Cryptography's Role in Securing the Information Society (1996) / Chapter Skim
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D - An Overview of Electronic Surveillance: History and Current Status
D - An Overview of Electronic Surveillance: History and Current Status
Pages 396-413
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From page 396... ...
D.1.2 Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and the Electronic Communications Privacy Act of 19862 Congress established the statutory authority for law enforcement in 118 U.S.C. Section 2511(4)
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The legislative history of ECPA specifically mentions electronic mail, paging systems, bulletin board systems, and computer-to-computer communications, among other technologies the act was intended to address.3 ECPA defines radio communications, including voice conversations, as electronic, with the exception that voice conversations carried in part over radio and in part through wires or switches (such as cellular telephone calls) are treated as wire communications.4 Some radio communications may be intercepted without penalty.
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From page 398... ...
These include murder, kidnapping, child molestation, organized crime, narcotics offenses, and crimes against national security, among others.10 Before performing electronic surveillance, investigators must obtain a special type of warrant 6Clifford Fishman, personal communication, January 23, 1995. This process can be seen, for example, in the Law Enforcement Communications Act of 1994's extension to cordless telephones of the same Title III protection that applies to cellular telephones.
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. State electronic surveillance laws must designate responsible state officials and courts of comparable stature.
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One of the more intrusive aspects of electronic surveillance, in comparison to physical search and seizure, is the fact that the invasion of privacy continues over a period of time and is likely to intercept many communications that are irrelevant to the investigation. To restrict this invasion of privacy, Title III requires law enforcement officials to perform a procedure known as minimization.
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Evidence may be subject to suppression according to Fourth Amendment standards (such as probable cause) , but ECPA expressly omits electronic communications from the provision that evidence obtained outside Title III procedures is suppressible in court.23 As in the case of oral and wire surveillance, however, state statutes must apply protection at least as stringent as the federal statute.
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The application need not present a statement of facts showing probable cause, but merely the applicant's certification that probable cause exists. In practice, one purpose of obtaining an order is to compel the cooperation of communications service providers and to protect those providers from civil and criminal liability.28 ECPA also governs access to stored wire and electronic communications, such as backup copies of voice mail and electronic mail messages.29 ECPA provides criminal and civil penalties for accessing and obtaining or altering stored communications without permission of the communications service provider or subscriber.
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From page 403... ...
However, requiring the service provider to copy and divulge all of the electronic mail addressed to a subscriber over a period of time likely involves a Title III intercept order.31 Tables D.1 and D.2 provide quantitative data on the scope and scale of electronic surveillance in the United States in recent years. D.1.3 The Foreign Intelligence Surveillance Act In the mid-1970s, Congress undertook several public investigations of controversial domestic surveillance activities by U.S.
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Nevertheless, many of its procedures parallel those of Title III, and evidence gathered properly through FISA surveillance may, in some circumstances, be used in a trial. Like Title III, FISA provides statutory procedures for authorizing electronic surveillance within the United States.
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person is an "agent of a foreign power." The phrase includes persons who engage in, or aid or abet individuals who engage in, espionage, terrorism, or sabotage.37 Each FISA warrant application is signed, under oath, by the applicant, certified by the Secretary of Defense or Deputy Secretary of Defense that it is directed against a bona fide "foreign power" or "agent of a foreign power," reviewed by the Department of Justice and endorsed by the Attorney General, and approved by a judge of the Foreign Intelligence Surveillance Court.38 The warrant application must also identify the type of foreign intelligence information sought; communication media, facilities, and persons to be monitored; devices and procedures to be used, including those for minimization; duration of the order, up to 90 days (or 1 year if the target is a foreign power) ; review of previous surveillance 34Executive Order 12333, Section 2.3(b)
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406 TABLE D.2 Court-ordered Electronic Surveillance, 1984 to 1994 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 No. of orders 802 786 756 673 740 763 872 856 919 976 1,154 authorized a Federal (%)
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AN OVERVIEW OF ELECTRONIC SURVEILLANCE SOURCE: Administrative Office of the U.S. Courts, Wiretap Report for the Period January 1, 1993 to December 31, 1993, U.S.
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person may be Only if known to be an Only with the approval of targeted for wire agent of a foreign the Attorney General intercepts power and a FISA warrant is approved Non-U.S. person may be Only if a FISA warrant is Without restriction targeted for wire approved intercepts related to the same target; and certification that the information cannot be obtained through normal investigative methods.39 Electronic surveillance governed by FISA includes interception of wire, radio, and other electronic communications.
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One set is statutorily mandated by FISA. 40See Kornblum and Jachnycky, "America's Secret Court," 1985, for a description of the Foreign Intelligence Surveillance Court, a list of its members, and a review of the judicial record on the constitutionality of the court and its procedures.
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United States,44 the Court ruled by a 5-4 vote that interception of telephone conversations by federal law enforcement officials using a wiretap did not constitute a search or seizure, because nothing tangible was seized and no premises were entered and searched. The Court concluded that wiretapping was not subject to Fourth Amendment protection against unreasonable search and seizure.
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From page 411... ...
In this ruling, the Court explicitly overturned Olmstead and Goldman and determined that Fourth Amendment protection applies to persons, not merely to places that can be entered and searched. With the Katz decision, law enforcement officials were left with neither bugs nor wiretaps as viable tools for gathering evidence.
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In addition, it required state statutes to be at least as restrictive as Title III.53 Currently, 37 states and the District of Columbia have electronic surveillance statutes.54 At the time the Omnibus Crime Control and Safe Streets Act was passed in 1968, President Johnson strongly objected to Title III, warning that it could lead to governmental abuses of civil liberties.55 However, after an initial flurry of court challenges, a rough consensus has emerged in the nation that wiretapping under the jurisdiction of Title III represents a reasonable compromise between the rights of individuals and the law enforcement needs of the state. In 1986, Congress passed the Electronic Communications Privacy Act.
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This reflected a political compromise among several factors, including the interests of law enforcement, the telecommunications industry, and civil liberties; judicial precedent; and the judgment of Congress that bugging and telephone wiretapping are inherently more sensitive than interception of electronic communications.57 As discussed in Section D.1.2, ECPA also created new regulations for traffic analysis and for retrieval of stored communications. 56For a detailed analysis of ECPA's additions to electronic surveillance law, see Fishman, Cumulative Supplement, 1994, sections 7.21-7.28, 7.32.
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