NCSL Brief: Electronic Surveillance

(This is one of a series of briefs written by NCSL, "Protecting Democracy: States Respond to Terrorism.")

Electronic Surveillance

By Janna Goodwin, Robert D. Boerner and Susan Frederick

Wiretaps ordered by federal and state authorities on cellular telephones, pagers, fax machines and e-mail increased by nearly 20 percent two years ago. Following the tragedies of September 11, support is increasing for giving law enforcement even more power to tap into private communications to thwart further acts of terrorism. State and federal policymakers face the challenge of balancing the need to prevent future crimes by granting more electronic surveillance power against the potential erosion of individual privacy.

State Actions

The federal Wire and Electronic Communications Interception and Interception of Oral Communications Act (formally known as the "Title III" Wiretap Act) allows recording telephone calls and other electronic communications with the consent of at least one party to the call. Of the 48 states that have laws addressing electronic surveillance, most have followed the "one party consent" standard. At least 16 states, however, require "two-party" (or "all-party") consent. It is illegal in all 50 states to record a conversation to which you are not a party, do not have consent to tape and could not naturally overhear (eavesdropping), with certain exceptions for law enforcement agencies or officials.

Most state wiretapping laws regulate the use of electronic recording equipment. A majority of states prohibit the use of eavesdropping or intercepting devices--such as pen registers that record numbers dialed on a telephone--and track and trace instruments that capture telephone numbers of incoming callers. At least 21 states have laws outlawing the use of hidden cameras or video-recorders in private places. Audio portions of videotapes are treated under the same state surveillance laws.

Fourteen state laws specifically apply to cellular and cordless calls. The federal Electronic Communications Privacy Act was amended in 1986 and 1994 to expand the definition of electronic communications to include cellular and cordless telephone conversations. Under the law, those conversations can be recorded with the consent of one party. States deal with computer and electronic communications in a similar manner.

Law Enforcement. Most state laws have specific provisions on wiretapping and eavesdropping by law enforcement officials. They can tap into a telephone where there is "probable cause" to believe unlawful activity is being conducted by obtaining a court order. Unlawful activity must involve specified felonies, such as murder, solicitation to commit murder, kidnapping, offenses involving bombings, and conspiracy to commit any of these crimes. The court order must limit the surveillance to communications related to the unlawful activity and to a specific amount of time, usually 30 days.

Some state laws vary in how officials can obtain taps. In Connecticut, for example, law enforcement must apply for taps to a panel of judges, who must agree unanimously that there is probable cause and make certain no more than 35 orders have been issued by all panels in the past year. Pennsylvania has perhaps the most stringent restrictions. Surveillance is prohibited in the state without consent of all parties, even for law enforcement agencies, with the exception of endangerment to a police officer.

The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures of property. The U.S. Supreme Court established in Katz vs. United States that the Fourth Amendment not only governs the seizure of tangible items, but also extends to the interception and recording of oral statements. The difficulty for both state and federal courts lies in determining what expectations of privacy are constitutionally "justifiable." Several court cases make it clear that states can regulate surveillance by 1) requiring probable cause as to person, crime, conversation and place or facility of communication; and 2) limiting the duration of surveillance. State and federal litigation in this area is likely to continue.

Federal Actions

In the wake of the September 11 attacks, Congress passed legislation that significantly broadens the scope of federal electronic surveillance laws. The USA PATRIOT Act adds terrorism, computer fraud and abuse to the list of offenses for obtaining Title III wiretaps. The law also permits roving wiretaps under the Foreign Intelligence Surveillance Act of 1978 in the same way they are permitted under Title III wiretaps. Intelligence information obtained from wiretaps may be shared with law enforcement, intelligence, immigration or national security personnel. Recipients can use the information only in the conduct of their duties and are subject to the limitations in current law regarding unauthorized disclosure of wiretap information.

The act also expands the use of traditional pen register or trap and trace devices (that capture the telephone numbers of incoming callers) so that they apply not only to telephones, but also to Internet communications as long as they exclude "content." These devices now may also be used without having to show that the telephone covered was used in communications with someone involved in terrorism or intelligence activities that may violate criminal laws. Multijurisdictional warrants may be obtained for wiretapping, making it easier to track criminals across international borders.

The USA PATRIOT Act also allows federal officials to obtain a wiretapping order that allows them to follow a suspect to any telephone the person uses. Previous law permitted wiretaps only on specified telephone lines. The act also permits people to sue if the federal government discloses information gained through surveillance and wiretapping powers. Because most state electronic surveillance laws are modeled on federal acts, state legislators now may need to consider whether to amend their own state laws to include these additional provisions.

Selected References

Menden, Kristina. "Federal and State Statutory Limitations on the Interception of Telecommunications." Columbus, Ohio: Ohio Research Memorandum, March 20, 1997.

The Reporters Committee for Freedom of the Press. "Can We Tape?" Arlington, Va., 2000.
http://www.rcfp.org/taping/index.html.

Contacts for More Information

Janna Goodwin and Robert D. Boerner
NCSL--Denver
(303) 856-1525, ext. 153 and 238
janna.goodwin@ncsl.org
bob.boerner@ncsl.org

Susan Frederick
NCSL--Washington, D.C.
(202) 624-3566
susan.frederick@ncsl.org

Other NCSL Resources:

Other NCSL Briefs "States Respond to Terrorism"

NCSL's Protecting Democracy Page

NCSL's 2002 Legislative Session Home Page