Movies adversely impact the privacy vs. security debate in this country. Law enforcement agents are either mythologized or demonized, using exotic technologies to monitor half the country without any obvious administrative requirements. Did Agent Scully ever do any paperwork?
It is important to stress that reality is, of course, much different. From a technical standpoint, law enforcement has suffered in its ability to monitor new communications technologies. Not only do they not have science fiction gadgets, they have struggled to keep pace with what they used to do.
No one is ever going to make a film about how a telephonic intercept order works its way through the system, but a brief overview of the process underscores how privacy is already protected by well-settled law, which requires rigorous review prior to any intercept order being put in place.
The law governing electronic surveillance grew out of a series of cases grounded in Fourth Amendment search and seizure analysis. An electronic intercept is essentially a search, though not of a physical space, but a virtual one. The evidence seized from that search is similarly not physical, but extremely valuable nonetheless. The matter was finally dealt with statutorily in 1968, with the passage of what is popularly known as Title III. The law outlined procedures for federal wiretaps, and 45 states have some form of intercept law based on the statute.
Under Title III, an application for an order goes to the Department of Justice, where it is reviewed by an official of at least the rank of Deputy Assistant Attorney General, before being submitted to a federal judge. For an order to be issued, the facts in the application must demonstrate probable cause that an individual has committed, or is committing an offense enumerated in the statute, all of which are serious crimes. The application must articulate with particularity the nature and type of communication, as well as a statement of the particular offense. It must specify the identity of the person using the communication, if known. No order may permit interception for a period longer than necessary to achieve the objectives as stated, and in no case longer than 30 days. Extensions can be granted, but only after meeting the standards of the original application.
In rare cases, an emergency order can be obtained, if grounds already exist to get an order, but dangerous circumstances demand immediate action. In this case a formal application must be made within 48 hours after the intercept began, and must terminate if an order is not issued.
Obviously, serious investigation must take place prior to applying for an intercept order.
It is the final technique used, not the first. Privacy protections exist after the order is issued as well. Monitors are required to minimize the taped product of the order, eliminating conversations not germane to the investigation.
Intercepts dealing with national security come under another statute, the Foreign Intelligence Surveillance Act of 1978. The act provides that the Chief Justice of the United States appoint seven district judges, one from each judicial circuit, to sit as a special court to hear applications and issue orders. These orders last 90 days, or until its purpose is achieved, whichever is less. This law applies where there is probable cause that the target of the order is a foreign power or agent of a foreign power. No “United States person” can be considered an agent of a foreign power based solely on activities protected by the First Amendment. This law has been in the spotlight in the campaign against terrorism.
The CALEA privacy debate can be summarized as follows: In the interest of privacy, should law enforcement be denied intercept access to certain modern communications technologies, even though these technologies are covered by Title III and FISA? Historically, law enforcement has not been constrained by the nature of technology, but by the nature of its case. Law enforcement simply must be able to intercept communications of criminals, spies and terrorists, whatever the technology. The public understands that controlled and limited surveillance is acceptable when weighed against potential catastrophe.
CALEA states that the FCC should consider privacy when administering the act. Federal and state judges, experienced in reviewing applications from law enforcement, already protect privacy. That language in CALEA was not meant to turn highly developed law on its head. Law enforcement has never advocated overly intrusive intercept techniques. Indeed, the FBI is currently seeking public standards that outline exactly what they can get. Law enforcement only wants to maintain an extremely valuable investigative technique in a rapidly changing communications environment. They have consistently advocated, with public approval, that electronic surveillance, with vigorous oversight, has a place in a constitutional democracy. That is even more true in the times in which we live, times which are stranger than fiction.
Les Szwajkowski is the recently retired chief of the FBI’s CALEA division. He now works for Raytheon Corp.
