surveillances for 2000 cover the separate set of authorizations issued by a select group of federal judges, operating under the Foreign Intelligence Surveillance Act (FISA), who yearly issue nearly 1,000 interception and physical search orders in foreign counterintelligence and international terrorism cases (1,012 in 2000) (It is hard to tell, given the classified nature of the court's proceedings, how many wiretaps these orders entail. Some of the orders are good for one year, while some require reauthorization every ninety days, so some targets are the subject of four orders in a year. On the other hand, one order may authorize multiple taps. Plus, starting in 1996, the figures for the FISA court included physical searches ("black bag jobs") which are probably relatively few in number.) In its entire existence, since 1978, the FISA court has only twice (once in 1980 and once in 1997) refused a government request for electronic surveillance authority.

Real-time Collection of Call-Identifying Information

The figures on court ordered wiretaps (interceptions of the content of conversations) also do not include orders issued on a lower standard for surveillance of transactional data through pen registers and trap and trace devices. In 1996, law enforcement agencies in the U.S. Department of Justice alone obtained a total of 4569 original pen register or trap and trace orders, authorizing contemporaneous interception of dialed number information on the telephone facilities of 10,520 persons. This compares with 4972 orders in 1995, covering the telephone facilities of 11,801 persons. There are never any denials of pen register and trap and trace requests, since the law provides that the judge "shall" issue the order whenever an attorney for the government certifies that the information likely to be obtained is "relevant" to an ongoing criminal investigation. These statistics cover only the law enforcement agencies of the U.S. Department of Justice. They do not cover other federal law enforcement agencies or state and local police. (In 1994 Congressional testimony, the FBI Director estimated that the total number of pen register orders in 1992 was 9,000.)

Subpoenas for Call-Identifying Information

Finally, a full picture of government surveillance activity must include cases in which law enforcement uses a subpoena to obtain stored transactional records relating to local or long distance calls. Companies collect and store such information for billing and other business purposes, and law enforcement agencies routinely request them in criminal cases, usually with a grand jury subpoena. (In foreign counterintelligence and international terrorism cases, the FBI can obtain such information without a court order.) Data on these cases are not assembled by the government. However, the scope of law enforcement activity is suggested by data submitted by some telephone service providers in response to a congressional inquiry in 1993. Bell Atlantic, for example, indicated that for the years 1989 through 1992, it had responded to 25,453 subpoenas or court orders for toll billing records of 213,821 of its customers. NYNEX reported that it had processed 25,510 subpoenas covering an unrecorded number of customers in 1992 alone.

Legal Protections

Against this background of growing use of electronic surveillance, it must be noted that the wiretap laws include several important protections against abuse. Illegally seized evidence cannot be used in court. The exclusionary rule in the Fourth Amendment to the Constitution is bolstered by a statutory exclusionary rule in the federal wiretap statute, making evidence obtained from illegal wiretaps useless in court. (The Clinton Administration proposed weakening the statutory exclusionary rule, to make the introduction of illegal wiretap evidence easier.)

However, it must also be said that judges tend to give law enforcement agencies broad latitude, as reflected in judicial decisions approving law enforcement conduct when defendants seek to suppress wiretap evidence at trial. Between 1985 and 1994, judges nationwide granted 138 suppression motions while denying 3060 for a 4.3% suppression rate.

One of the most significant areas in which the courts have expansively interpreted the law concerns the question of necessity. The wiretap law states that the court cannot approve an interception request unless it finds that "normal investigative procedures have been tried and have filed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." Law enforcement officials regularly contend, as FBI Director Freeh did in 1994 testimony, that this provision of the law permits electronic surveillance "only when all other investigative techniques will not work or are too dangerous" (emphasis added). In practice, the courts have interpreted this provision to require only that law enforcement try some other techniques, not that they exhaust all reasonably available methods of obtaining the necessary evidence.

Courts have also been reluctant to enforce the minimization requirements of the law, which require law enforcement agents to screen the calls and turn off their recording devices whenever the conversation appears to relate to irrelevant, non-incriminating aspects of the target's life. Judges rarely rule that a wiretap was illegally carried out for failure to minimize.

May 8, 2001