Note: for index of full report see: http://jya.com/nrcindex.htm

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                              D

          An Overview of Electronic Surveillance: 
                 History and Current Status 




    D.1 THE LEGAL FRAMEWORK FOR DOMESTIC LAW ENFORCEMENT
                        SURVEILLANCE

  D.1.1 The General Prohibition on Electronic Surveillance


   The U.S. Code, in Section 2511 of Title 18 and Sections
1809-1810 of Title 50, provides specific criminal and civil
penalties for individuals (law enforcement officials and
private citizens alike) who conduct electronic or wire
surveillance of communications (defined below) in a manner
that is not legally authorized.(1) Legal authorization for
such surveillance is provided for specific circumstances in
law enforcement and foreign intelligence collection as 
described below.

__________

   (1)  18 U.S.C. Section 2511(4), (5); 50 U.S.C. Section
1809(c); and 50 U.S.C. Section 1810

____________________________________________________________


      D.1.2 Title III of the Omnibus Crime Control and 
                Safe Streets Act of 1968 and 
    the Electronic Communications Privacy Act of 1986(2)


   Congress established the statutory authority for law
enforcement interception of communications in Title III of the
Omnibus Crime Control and Safe Streets Act of 1968 (Title
III). In 1986, the Electronic Communications Privacy Act
(ECPA) made significant
additions and amendments. Title III, as amended by ECPA,
defines three categories of communications -- oral, wire, and
electronic -- and provides varying degrees of legal protection
against their unauthorized interception. Oral communications
are spoken words carried by sound waves through the air.
Electronic surveillance of oral communications is performed
with listening devices, known as bugs. Wire communications are
human speech carried over a wire or wire-like cable, including
optical fiber. They may be intercepted with a wiretap.
(Interception of one end of a conversation by bugging the room
in which a telephone is placed is a case of oral
interception.) Electronic communications are defined--with
minor exceptions such as tone-only pagers -- as every other
form of electronically transmitted communication, including
various forms of data, text, audio, and video. The legislative
history of ECPA specifically mentions electronic mail, paging
systems, bulletin board systems, and computer-to-computer
communications, among other technologies the act was intended
to address.(3)

   ECPA defines radio communications, including voice
conversations, as electronic, with the exception that voice
conversations carried in part over radio and in part through
wires or switches (such as cellular telephone calls) are
treated as wire communications.(4) Some radio communications
may be intercepted without penalty. Courts have found, and
ECPA affirms, that if a radio transmission is readily
accessible to anyone with an appropriate receiver, it does not
meet the Fourth Amendment test of a "reasonable expectation of
privacy" and is therefore unprotected.(5) However, ECPA
specifies several forms of radio communication that are not
"readily accessible" and therefore are protected from
interception. These include, among others: encrypted or
scrambled transmissions (digital modulation alone does not
meet this standard, unless the protocols have been
deliberately concealed from the public to maintain privacy);
common-carrier paging services (except tone-only services);
and private microwave services. In practice, unprotected radio
transmissions generally relate to radio broadcasting,
dispatching, public-safety radio (police, fire, etc.), amateur
radio, citizens band, and similar services. In the radio arena
and others, the advance of communications technology,
including encryption and decryption, and the development of
new services will inevitably create the need for further
inteRpretation of Title III and the ECPA by the courts and/or
revision of the federal statutes.(6)

   Like all searches and seizures in circumstances where a
person normally has a reasonable expectation of privacy,
electronic surveillance requires a warrant granted by a
judge.(7) To obtain a physical search warrant (e.g., to search
a person's home), officials must provide certain information.
This includes a statement of facts demonstrating probable
cause to believe a crime has been or will be committed; the
identity of the person or place to be searched; and a
particular description of the object of the search. Evidence
obtained in violation of these requirements may be challenged
by the defendant in a trial and may be subject to suppression.
Violations leading to suppression may include errors or
omissions in the application for a warrant; warrants that
should not have been issued, for example, for lack of probable
cause; and failure to execute the search in accordance with
the terms of the warrant.(8)

   In Title III, Congress added significant, new requirements
specific to the electronic interception of oral and wire
communications. These additional requirements, which are
discussed below, set a higher standard than the physical
search and seizure standard of the Fourth Amendment. They are
enforced by criminal and civil penalties, as well as by a
statutory exclusionary rule, which states that violations of
these requirements may lead to suppression of evidence in a
later trial. This suppression may throw out evidence from
electronic surveillance that would ordinarily meet a Fourth
Amendment test.(9)

   By law, only certain, serious felonies may be investigated
with Title III surveillance of oral and wire communications.
These include murder, kidnapping, child molestation, organized
crime, narcotics offenses, and crimes against national
security, among others.(l0) Before performing electronic
surveillance, investigators must obtain a special type of
warrant called an "intercept order".(11) To obtain an
intercept order, an applicant must show that other
investigative methods, such as informants or visual
surveillance, have been tried unsuccessfully or would be
dangerous or unlikely to obtain the desired evidence. The
applicant must also provide specific information, such as the
identity of the requesting officer; facts of the case showing
probable cause; period of time that surveillance will be in
effect (up to 30 days, with extensions requiring another
application); surveillance procedures to be followed,
including plans for keeping the interception of irrelevant
communications to a minimum; history of previous intercept
applications concerning the same person or location; and
results of the ongoing interception, if the application is for
an extension of an order.(12) These requirements are somewhat
flexible; not every impropriety in a surveillance results in
suppression of all the evidence gathered. Numerous court
decisions have found, for example, that incriminating
conversations involving persons or crimes other than those
identified in the warrant are admissible in a trial, as long
as the warrant was valid for the purpose originally
intended.(13)

   Title III requires that intercept orders be requested and
granted by higher-ranking officers and judges than warrants
for physical searches. In federal investigations, applications
must be authorized by a Department of Justice official at or
above the level of Deputy Assistant Attorney General. Only
federal district courts and courts of appeals may issue orders
(in contrast to search warrants, which may also be issued by
federal magistrates). State electronic surveillance laws must
designate responsible state officials and courts of comparable
stature. In addition to the Title III provisions, the Federal
Bureau of Investigation (FBI) and most state enforcement
agencies have detailed, internal approval procedures that
officers must follow before they (or rather, a U.S. attorney
on their behalf) may approach a court with an intercept
request.(l4)

   Upon receipt of a court order, communications service
providers are required by law to assist law enforcement
officials. The service provider must furnish information,
facilities, and technical assistance necessary to accomplish
the interception "unobtrusively and with a minimum of
interference" with the subject's services.(15) The provider is
entitled to reimbursement of expenses and is immune from any
civil or criminal penalties for assisting in court-ordered
surveillance.

   One of the more intrusive aspects of electronic
surveillance, in comparison to physical search and seizure, is
the fact that the invasion of privacy continues over a period
of time and is likely to intercept many communications that
are irrelevant to the investigation. To restrict this invasion
of privacy, Title III requires law enforcement officials to
perform a procedure known as minimization. In the context of
a wiretap or bug, minimization requires real-time monitoring
of the surveillance device. When conversations are intercepted
concerning irrelevant subjects, such as family gossip,
monitoring officers must turn off the device. At intervals
thereafter, they must turn on the device to spot-check for
relevant communications, which may then be recorded.
Minimization procedures must be described in the application
for the intercept order. Failure to minimize properly may
result in suppression of evidence.(16)

   In certain cases, minimization may be postponed.
Foreign-language conversations may be recorded in their
entirety and minimized later, when a translator is available.
(17) Similar guidelines would presumably apply to encrypted
communications--they would be minimized after decryption. ECPA
established that electronic communications, like oral and wire
communications, are subject to minimization requirements;
however, some differences in the procedures apply. For
example, a text communication such as an electronic mail
message clearly cannot be "turned off and on" during
interception, since it is read on a full computer screen.
Minimization in this case would consist of deleting irrelevant
sections of text and retaining only the relevant portions for
further use.(18)

   Following the completion of an interception, the minimized
tapes of the surveillance must be sealed and delivered to the
custody of the court. This provision of Title III is intended
to ensure that evidence used in a subsequent trial is
authentic and has not been altered. After the intercept order
terminates, the issuing judge must notify the persons named in
the order within 90 days that they have been subject to
surveillance, unless good cause is shown for postponement.(19)
For evidence to be used in a trial, the defendant must receive
an inventory listing the date of the intercept order, period
of surveillance, and whether any communications were
intercepted. The defendant may move to receive transcripts of
the interceptions, as well as the underlying application and
court order. Failure to provide notice and inventory may serve
as a basis for suppression of evidence if the defendant can
demonstrate having been prejudiced as a result.(20)

   The procedures discussed above apply to oral and wire
intercepts (bugs and wiretaps). ECPA applied most of the same
procedures and restrictions to surveillance of electronic
communications. It also extended Title III criminal and civil
penalties for unlawful interception to electronic
communications.(21) However, it did not set the same standard
of protection for these communications. For example, any
federal felony may be investigated through electronic
interception, and a federal attorney of any rank may request
an electronic communications intercept order.(22)

   In addition, the statutory exclusionary rule of Title III
for oral and wire communications does not apply to electronic
communications. Evidence may be subject to suppression
according to Fourth Amendment standards (such as probable
cause), but ECPA expressly omits electronic communications
from the provision that evidence obtained outside Title III
procedures is suppressible in court.(23) As in the case of
oral and wire surveillance, however, state statutes must apply
protection at least as stringent as the federal statute. The
states of Florida and Kansas impose the sarne requirements on
electronic communications intercepts as on oral and wire
intercepts.(24)

   Title III, when first enacted, regulated only the
interception of contents of communications. However, ECPA
added new regulations on traffic analysis--the use of devices
to collect information about origins and destinations of
cornmunications (particularly, telephone calls) without
intercepting their contents.(25) Traffic analysis is performed
with the aid of pen registers, which record the numbers dialed
from a target telephone. and trap-and-trace devices, which
identify telephone numbers from which calls are placed to the
target telephone.(26) ECPA provides that use of these devices
is a criminal offense except when performed by a law
enforcement official with a court order; by a communication
service provider for specified business purposes; or with the
consent of the service user.

   With respect to law enforcement, ECPA codified the existing
judicial record on traffic arlalysis. Because the Supreme
Court has ruled that traffic analysis information is not
protected by the Fourth Amendment, evidence obtained
improperly or without a warrant is not suppressible in a
trial.(27) Under ECPA, a pen register or trap-and-trace order
may be requested by any federal attorney and granted by any
federal district judge or magistrate. States may designate
comparable authorities for requesting and approving orders. If
the request meets the statutory requirements, the court must
grant the order. (By contrast, interception orders are subject
to the judge's discretion.) The application need not present
a statement of facts showing probable cause, but merely the
applicant's certification that probable cause exists. In
practice, one purpose of obtaining an order is to compel the
cooperation of communications service providers and to protect
those providers from civil and criminal liability.(28)

   ECPA also governs access to stored wire and electronic
communications, such as backup copies of voice mail and
electronic mail messages.(29) ECPA provides criminal and civil
penalties for accessing and obtaining or altering stored
communications without permission of the communications
service provider or subscriber. With a search warrant (for
which the requirements are much less stringent than for a
Title III intercept order), law enforcement authorities may
require a service provider to divulge stored communications
without prior notice to the service subscriber or customer.
The details of ECPA's applicability to electronic mail and
similar communications are somewhat controversial and have yet
to be tested extensively in court.(30) For example, ECPA may
make it possible for investigators to obtain, with a search
warrant, electronic mail messages in temporary storage at an
on-line service that the customer has not yet downloaded or
deleted at the time of the investigation. However, requiring
the service provider to copy and divulge all of the electronic
mail addressed to a subscriber over a period of time likely
involves a Title III intercept order.(31)

   Tables D.1 and D.2 provide quantitative data on the scope
and scale of electronic surveillance in the United States in
recent years.

----------

   (1)  18 U.S.C. Section 2511(4), (5); 50 U.S.C. Section
1809(c); and 50 U.S.C. Section 1810

   (2)  The discussion in this subsection summarizes the
relevant provisions. A more detailed treatment is given in
Clifford S. Fishman, *Wiretapping and Eavesdropping*, The
Lawyers Cooperative Publishing Co., Rochester, N.Y., 1978; and
Clifford S. Fishman, *Wiretapping and Eavesdropping:
Cumulative Supplement*, Clark Boardman Callaghan, Deerfield,
Ill., November 1994. See also Donald P. Delaney, Dorothy E.
Denning, John Kaye, and Alan R. McDonald, "Wiretap Laws and
Procedures: What Happens When the U.S. Government Taps a
Line," September 1993, available via Internet from
http://snyside.sunnyside.com/cpsr/privacy/communications/
wiretap/denning_wiretap_procedure paper.txt and other sites.

   (3)  Fishman, *Cumulative Supplement*, 1994, sections
7.31-7.49.

   (4)  Fishman, *Cumulative Supplement*, 1994, sections 7.4,
7.5, 7.21-7.28. See also James G. Carr, *The Law of Electronic
Surveillance*, Clark Boardman Callaghan, Deerfield, Ill.,
September 1994, section 3.2.

   (5)  By similar reasoning, messages are unprotected if
posted in electronic bulletin board systems that are
configured to make such messages readily accessible to the
general public. Fishman, *Cumulative Supplement*, 1994,
section 7.67.

   (6)  Clifford Fishman, personal communication, January 23,
1995. This process can be seen, for example, in the Law
Enforcement Communications Act of 1994's extension to cordless
telephones of the same Title III protection that applies to
cellular telephones.

   (7)  Surveillance with the consent of one of the parties to
a communication (e.g., an informant wearing a hidden
microphone) does not require an intercept order. On *Lee v.
United States*, 343 U.S. 747 (1952). See Wayne R. LaFave and
Jerold H. Israel, *Criminal Procedure*, 2nd ed., West
Publishing, St. Paul, Minn., 1992, pages 248, 254-255, 258-259

   (8)  Stephen Patrick O'Meara, "On Getting Wired:
Considerations Regarding Obtaining and Maintaining Wiretaps
and 'Bugs'," *Creighton Law Review*, Volume 26, 1993, pages
729-749.

   (9)  See LaFave and Israel, *Criminal Procedure*, 1992,
pages 248-256, for a discussion of Title III and the Fourth
Amendment.

   (10) 18 U.S.C. Section 2516(1); and Carr, *The Law of
Electronic Surveillance*, 1994, section 4.2.

   (11) Requirements are detailed in 18 U.S.C. Section 2518.
Emergency intercepts may be performed without first obtaining
a warrant in certain circumstances, such as physical danger to
a person or conspiracy against the national security. An
application for a warrant must subsequently be made within 48
hours. There has been virtually no use of the emergency
provision, and its constitutionality has not been tested in
court. See LaFave and Israel, Criminal Procedure, 1992, page
254.

   (12) For a concise description of the application
procedure, see Delaney et al.,* "Wiretap Laws and
Procedures*," 1993.

   (13) In general, the Supreme Court has significantly
diminished the strictness of the statutory identification
provisions. Potential telephone users may be listed in the
application as "others, as yet unknown." Evidence obtained in
a valid wiretap about crimes other than the one specified in
the application is also admissible. See Fishman, *Cumulative
Supplement*, 1994, sections 49-50, 55-56.

   (14) Ronald Goldstock and Clifford Fishman, briefings
before the Committee to Study National Cryptography Policy,
Irvine, Calif., February 10, 1995. For a description of FBI
and New York State Police procedures, see Delaney et al.,
"Wiretap Laws and Procedures," 1993, section 2.1.

   (15) 18 U.S.C. Section 2518(4). See Fishman, *Cumulative
Supplement*, 1994, section 118. See also Chapter 6 of this
report for a discussion of how the Communications Assistance
to Law Enforcement Act codifies specific obligations for
carriers to assist authorized surveillance.

   (16) The Supreme Court has interpreted minimization
criteria to permit some interception of irrelevant
communications. For example, monitoring of a high percentage
of all calls early in the surveillance operation is
permissible, provided officers observe emerging patterns of
conversations with innocent parties and adjust accordingly.
See O'Meara, "On Getting Wired," 1993, page 743. In addition,
judges rarely respond to minimization failures by suppressing
the entire body of evidence gathered throughout the
surveillance. More typically, they suppress only the specific
conversations or other interceptions that should have been
minimized and were not. Clifford Fishman, briefing to the
Committee to Study National Cryptography Policy, Irvine,
Calif., February 10, 1995.

   (17) Carr, *The Law of Electronic Surveillance*, 1994,
section 5.7(c).

   (18) See Fishman, *Cumulative Supplement*, 1994, sections
151-159. 

   (19) Delaney et al., "Wiretap Laws and Procedures," 1993,
sections 2.4-2.5. 

   (20) Fishman, *Wiretapping and Eavesdropping*, 1978,
section 203; and Fishman, *Cumulative Supplement*, 1994,
section 211. 

   (21) Fishman, *Cumulative Supplement*, 1994, section 7.58. 

   (22) Fishman, *Cumulative Supplement*, 1994, sections 7.32,
42.1, 53.1. 

   (23) LaFave and Israel, *Criminal Procedure*, 1992, pages
256-257. 

   (24) Fishman, *Cumulative Supplement*, 1994, section 42.1. 

   (25) Fishman, *Cumulative Supplement*, 1994, sections
28-29.

   (26) Dialed number recorders combine the functions of pen
registers and trap-and-trace devices.

   (27) In *Smith v. Maryland*, 442 U.S. 735 (1979), the
Supreme Court ruled that a person placing a call has no
"reasonable expectation of privacy" that the telephone company
will not reveal the fact of the call to third parties,
therefore, no warrant was required. See Fishman, *Cumulative
Supplement*, 1994, section 

   (28) Fishman, *Cumulative Supplement*, 1994, section 28.2.

   (29) See Fishman, *Cumulative Supplement*, 1994, sections
7.27, 7.39, and 7.46. Definitions, procedures, and penalties
related to accessing stored oral, wire, and electronic
communications are given at 18 U.S.C. Sections 2701-2710.

   (30) The most significant court decision yet made on the
subject, itself open to various interpretations, is *Steve
Jackson Games v. United States Secret Service* (1993, W.D.
Tex.) 816 F. Supp. 432, 442. On appeal, the U.S. Court of
Appeals, Fifth Circuit (36 F. 3d 457), examined the question
of whether "seizure of a computer used to operate an
electronic bulletin board system, and containing private
electronic mail which had been sent . . . but not read
(retrieved) by the intended recipients, constituted an
unlawful intercept under [ECPA]" and affirmed the lower
court's decision that it did not.

   (31) The *Wall Street Journal* reported that one of the
first publicized instances of law enforcement use of a Title
III intercept order to monitor a suspect's electronic mail
occurred in December 1995, when a CompuServe Information
Services customer was the subject of surveillance during a
criminal investigation. See *Wall Street Journal*, January 2,
1996, page B16.


____________________________________________________________


       D.1.3 The Foreign Intelligence Surveillance Act

   In the mid-1970s, Congress undertook several public
investigations of controversial, domestic surveillance
activities by U.S. intelligence agencies, such as the Central
Intelligence Agency.(32) Title III explicitly recognized
presidential authority to take measures to protect national
security, and in a 1972 case, *United States v. United States
District Court* (often called the Keith case), the Supreme
Court ruled that it is reasonable and necessary in some
circumstances to weigh Fourth Arnendment rights against the
constitutional responsibility of the executive branch to
maintain national security.(33) In order to achieve a balance
arnong these conflicting demands, Congress passed the Foreign
Intelligence Surveillance Act of 1978 (FISA). FISA concerns
surveillance for gathering foreign intelligence information,
as opposed to law enforcement. Nevertheless, many of its
procedures parallel those of Title III, and evidence gathered
properly through FISA surveillance may, in some circumstances,
be used in a trial.

   Like Title III, FISA provides statutory procedures for
authorizing electronic surveillance within the United States.
Executive Order 12333 specifically states that no foreign
intelligence collection may be undertaken for the purpose of
acquiring information concerning the domestic activities of
U.S. persons,(34)(35) and FISA surveillance may be performed
only against foreign powers or their agents. FISA regulates
signals intelligence collection conducted in the United States
and signals intelligence collection directed at a known U.S.
person located in the United States; Executive Order 12333
regulates signals intelligence collection directed at a known
U.S. person located outside the United States.(36) (See Table
D.3 for a description of what approvals are required for
electronic surveillance of cornrnunications in various
circurnstances.) To conduct surveillance of a U.S. person
within the United States, the executive branch must
demonstrate to a special court, the Foreign Intelligence
Surveillance Court (discussed below), probable cause to
conclude that the U.S. person is an "agent of a foreign
power." The phrase includes persons who engage in, or aid or
abet individuals who engage in, espionage, terrorism, or
sabotage.(37) Each FISA warrant application is signed, under
oath, by the applicant, certified by the Secretary of Defense
or Deputy Secretary of Defense that it is directed against a
bona fide "foreign power" or "agent of a foreign power,"
reviewed by the Department of Justice and endorsed by the
Attorney General, and approved by a judge of the Foreign
Intelligence Surveillance Court.(38) The warrant application
must also identify the type of foreign intelligence
information sought; communication media, facilities, and
persons to be monitored; devices and procedures to be used,
including those for minimization; duration of the order, up to
90 days (or 1 year if the target is a foreign power); review
of previous surveillance related to the same target; and
certification that the information carmot be obtained through
normal investigative methods.(39)

   Electronic surveillance governed by FISA includes
interception of wire, radio, and other electronic
communications. Interception of these communications is
regulated only if they take place under conditions of a
reasonable expectation of privacy, in which a warrant would be
required for law enforcement surveillance. It addresses only
communications occurring at least partly within the United
States (wholly, in the case of radio communications), although
listening stations used by investigating officers may be
located elsewhere. FISA also covers the use of pen registers
and trap-and-trace devices.

   The purpose of FISA surveillance is to obtain foreign
intelligence information. FISA defines this in terms of U.S.
national security, including defense against attack, sabotage,
terrorism, and clandestine intelligence activities, among
others. The targeted communications need not relate to any
crime, although surveillance for counterespionage and
counterterrorism purposes clearly has the potential to yield
evidence for criminal prosecution. FISA surveillance actions
are implemented operationally by the FBI--sometimes on behalf
of other intelligence agencies of the U.S. government.

   FISA established a special court with sole authority to
review applications and grant intercept orders. The Foreign
Intelligence Surveillance Court (FISA court) consists of seven
U.S. district court judges appointed by the Chief Justice of
the Supreme Court. The FISA court meets in secret twice yearly
in Washington, D.C., although the court acts through a single
judge that is always available.(94) One of the seven judges
has always been a judge in the Washington, D.C., area to
ensure local availability, and the other six judges rotate
through Washington, D.C. FISA also provides for an appeals
court. However, the FISA court has never denied a request for
an order, and the appeals court has never met. One
interpretation of this history is that the FISA court is a
rubber stamp for government requests for foreign intelligence
surveillance request. A second interpretation is that the
authorities who request such surveillance prepare their cases
with such thoroughness and only in those in which such
surveillance is truly necessary that the FISA court has never
found sufficient fault with a request to deny it. Without a
detailed independent review of all requests (a task beyond the
scope of the committee), it is impossible to choose
definitively between these two interpretations. Members of the
committee having personal experience with the FISA process
prefer the second interpretation. Since 1979, there has been
an average of more than 500 FISA orders per year. In 1994, 576
were issued. Other information about FISA intercepts is
classified.(41)

   Unlike Title III, FISA does not require that the target of
surveillance ever be notified that communications have been
intercepted. Evidence gathered under a FISA order may be used
in a trial, with the approval of the Attorney General. A
defendant whose communications were intercepted then receives
a transcript and may move to suppress such evidence if it was
gathered unlawfully. However, the defendant is denied access
to the application and FISA court order if the Attorney
General certifies that national security would be harmed by
release of these documents. In this case, the appropriate
federal district court reviews and rules on the legality of
the warrant ex parte, in camera (without adversarial
representation, in secret). This may severely restrict the
defendant's ability to obtain suppression.(42)

   Finally, signals intelligence activities may incidentally
generate information to, from, or about U.S. persons even when
they are directed at foreign individuals. Information so
derived is regulated by one of two sets of minimization
procedures. One set is statutorily mandated by FISA. Every
FISA surveillance approval is subject to those minimization
procedures. The procedures prescribe how information about
U.S. persons acquired during the course of a FISA surveillance
may be processed, retained, and disseminated.(43) The other
set is mandated by Executive Order 12333 and regulates all
other signals intelligence collection, processing, retention,
and dissemination involving information on U.S. persons. This
set is approved by the Secretary of Defense and the Attorney
General. Copies are provided to the Senate and House
Intelligence Committees prior to implementation.

----------

   (32) For a brief history of FISA's origins, see James E.
Meason, "The Foreign Intelligence Surveillance Act: Time for
Reappraisal," *International Lawyer* Volume 24(4), Winter
1990, pages 1043-1058.

   (33) 407 U.S. 297 (1972). See Allan N. Komblum and Lubomyr
M. Jachnycky, "America's Secret Court: Listening in on
Espionage and Terrorism," *The Judge's Journal*, Summer 1985,
pages 15-19.

   (34) Executive Order 12333, Section 2.3(b).

   (35) "U.S. persons" are defined by FISA and by Executive
Order 12333 to include U.S. citizens, permanent resident
aliens, corporations incorporated in the United States, and
unincorporated associations substantially composed of U.S.
citizens or U.S. persons. 50 U.S.C. Section 1801(i) and E.O.
12333, Section 3.4(i).

   (36) Interception of communications taking place entirely
outside the United States, whether or not the participants
include U.S. persons, is not governed by FISA, Title III, or
any other statute. Executive Order 12333 requires that the
Attorney General approve the use for intelligence purposes,
against a U.S. person located abroad, of any technique for
which a warrant would be required if undertaken for law
enforcement purposes. In each case, the Attorney General must
find probable cause to conclude that the individual is an
agent of a foreign power before collection may begin.

   (37) 50 U.S.C. Section 1801(b)

   (38) Surveillance may take place without a court order for
up to 1 year if the Attorney General certifies that there is
very little likelihood of intercepting communications
involving U.S. persons and the effort will target facilities
used exclusively by foreign powers. Under limited
circumstances, emergency surveillance may be performed before
a warrant is obtained. Fishman, *Cumulative Supplement*, 1994,
sections 361, 366.

   For a discussion of FlSA's applicability in various
circumstances, see Fishman, *Cumulative Supplement*, 1994,
sections 348-358.

   (39) 50 U.S.C. Section 1805. See Delaney et al., "Wiretap
Laws and Procedures," 1993, section 3.1. Some of this
information may be omitted if the target is a foreign power.

   (40) See Kornblum and Jachnycky, "America's Secret Court,"
1985, for a description of the Foreign Intelligence
Surveillance Court, a list of its members, and a review of the
judicial record on the constitutionality of the court and its
procedures.
   (41) Benjamin Wittes, "Inside America's Most Secretive
Court," *Legal Times*, February 19, 1996, page 1. 

   (42) LaFave and Israel, *Criminal Procedure*, 1992, pages
260-261. 

   (43) 50 U.S.C. Section 1801(h) 

____________________________________________________________


     D.2 HISTORICAL OVERVIEW OF ELECTRONIC SURVEILLANCE


   The right to privacy of communications from electronic
surveillance (such as bugging and wiretapping) is protected by
several federal and state statutes and by the Fourth Amendment
to the Constitution. This was not always the case. Electronic
surveillance of communications first came before the U.S.
Supreme Court in 1927. In *Olmstead v. United States*,(44) the
Court ruled by a 5-4 vote that interception of telephone
conversations by federal law enforcement officials using a
wiretap did not constitute a search or seizure, because
nothing tangible was seized and no premises were entered and
searched. The Court concluded that wiretapping was not subject
to Fourth Amendment protection against unreasonable search and
seizure.

   New legislation, however, soon removed the wiretap from the
repertoire of evidence-gathering tools. The Communications Act
of 1934 made it a crime for anyone, including law enforcement
officials, to intercept and subsequently divulge telephone,
telegraph, or radio communications without the consent of the
sender. The statute did not state specifically that evidence
obtained through wiretaps was inadmissible in a trial.
Subsequent court rulings held, however, that wiretap evidence
gained without consent could not be used because to divulge it
in court would be against the law.(45) Federal officials
continued to conduct warrantless wiretaps, mainly against
suspected foreign agents under the President's constitutional
authority to protect national security.(46) (These activities
were later regulated with the passage of FISA in 1978.) State
law enforcement agencies also continued to wiretap, where
permitted by state laws and not associated with federally
regulated interstate commerce.

   Technological advances led to the development of other
means of electronic surveillance that continued, for a time,
to be accepted by the courts. In particular, electronic bugs
were not restricted by the Fourth Amendment, by the same
principle that applied in *Olmstead* -- they seized nothing
tangible. Nor were they subject to the Communications Act
prohibition on divulgence of intercepted communications
because they intercepted only sound waves, not wire or radio
signals. In *Goldman v. United States*,(47) the Supreme Court
found that federal officers could legally use a listening
device placed against the wall of a room adjoining the one
occupied by the target of an investigation. As long as no
physical trespass took place, the Fourth Amendment did not
apply and no search warrant was needed. In other cases, the
Court also supported the practice of "wiring" a consenting
party to the communication -- such as an undercover agent or
informant -- with a device to record or transmit conversations
in the hearing of the person wearing the wire.(48)

   Over time, however, a series of decisions eroded the legal
framework for bugging. In *Silverman v. United States*,(49)
for example, the Court rejected agents' use of a "spike mike"
driven through an adjacent wall into the heating ducts of a
target's house as a Fourth Amendment violation, even though
agents did not physically enter the premises. Finally, in the
1967 case of *Katz v. United States*,(50) the Court found that
federal agents' bugging of a public telephone booth known to
be used regularly by a particular suspect was a search and
seizure protected by the Fourth Amendment. A person using a
phone booth was found to have a reasonable expectation of
privacy, which may not be infringed without a valid warrant
based on probable cause to believe that a crime has been or
will be committed. In this ruling, the Court explicitly
overturned *Olmstead* and *Goldman* and determined that Fourth
Amendment protection applies to persons, not merely to places
that can be entered and searched.

   With the *Katz* decision, law enforcement officials were
left with neither bugs nor wiretaps as viable tools for
gathering evidence. Their absence was significant,
particularly since these tools were thought to have great
potential usefulness for investigating and prosecuting
conspiratorial activities such as organized crime, a
high-profile social and political issue in the late 1960s. The
judicial record made it clear that electronic surveillance
with a court order would not be prohibited by the
Constitution, but new legislation was needed to define and
regulate court-ordered surveillance.(51) At the same time,
existing statutes such as the Communications Act inadequately
protected communications from malicious interception and use
by private citizens acting outside a law enforcement
capacity.(52)

   Congress took action in 1968 to give law enforcement the
tools of electronic surveillance, subject to constitutional
and statutory controls, and to outlaw electronic interception
of communications in most other circumstances. Title III of
the Omnibus Crime Control and Safe Streets Act of 1968 created
the first specific, legal framework for electronic
surveillance of oral and wire (telephone) communications. It
made an exception to the Communications Act's divulgence
prohibition for law enforcement officers with a court-issued
warrant, thus bringing wiretapping back into legal use. To
guard against abuse of these politically charged, highly
intrusive techniques, Congress imposed special procedures for
obtaining a warrant and other restrictions beyond those
required under the Fourth Amendment. These are discussed in
detail in Section D. 1.2. Title III also specified civil and
criminal penalties for anyone intercepting private
communications outside these approved circumstances. In
addition, it required state statutes to be at least as
restrictive as Title III.(53) Currently, 37 states and the
District of Columbia have electronic surveillance
statutes.(54)

   At the time the Omnibus Crime Control and Safe Streets Act
was passed in 1968, President Johnson strongly objected to
Title III, warning that it could lead to governmental abuses
of civil liberties.(55) However, after an initial flurry of
court challenges, a rough consensus has emerged in the nation
that wiretapping under the jurisdiction of Title III
represents a reasonable compromise between the rights of
individuals and the law enforcement needs of the state.

   In 1986, Congress passed the Electronic Communications
Privacy Act. One of the act's main purposes was to update
Title III. The advance of technology after 1968 brought new
forms of communication into common use. Many of these
stretched the framework of Title III. Electronic mail, data
interchange, medical records, and fund transfers are examples
of potentially confidential communications that did not fit
within the original Title III definitions of oral and wire
communications. With respect to personal (as opposed to
broadcast) radio communications, which grew rapidly with the
advent of cellular and other mobile telephone services,
neither Title III nor the Communications Act provided guidance
for law enforcement surveillance. Treatment of video images
associated with teleconferencing was also unclear.(56)

   ECPA added a new category, electronic communications, to
Title III's protection of oral and wire communications. In
general, electronic communications are communications carried
by wire (including optical fiber) or radio that do not involve
the human voice; rather, they convey information such as text,
images, and numerical data. Many of these communications were
protected by ECPA for the first time, with both criminal and
civil penalties defined for infringing on their privacy. As
discussed in Section D.1.2, however, the privacy of electronic
communications with respect to law enforcement was set at the
Fourth Amendment standard of protection, rather than the
additional level of protection given by Title III to oral and
wire communications. This reflected a political compromise
among several factors, including the interests of law
enforcement, the telecommunications industry, and civil
liberties; judicial precedent; and the judgment of Congress
that bugging and telephone wiretapping are inherently more
sensitive than interception of electronic communications.(57)
As discussed in Section D.1.2, ECPA also created new
regulations for traffic analysis and for retrieval of stored -
communications.

----------

   (44) 277 U.S. 438 (1928). Much of the following discussion
of the evolution of electronic surveillance law is based on
the work of LaFave and Israel, *Criminal Procedure*, 1992,
pages 246-256.

   (45) For example, *Nardone v. United States*, 308 U.S. 338
(1939). The Court also excluded evidence obtained as a result
of information gained in a wiretap. See LaFave and Israel,
*Criminal Procedure*, 1992, page 246.

   (46) See LaFave and Israel, *Criminal Procedure*, 1992,
pages 259-260.

   (47) 316 U.S. 129 (1942). See discussion in LaFave and
Israel, *Criminal Procedure*, 1992, page 248.

   (48) *On Lee v. United States*, 343 U.S. 747 (1952). See
LaFave and Israel, *Criminal Procedure*, 1992, pages 248,
258-259.

   (49) 365 U.S. 505 (1961). See LaFave and Israel, *Criminal
Procedure*, 1992, page 248.

   (50) 389 U.S. 347 (1967). See LaFave and Israel, *Criminal
Procedure*, 1992, page 248.

   (51) See Carr, *The Law of Electronic Surveillance*, 1994,
section 2.3(d). 

   (52) LaFave and Israel, *Criminal Procedure*, 1992, page
248. 

   (53) Fishman, *Wiretapping and Eavesdropping*, 1978,
section 5; and Fishman, *Wiretapping and Eavesdropping:
Cumulative Supplement*, 1994, section 5. 

   (54) Administrative Office of the United States Courts,
*Wiretap Report for the Period January 1, 1994 to December 31,
1994*, U.S. Government Printing Office, Washington, D.C.,
1995, page 3. 

   (55) 1968 Congressional Quarterly Almanac, page 225.

   (56) For a detailed analysis of ECPA's additions to
electronic surveillance law, see Fishman, *Cumulative
Supplement*, 1994, sections 7.21-7.28, 7.32.

   (57) Fishman, *Cumulative* Supplement, 1994, section 5.1
and CSTB staff communication with Clifford Fishman, January
23, 1995.

____________________________________________________________


TABLE D.1 Court-Ordered Electronic Surveillance Authorized
Under Title III, 1994


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TABLE D.2 Court-Ordered Electronic Surveillance, 1984 to 1994


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TABLE D.3 Approval Requirements for Foreign Intelligence
Surveillance of Various Parties Variously Located (under FISA
in the United States and Executive Order 12333 Outside the 
United States)


Party:                       U.S. person may be targeted for
                             wire intercepts.

In the United States:        Only if known to be an agent of
                             a foreign power and a FISA
                             warrant is approved.

Outside the United States:   Only with the approval of the
                             Attorney General.



Party:                       Non-U.S. person may be targeted
                             for wire intercepts.

In the United States:        Only if a FISA warrant is
                             approved.

Outside the United States:   Without restriction.

____________________________________________________________

[End Appendix D]





