Criminal Procedure for the Criminal Justice Professional 11 th Edition

1. Criminal Procedure for the Criminal Justice Professional11th Edition John N. Ferdico Henry F. Fradella Christopher Totten Searches for Electronically-Stored Information (ESI) andElectronic Surveillance Chapter 5 Prepared by Tony Wolusky

2. Electronically Stored Information (ESI) To insure compliance with the Fourth Amendment's particularity requirement, officers should specify the following in their applications for search warrants of ESI: • the crimes for which evidence is being sought; • the reasons why there is probable cause to believe the computer will contain such evidence; • the dates and/or time frames that are relevant to the investigation; and • a relevant search strategy in practical, non-technical terms to ensure that the search does not become a general rummaging expedition as opposed to one with particularly-defined parameters.

3. Electronic Surveillance Warrants

4. Electronic Surveillance • Electronic surveillance refers to searches conducted using wiretaps, bugs, or other devices to overhear conversations or obtain other kinds of information. • They are a relatively recent concern of criminal and constitutional law. • The Constitution gives little guidance for balancing privacy interests against the need for effective law enforcement in the area of electronic surveillance.

5. Early Developments in Electronic Interceptions Law • The U.S. Supreme Court’s first electronic eavesdropping case was Olmstead v. United States (1928). • It held that wiretapping was not covered by the Fourth Amendment because a conversation was not tangible. • The focus changed from a “property” approach to a “privacy” approach in 1967, with Katz v. United States. • Electronic surveillance does fall within the realm of the Fourth Amendment

6. Omnibus Crime Control and Safe Streets Act of 1968 • Title III of the Omnibus Crime Control and Safe Streets Act attempts to balance the need to use electronic surveillance for effective law enforcement against the need to protect individuals’ privacy rights throughjudicial supervision of all aspects of electronic surveillance and establishment of warrant procedures.

7. Omnibus Crime Control and Safe Streets Act of 1968: Terminology • Electronic Communication: “[A]ny transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system that affects interstate or foreign commerce but does not include (A) any wire or oral communication; (B) any communication made through a tone-only paging device; (C) any communication from a tracking device . . . ; or (D) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds.” 18 U.S.C. § 2510(12).

8. Omnibus Crime Control and Safe Streets Act of 1968: Terminology • Aural Transfer:"A transfer containing the human voice at any point between and including the point of origin and the point of reception." 18 U.S.C. § 2510(18). • Oral Communication: “Any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication.” 18 U.S.C. § 2510(2).

9. Omnibus Crime Control and Safe Streets Act of 1968: Terminology • Wire Communication: “[A]ny aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce and such term includes any electronic storage of such communication.” 18 U.S.C. § 2510(1).

10. Omnibus Crime Control and Safe Streets Act of 1968: Terminology • Intercept: "[T]he aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” 18 U.S.C. § 2510(4).

11. Title III and its Applicability to the States • Title III specifically authorizes state law enforcement officials to apply for, obtain, and execute orders authorizing or approving the interception of wire, oral, or electronic communications. • The procedures are similar to those governing federal interception orders. • The state procedure must also be authorized by a separate state statute.

12. Remedies for Illegally Obtained Interceptions • Title III is broader in both scope and remedies than the Fourth Amendment. Notably, Title III applies to private searches and seizures of wire, oral, or electronic communications, not just those involving governmental actors. When its mandates are violated, Title III provides its ownstatutory remedies.

13. Remedies for Violating Title III • Title III provides for both criminal and civil penalties for violations of its commands aimed at protecting privacy. For example, United States v. Councilman, 418 F.3d 67 (1st Cir. 2005) upheld criminal charges against an Internet service provider for the illegal interception and copying of e-mail messages. Similarly, DIRECTV, Inc. v. Rawlins, 523 F.3d 318 (4th Cir. 2008), ordered damages for a satellite TV provider against a customer who used illegal devices to access programming beyond the terms of his subscription. • Title III contains it own statutory exclusionary rule for intercepts that were illegally obtained by either government actors or private persons. The reach of this exclusionary rule is much broader under 18 U.S.C. § 2515 than the judicially-created exclusionary rule applicable to Fourth Amendment violations.

14. Interceptions Beyond Scope of Order • When law enforcement officers intercept communications that relate to offenses other than those specified in the interception order, the government may use the evidence of these other crimes only if another application is made to a court “as soon as practicable” for a determination that the interception complied with Title III requirements. See United States v. Angiulo, 847 F.2d 956 (1st Cir. 1988).

15. Standing to Object • Any “aggrieved person” may move to suppress the contents of or evidence derived from oral or wire intercepts that were obtained in violation of Title III in either a state or federal proceeding. • An aggrieved person means “a person who was a party to any intercepted” wire or oral communication or “a person against whom the interception was directed.” 18 U.S.C. § 2510(11).

16. Exemptions from Title III • Types of electronic communications are not covered by Title III include: • Cases of willful and voluntary disclosure • Certain cases of eavesdropping • Consent surveillance • Provider exception • Computer trespasser exception • Public access exception • Pen registers, trap and trace devices, and tracking devices • E-mail, voicemail, and video surveillance

17. The Foreign Intelligence Surveillance Act (FISA) of 1978 • FISA authorizes and regulates the electronic surveillance of foreign powers and their agents within the United States. FISA: • Does not regulate U.S. governmental intelligence operations outside of the United States. • Permits federal agents to conduct electronic surveillance and physical searches for national defense purposes. • Authorizes physical searches of "premises, information, material, or property used exclusively by, or under the open and exclusive control of, a foreign power or powers."

18. Approving FISA Applications • FISA applications are reviewed by the Foreign Intelligence Surveillance Court (FISC). • The President, through the U.S. Attorney General, is also authorized to approve FISA applications. • Challenges to FISA applications are done in Franks proceedings.

19. Approving FISA Applications • If, on the basis of the application, the judge makes the required findings, the judge may issue an interception order. Pursuant to 18 U.S.C. § 2518(4), the order must specify: • the identity of the person, if known, whose communications are to be intercepted; • the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted; • a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates; • the identity of the agency authorized to intercept the communications, and of the person authorizing the application; and • the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.