Transcript Chapter 5 Eavesdropping and Interception of Communication

Chapter 5 Eavesdropping and
Interception of Communication
• Eavesdropping – listening with the unaided
ear
• Interception – use of a device to monitor or
record communications
– Interception nearly always constitutes a search
and must comply with Fourth Amendment
Fourth Amendment Protection of
Communications
• Olmstead v United States – “search”
requires a physical intrusion into protected
area and “seizure” requires taking tangible
objects
• Katz v United States – Search occurs when
police intrude on suspect’s reasonable
expectation of privacy, whether or not they
commit a physical trespass
Fourth Amendment Protection of
Communication, cont’d.
• Anything a person knowingly exposes to public is
not protected by Fourth Amendment
• Matters a person reasonably considers private are
protected by Fourth Amendment. Police conduct
that intrudes on a suspect’s reasonable expectation
of privacy is “search”
• Probable cause is not enough – need prior
authorization by a judge
Fourth Amendment Protection,
cont’t
• Conversations a person knowingly exposes to
public are not protected by 4th Amendment
• Conversations a person reasonably expects are
private are protected.
• One who makes incriminating disclosures in
presence of another assumes the risk and has no
reasonable expectation that other party will keep
the information secret.
Eavesdropping
• Conditions under which eavesdropping is
permissible:1) officer listens with naked ear, 2)
from a location where the officer is lawfully
present
• Officer may use ordinary cassette recorder with
standard microphone to record any
communication the officer actually overhears
while eavesdropping.
• If recording device more sensitive than human ear
must comply with Title III
Title III Omnibus Crime Control
and Safe Streets Act of 1968
• Prohibits police from intercepting protected
communication with a device unless:
• 1) judge issues interception order,
• 2) one of parties consents, or
• 3) police are faced with emergency
Meaning of “Interception”
• 1) Use of electronic, mechanical, or other
device
• 2) to gain aural access to
• 3) the contents of a wire, electronic, or oral
communication
Meaning of “Interception,”
cont’d
• Use of device – Title III regulates use of any
device that facilitates aural access to
contents of wire, electronic, or oral
communication
• To gain aural access – device must provide
access to communication that is not
otherwise audible to the police
Contents of Wire, Electronic, or
Oral Communication
• Wire Communication – involve transmissions of
human voice messages over a public
communication network, (telephone
conversations)
• Electronic Communication – transmissions of
matters other than human voice messages
(between fax machines or computers)
• Oral Communication – Voice messages that travel
through air by sound waves (face to face )
Procedural Requirements for
Intercepting Communications
• Limited to investigation of enumerated
crimes
• Federal court – must have approval of
Attorney General or high ranking official
• State court – Attorney General of state or
district attorney
Procedural Requirements, cont’d
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•
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Minimization requirement –
Access and assistance in placing device Termination of interception order –
Limitations on disclosure and use of
contents
Exceptions to Need for
Interception Order
• Consent – 1) user of device is party to
communication, or 2) one of parties to
communication grants permission
• Emergency exception – Involves 1)
immediate danger of death or serious
physical injury, 2) conspiratorial activity
threatening national security, or 3)
conspiratorial activity like organized crime
Foreign Intelligence Surveillance
Act
• Legislation found at 50 U.S.C. § 1801 et
seq.
• FISC composed of 11 federal district court
judges , selected by the Chief Justice of the
U.S. Supreme Court
• FISC hears applications for orders
authorizing electronic surveillance and
physical searches in national security cases
FISA
• Court’s proceedings are secret, records of
proceedings are sealed after application is
heard. Subject never learns of the
surveillance unless criminal charges are
later brought.
• Orders only issued when target of
surveillance is foreign power or agent –
includes terrorists
• FISA orders cannot be obtained to conduct
surveillance of groups and individuals
engaged in purely domestic terrorism who
have no ties to foreign powers. Must use
Title III.
• Judicial oversight of FISA applications is
minimal. Of thousands of applications since
1978, only one has been denied.
• FISA orders are issued on mere showing of
probable cause to believe target of
surveillance is a foreign power or agent.
Government is not required to establish
probable cause to believe target is involved
in criminal activity, unlike the requirements
of Title III.
• USA Patriot Act reduced the showing from
“primary purpose” of foreign intelligence
investigation to “significant purpose.”
• Change allows government to use FISA to gather
evidence for criminal prosecution – without
establishing probable cause to believe that a crime
has been committed – as long as collecting foreign
intelligence is “significant purpose” of
investigation.
Technologically-assisted
Surveillance Other Than
Communication
• No search warrant needed to use video
surveillance and tracking equipment to monitor
activities exposed to open view in public
• If surveillance requires an entry into
constitutionally protected private location to install
equipment or if equipment is used to monitor
domestic activities in a home, then police must
obtain search warrant
• Kyllo v United States – Police aim thermal
imaging device at home from public street. Court
said search results when sense-enhancing
technologies not in general public use are used to
obtain information about activities inside home
• United States v McIver – Warrantless video
surveillance of marijuana growing in remote area
of national forest did not violate Fourth
Amendment
Pen registers and trap-and-trace
devices
• Pen registers – record telephone numbers
dialed from a given line
• Trap-and-trace devices – identify telephone
numbers of calls made to that line
• No expectation of privacy because
telephone companies maintain records for
billing, routing, and other purposes