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Title III Applications for Electronic Surveillance

Posted by Dmitry Gorin | Jan 28, 2025

Title III of The Omnibus Crime Control and Safe Streets Act of 1968, commonly known as the Wiretap Act, lays out proper rules for electronic surveillance in the United States.

Its primary goal is to protect individuals' privacy by prohibiting the unauthorized interception of wire, oral, or electronic communications. However, it also provides a clear and legal pathway for federal and state law enforcement officials to engage in electronic surveillance under carefully outlined circumstances, ensuring that the process is transparent and understood by all.

Title III Applications for Electronic Surveillance

This act strikes a delicate balance between individual privacy rights and the interests of public safety. It does so by imposing strict standards for the use of surveillance tactics, ensuring that your privacy is protected and any surveillance is conducted responsibly.

Title III applications must be prepared by an applicant identified as a law enforcement or investigative officer. The application must be in writing, signed by the United States Attorney, and made under oath.

It must be presented to a federal district court judge and be accompanied by the department's authorization memorandum signed by an appropriate official and a copy of the most recent Attorney General's Order designating that official to authorize Title III applications. The application may not be presented to a magistrate.

It must identify the type of communications to be intercepted. "Wire communications" include "aural transfers" (human voice) that are transmitted, at least in part by wire, between the point of origin and the point of reception, i.e., telephone calls.

This includes cellular phones, cordless phones, voice mail, and traditional landline telephones. "Oral communications" are communications between people who are together under circumstances where the parties enjoy a reasonable expectation of privacy. "Electronic communications" include text messages, email, Internet transmissions, faxes, etc.

Suppose you are under investigation or facing criminal charges as a result of electronic surveillance of your behaviors and/or communications. In that case, you may have legal recourse if government officials violate these standards in any way. Violating Title III can lead to the suppression of evidence, dismissal of charges, and civil liability for the government.

What Does Federal Law Say?

18 U.S. Code 2516 - Authorization for interception of wire, oral, or electronic communications says -

"(1) The Attorney General, Deputy Attorney General, Associate Attorney General, Assistant Attorney General, Acting Assistant Attorney General, Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in the Criminal Division or National Security Division specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction.

Such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation or a Federal agency having responsibility for the investigation of the offense as to which the application is made when such interception may provide or has provided evidence of…"

What are the Requirements for Governmental Applications?

To conduct electronic surveillance, law enforcement officials must strictly adhere to the procedures outlined in Title III to ensure that surveillance is used responsibly and lawfully while minimizing potential abuse or intrusion into personal privacy. The following are key elements that applications for electronic surveillance under Title III must satisfy:

  • Judicial Authorization: A court order, commonly referred to as a wiretap warrant, is an absolute prerequisite for conducting electronic surveillance under the Wiretap Act. The application for such an order must be submitted to a federal or state judge authorized to issue it.
  • Probable Cause: The application must establish probable cause to believe that an individual is committing, has committed, or is about to commit a specific offense listed under the statute. Additionally, probable cause must extend to the belief that relevant communications concerning the crime will be intercepted through surveillance.
  • Restricted Duration: A wiretap order cannot be indefinite. It is limited to a maximum duration of 30 days, with specific instructions to minimize the interception of non-relevant communications. Extensions can be requested, but each extension must meet the same stringent procedural standards as the original application.
  • Exhaustion of Alternative Methods: Law enforcement must demonstrate that traditional investigative methods, such as physical surveillance or confidential informants, have either failed, are unlikely to succeed, or would pose an unreasonable risk without the use of electronic surveillance.
  • Specificity of Target and Communication: The application must clearly identify the target of surveillance, the type of communication to be intercepted, and the location of the interception when feasible.
  • Minimization Efforts: Title III mandates "minimization" procedures, which require law enforcement to limit the interception of conversations unrelated to the investigation. This means that if a conversation is overheard that is not relevant to the investigation, it should not be recorded or used as evidence. Any irrelevant communication acquired through surveillance must not be used or disclosed.
  • Emergency Exceptions: The act includes narrowly defined exceptions for cases involving immediate danger of death or severe physical harm, national security threats, or organized crime conspiracies. Even in such emergencies, the government must apply for a judicial order within 48 hours of initiating surveillance.
  • Federal Offenses. It must identify the specific federal offenses for which there is probable cause to believe are being committed. The offenses that may be the predicate for a wire or oral interception order are limited to only those set forth in 18 U.S.C. 2516(1). In the case of electronic communications, a request for interception may be based on any federal felony, pursuant to 18 U.S.C. 2516(3).

What are Related Federal Laws?

18 U.S. Code Chapter 119, wire and electronic communications interception and interception of oral communications, has numerous related federal statutes, including the following:

  • 18 U.S.C. 2510 - Definitions.
  • 18 U.S.C. 2511 - Interception and disclosure of wire, oral, or electronic communications prohibited.
  • 18 U.S.C. 2512 - Manufacture, distribution, possession, and advertising of wire, oral, or electronic communication intercepting devices prohibited.
  • 18 U.S.C. 2513 - Confiscation of wire, oral, or electronic communication intercepting devices.
  • 18 U.S.C. 2515 - Prohibition of use as evidence of intercepted wire or oral communications.
  • 18 U.S.C. 2516 - Authorization for interception of wire, oral, or electronic communications.
  • 18 U.S.C. 2517 - Authorization for disclosure and use of intercepted wire, oral, or electronic communications.
  • 18 U.S.C. 2518 - Procedure for interception of wire, oral, or electronic communications.
  • 18 U.S.C. 2519 - Reports concerning intercepted wire, oral, or electronic communications.
  • 18 U.S.C. 2520 - Recovery of civil damages authorized.
  • 18 U.S.C. 2521 - Injunction against illegal interception.
  • 18 U.S.C. 2522 - Enforcement of the Communications Assistance for Law Enforcement Act.
  • 18 U.S.C. 2523 - Executive agreements on access to data by foreign governments.

Leveraging Errors in Title III Applications as a Defense Strategy

While Title III creates a legal structure for warranted electronic surveillance, procedural errors or constitutional violations in the application process can significantly undermine the government's case because they constitute a violation of a defendant's rights.

These flaws provide a critical avenue of defense for individuals facing criminal charges for being subjected to surveillance. Common errors in Title III applications include:

  • Insufficient Probable Cause: If a wiretap application fails to meet the threshold for probable cause, any resulting evidence may be deemed inadmissible. For instance, generalized allegations or unsupported suspicions are rarely sufficient to meet this threshold in court.
  • Failure to Minimize: Failing to comply with minimization requirements often leads to the collection of irrelevant or privileged communications, such as those between a defendant and their attorney. Evidence obtained under these circumstances may violate constitutional protections, rendering it inadmissible.
  • Unauthorized Extensions: Extending a wiretap order without re-establishing probable cause or failing to adhere to the 30-day limit is a procedural violation. This oversight can jeopardize the legitimacy of the entire surveillance operation.
  • Improper Use of Emergency Provisions: Abuse of the emergency exception-such as beginning surveillance without genuinely qualifying circumstances or failing to obtain judicial approval within the 48-hour window-can result in suppression of the intercepted communications.

Challenging the Evidence in Court

If there are procedural violations or constitutional concerns, an experienced federal criminal defense attorney can file a motion to suppress the evidence obtained from the surveillance. Under the "exclusionary rule," evidence gathered through unlawful surveillance is inadmissible in court.

The defense attorney may also argue that subsequent evidence derived from illegal surveillance ("fruit of the poisonous tree") should be excluded. If the prosecution relies heavily on the evidence obtained from the surveillance, this may even be sufficient to have the charges dismissed. For more information, contact our federal criminal defense law firm, Eisner Gorin LLP, based in Los Angeles.

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About the Author

Dmitry Gorin

Dmitry Gorin is a State-Bar Certified Criminal Law Specialist, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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