EAVESDROPPING AND WIRETAPPING
"Gentlemen don't read each other's mail" (Henry Stimson)
Eavesdropping is discussed here in the general context of surveillance, which can be broadly defined as the clandestine collection and analysis of information about persons or organizations and the timely passing on of such information to those who need to know. Surveillance and countersurveillance are essential and vital elements of most investigation and intelligence operations. Surveillance establishes a means of watching or listening without being detected, antisurveillance establishes a means of avoiding surveillance, and countersurveillance establishes a means of avoiding other security breaches and deceiving an ongoing surveillance operation. Most surveillance has physical and electronic aspects, and is preceded by active reconnaissance, and not infrequently, by surreptitious entry to plant a monitoring device. Other surveillance systems are mostly passive, such as those used to monitor wildlife, weather, planetary or space conditions. Some, like computer logs and cell phone locations, are more or less accessible only by subpoena. There are a variety of systems. An encompassing definition of surveillance would state that surveillance is anything that assists the human senses of hearing, seeing, smelling, or otherwise aids in the detection and recording of patterned activity which matches persons with events.
Successful application of the principles and techniques of surveillance usually requires a combination of human talent and technological innovation. Specialized equipment which is often miniaturized or concealable is frequently used, and such devices are also known as taps or bugs. The capability of success at surveillance is part of the capability of power. With that capability comes responsibility, which is why surveillance is often legally regulated. There is a history, in the United States at least, documented by Donner (1980), among others, of ambiguity over the regulation of surveillance for intelligence or investigative purposes. The law enforcement purpose has always been more regulated since it is concerned with producing evidence in court. However, as Bazan (2003) documents, the national security or intelligence purpose, which has traditionally not been all that regulated, seems to be moving in the direction of greater regulation given the impacts of FISA (the Foreign Intelligence Surveillance Act) and FOIA (the Freedom of Information Act). Technology transfer and the Internet has also put what was once expensive technology available only to authorized personnel and detectives into the hands of ordinary citizens and skilled hobbyists. The issues of free speech, search, and privacy have taken on wider implications.
THE BASIC THEORETICAL PRINCIPLES
There are many different types of surveillance. Peterson and Zamir (2000), for example, list seventeen types: audio, infra/ultra-sound, sonar, radio, radar, infrared, visual, aerial, ultraviolent, x-ray, chemical and biological, biometrics, animals, genetic, magnetic, cryptologic, and computers. A shorter list would include four general types of surveillance: visual; audio, moving, and contact. An even shorter list is the distinction frequently made between fixed (stationary, stakeout, or plant) and mobile (moving, tail, or shadow) surveillance. Both of the short lists emphasize the importance of physical surveillance as the basis for theoretical principles and foundations of most techniques. The theoretical principles of surveillance include the following basic axioms:
Target information should be individualized, although groups, associates, and co-conspirators may also be important to establish
Unexpected behavior by the target should always be expected, with contingency plans for this in place
Knowledge of an ongoing surveillance operation is best kept secret, but sometimes it is useful to notify other authorities if they can be trusted to be discreet and/or help to make the operation blend in with the local environment better
Good surveillance is a systematic, team effort with constant communication between each member of the team, regular briefings and debriefings (Some experts, e.g., Acm IV Security Services (1993) argue it takes twelve operators and six vehicles to put one individual under surveillance)
Surveillance must be eternally vigilant of countersurveillance, which is usually present when the target has financial resources and/or seems to employ other individuals
Surveillance is not a fishing expedition because too much of it, or getting off task, will not only result in an investigation losing focus but a courtroom defense of outrageous government conduct
Personnel who analyze the data obtained should be different personnel from the people who collected the data, as this is a basic principle in how the intelligence cycle works best
The techniques of surveillance depend upon the type of surveillance being used. Visual surveillance almost always makes use of photography or videography. Special cameras are used which allow good depth of field and are capable of zooming in on a target. Auto focusing, auto exposure Single Lens Reflex (SLR) cameras tend to be standard, along with a variety of filters and lenses, and a tripod. If the surveillance is stationary or fixed, there is little need for a concealable camera. In fact, a device similar to a robot camera may be used, enabling successive pictures at predetermined intervals, or a video system may be installed using an array of long-playing tapes. Digital photography or digital videography depends upon needs for computer enhancement and/or quality of printout. The number of megapixels is important for capturing detail, as 2 megapixels gives a good 5"x7" print, 3 megapixels gives a good 8"x10" print, 4 megapixels gives a good 11"x14" print, and 5 megapixels gives a good 16"x20" print. Infrared, ultraviolet, and x-ray photography are generally used in adverse weather conditions or when one is attempting to determine the composition of organic, inorganic, or crystalline substances. Satellite photography may be used for these purposes, but portable infrared devices have long existed that can be calibrated to see thru walls and detect body heat. The U.S. Supreme Court in Kyllo v. United States, 533, U.S. 27 (2001) cut down the use of warrantless infrared thermography by law enforcement when private residences are involved. The human element of skill at fixed surveillance comes into play with determining optimal camera location. A fixed observation post in an adjacent or nearby building is preferred because the cover story can involve all the rights and privileges of a neighboring tenant.
If the visual surveillance is mobile or moving, then any cameras used must be concealable and blend in with the operator as effective as the operator blends in with the environment. Subminiature cameras have been used in intelligence work since the Minox was first made in 1938. Ideally suited for document photography, the Minox and its many variations have become the model for matchbox, wristwatch, necktie, glove, briefcase, and waistbelt cameras. An even smaller, lightweight camera, the F21, has been sold commercially since 1990 along with a variety of pinhole cameras, which technically refer to the pinhole size of the lense aperture. A moving surveillance is difficult to maintain optically, and for this reason, it is usually supplemented by a close tail technique. The idea is to keep at least one member of the surveillance team in a close contact position, and leapfrog, or rotate different members of the team into this position. A prearranged set of signals between team members indicate when rotation takes place or if the target has made the tail. A loose tail, as opposed to a close tail, is only used if the target knows they are under constant surveillance. Likewise, a one-person tail, called a shadow, is rarely used because of the ease of detection. Moving surveillance can be on foot, by vehicle, aerial, or any combination of these. Radio communication is essential for coordination purposes. When vehicles are used, the perimeter box technique is often applied, where one car follows the subject, another leads, and another two maintain positions on parallel routes. Human ingenuity comes into play with the make and model of vehicles used. Vans and large vehicles are generally reserved for fixed stakeouts because they can be equipped with lavatories. Written notes and logs are the most frequent information product of moving surveillance.
A variation of moving surveillance involves the use of electronic bugs. These devices are either affixed to the target or to the target's vehicle, in which case, they are known as bumper beepers. The location of the target is then traced by monitoring radio transmissions. The U.S. Supreme Court in U.S. v. Knotts 460 U.S. (1983) upheld the use of scientifically enhanced bumper beepers, or transponder devices. Global positioning systems help pinpoint the exact places frequented by a target. Bugs that serve as microphones and transmit conversations can be used when the need is for audio surveillance.
Audio surveillance involves listening in on other people's conversations thru electronic means. Such eavesdropping has been termed a "dirty business" by the U.S. Supreme Court as far back as Olmstead v. United States 277 U.S. (1928). The Fourth Amendment jurisprudence of that decision is known as the "place-based" right to privacy. Under Olmstead, warrantless electronic surveillance could easily be launched by any government official over the phone lines or any other open space that is not a private place in a household. Later, however, the case of Katz v. United States 389 U.S. 347 (1967) gave us what is known as the "person-based" right to privacy. Under Katz, a warrant would be required for electronic surveillance even in open spaces as long as the target was making a reasonable effort not to be overheard. Within months of Katz, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 was passed, legislating that authorities apply for a Title III warrant, called an eavesdropping order or ex parte order, issued by a federal judge, and that the standard would be probable cause (a crime has been or is about to be committed). Title III did not adequately cover national security electronic surveillance, however. That was addressed in the Foreign Intelligence Surveillance Act of 1978, which set up a special review court in Washington D.C., and made the standard a proportionality test (the benefits of surveillance outweigh the harms). Current judicial doctrine also stresses the exhaustion test (standard investigatory methods have been exhausted, failed, are reasonably likely to fail, or are too dangerous to try). Audio surveillance is also regulated by legislation.
When places or people are wired for sound, this is called bugging, and it is an entirely different subtype of audio surveillance than telephone taps, pen registers, and trap-and-traces. The U.S. Supreme Court in Dalia v. United States 441 U.S. 238 (1979) found nothing inherently prohibitive in bugging a premises as long as both the surveillance and surreptitious entry were judicially approved. Miniaturized bugging equipment has been part of the gadget arsenal of intelligence work for years. Embassies, for example, are constantly finding new and improved bugs that defeat antibugging devices. Such devices produce a weak signal, or do not even produce any signal (no batteries and no electrical circuits). A radio beam, instead, is aimed at the device, and the intercepted conversation is decoded from vibrations. The technique is similar to laser or particle beam devices which pick up vibrations on glass. New advances in covert bugging technology have evolved even more sophisticated devices, and the trend has been to enable audio surveillance from greater distances when once it had to be accomplished by entry or pinholes in walls or ceilings.
Another type of audio surveillance is consensual, and it is sometimes called penetrative surveillance. This involves the use of informants or an undercover agent provocateur, generally an infiltrator or accomplice-witness who has agreed to be wired in exchange for an immunity deal or a witness protection plan. Use of informants and undercover operations are especially dangerous and have their own theoretical principles, but the main concern is avoiding entrapment, or inducing an individual to commit a crime for which they would not normally contemplate. Of the vast amount of case law in this area, one of the most interesting is Hoffa v. U.S. 385 U.S. 293 (1966) which took up the issue of whether law enforcement agents must identify themselves in undercover operations as intelligence operatives are often required to do when recruiting informants. Settled law on the matter requires police admonish their informants to act naturally and try not to draw out any particular incriminating statements that would constitute the functional equivalent of an interrogation. Consensual surveillance takes a great deal of skill. Since one or more of the parties have consented, this type of surveillance requires no judicial authorization. It is the same as if one of the parties of a telephone conversation consented to a recording.
A final type of surveillance, separate from the visual, moving, and audio types, is contact surveillance. The target is painted or stained with a tracer preparation which gives off a fluorescent glow when viewed through an ultraviolet device. Tracer preparations are weatherproof, cannot wash off, and are easily tranferred to any persons or objects the target comes in contact with. The technique is similar to many anti-shoplifting and anti-counterfeiting schemes. It is used alone when visual, moving, and audio surveillance is not possible, and the same methods used to acquire the target with a tracer in the first place are the same methods used in planting a miniature audio surveillance device on the target's clothing or body.
In summary, the purposes and rules for domestic surveillance may differ from the purposes and rules for foreign surveillance, but the theoretical principles and techniques are the same. In the United States, at least, surveillance for intelligence (prevention) purposes is regulated almost as much as surveillance for investigation (prosecution) purposes. The rules are somewhat looser when the target is a foreign citizen in U.S. territory, or the target is suspected of being under the influence of a foreign entity. Some nations, even Western democracies such as Great Britain and Germany, extend a great deal of discretion to their intelligence services in monitoring their own citizens, but U.S. history has followed a different path. FISA, mentioned previously, authorizes surveillance of U.S. citizens only if the activities drawing suspicion are not activities normally protected by the First Amendment of the Constitution. FISA is the main exception to the rule that surveillance for intelligence purposes should be regulated the same as surveillance for law enforcement purposes. The only other exception might be the grand jury subpoena process, which issues upon any bona fide investigation and forces disclosure of information which might be used for intelligence purposes. In many ways, FISA functions as a check on this abuse of the grand jury process.
PEN REGISTER AND TRAP-AND-TRACE WIRETAPPING
Wiretapping is the covert interception of communications content from telephones, telegraphs, fax machines, computers, pagers, wireless devices, and any circuit or packet switch. It is distinguishable from eavesdropping, which traditionally involves interceptions of complete conversations, at distinct locations, and the personal or interpersonal behavior of persons. Wiretapping can, but does not normally, record all the content of a conversation, and this is considered less invasive. Examples are techniques which record only the numbers called out or the numbers called in, and these are called a pen register and trap and trace, respectively. Pen registers capture outgoing data, while trap and trace devices capture incoming data, and the technology to use them is built-in to all cell phones and computer systems.
Trends in the Use of Pen Register and Trap/Trace
|Technically, a pen register and trap/trace are classified as "non-content" surveillance tools, as opposed to ordinary wiretaps which collect content. Thus, they are subject to a lesser legal standard which only requires the intercept be "relevant" to an ongoing investigation. They capture information about—rather than the contents of—communications. This includes the phone numbers of incoming and outgoing telephone calls, the time, date, and length of those calls, the “to” and “from” addresses of email messages, records about instant message conversations, non-content data associated with social networking identities, and at least some information about the websites you visit. As the ACLU graph at left indicates, their use has increased substantially in recent years (600% in the last decade). Pen/trap taps enable what is called traffic analysis, or how a target moves about. The use of pen/trap surveillance is much higher than the use of full wiretaps, although all we really know is information that the Justice Dept. discloses. Some groups, like the Electronic Frontier Foundation, alleges that the NSA is monitoring all electronic communications.|
In the United States, a pen register or trap and trace is authorized by the Electronic Communications Privacy Act of 1986 and similar statutes at the state level. Full wiretaps are authorized by Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and a number of similar statutes at the state level. Wiretapping is also authorized under the Foreign Intelligence Surveillance Act of 1978. Pen registers are used the most frequently, according to charts maintained by the Electronic Privacy Information Center (2003). Close to 5000 pen registers are authorized a year, but this figure only includes state level activity. Second in frequency of usage is the trap and trace, numbering about 2500 per year, again at the state level. Pen registers and trap and traces are more likely to receive continuing authorization beyond the mandatory 30-day limitation on full wiretaps. Title III wiretaps number about 600 a year for federal authorities and about 750 a year for state authorities. FISA wiretaps number about 850 a year. The number of pen registers is increasing dramatically because of the USA Patriot Act of 2001 which made all Internet communications subject to pen register authority. Programs like CARNIVORE that the FBI use are a type of pen register that can record all outgoing emails and web sites visited, but is designed to only record header information and not the message body.
Full wiretaps are only approved for the investigation of certain crimes specified in the 1968 Act. Authorization for a full wiretap requires proof of probable cause (a crime has or is about to be committed) as well as proof of exhaustion (other investigatory methods have been exhausted, failed, are reasonably likely to fail, or are too dangerous to try). Authorization for a full wiretap under FISA presumably requires a proportionality test (the benefits outweigh the harm) and a bona fide intelligence purpose, however the actual criteria that FISA uses is classified. Authorization for a pen register or trap and trace requires relevance to an ongoing investigation, and in these cases, as with computers and mobile communications devices, a judicial order is given to a service provider instructing them to cooperate with authorities.
Wiretap law, in its Title III version, contains its own exclusionary rule. First of all, no wiretap can be used for quasi-judicial or administrative law purposes. This ensures that wiretaps remain a tool of last resort for serious crimes only, mainly felonies or activities that resemble organized crime, espionage, or terrorism. Secondly, any application for a wiretap must be reviewed and signed by a politically accountable official before going on to a judge for approval. The case of U.S. v. Giordano 416 U.S. 505 (1974) made it perfectly clear that any rubber stamping of a political official's signature by their assistant would result in suppression of evidence. Thirdly, there are documentation and notification requirements. Judges must be kept informed of progress, and upon completion, a full wiretap requires notifying all parties, at the time of charging with an offense, that their conversations have been intercepted. A judge, however, has discretion to decide whether other parties should be notified, and which other parties should be notified. The practical effect of this rule has implications for the number of civil lawsuits filed by other parties over the shock at finding out they were wiretapped. Finally, there are executional and minimization requirements. At the time of executing a wiretap order, a professional effort should be made by officials to minimize the interception of irrelevant conversation. This goes beyond the standard protections afforded to privileged communication, such as that between husband and wife, and requires officials to ensure that irrelevant portions of the conversation are deleted and the most relevant portions are retained, all without being done in a manner that suggests the recording has been altered or fabricated in any prejudicial way. Rules of evidence also subject wiretap information to the authentication rule and best evidence rule.
Unlike wiretap law, the pen register and trap and trace statute has no provision requiring notice to persons whose communications have been intercepted. Nor is there any provision for judicial supervision of a pen register in progress. Also, there is also no minimization rule. These concerns, along with the fact it is nearly impossible to get exact numbers on the federal use of pen registers, are a cause of alarm for privacy advocates, especially those who fear the government has or will place a pen register on an Internet portal, backbone site, or search engine.
All forms of electronic surveillance, wiretapping included, have the same purpose and effect. A conversation or parts of a conversation are secretly recorded without the consent of at least one of the parties involved. Certain cases involving crimes such as bribery, extortion, and kidnapping routinely have the consent of victims to implement a voluntary wiretap, but in other cases, such as espionage and terrorism, wiretapping is normally done without consent. Few would argue that wiretapping is an essential tool for criminal investigators and intelligence gatherers when serious crimes need to be investigated or prevented. Yet, others worry that the rules, requirements, and limitations on wiretapping are not sufficient to protect privacy. Use of informants has a long history of usage that is recognized in constitutional discussions of privacy, but the writers of the Constitution could never have foreseen the consequences for privacy and the implications for its invasion with modern technology. It may be true that standards such as relevant to an ongoing investigation are vague and unclear, but it is also apparent that some safeguards are in place and more safeguards are likely to be forthcoming in the future as both laws and technology develop.
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Last updated: Sept. 29, 2012
Not an official webpage of APSU, copyright restrictions apply, see Megalinks in Criminal Justice
O'Connor, T. (2012). "Eavesdropping and Wiretapping," MegaLinks in Criminal Justice. Retrieved from http://www.drtomoconnor.com/3000/3000lect04.htm.