Title III of The Omnibus Crime Control and Safe Streets Act of 1968 (Wiretap Act)
18 U.S.C. §§ 2510-22, as amended by the Electronic Communications Privacy Act (ECPA)(Pub. L. 99-508; 10/21/86), the Communications Assistance to Law Enforcement Act (CALEA)(Pub. L. 103-414; 10/24/94), Antiterrorism and Effective Death Penalty Act of 1996 ("Antiterrorism Act") (Pub. L. 104-132; 4/24/96), USA PATRIOT Act (Pub. L. 107-56; 10/26/01), USA PATRIOT Additional Reauthorization Amendments Act of 2006 (Pub. L. 109-178; (3/9/06), FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008 (Pub. L.110-261; 7/10/2008), FISA Sunsets Extension Act (Pub. L. 112-3; 2/25/11) PATRIOT Sunsets Extension Act of 2011 (Pub. L. 112-14; 5/26/11). These statutes are codified, inter alia, at 18 U.S.C. § 2510, et seq.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, (Pub. L. 90-351; 6/19/68), also known as the "Wiretap Act":
- prohibits the unauthorized, nonconsensual interception of "wire, oral, or electronic communications" by government agencies as well as private parties,
- establishes procedures for obtaining warrants to authorize wiretapping by government officials, and
- regulates the disclosure and use of authorized intercepted communications by investigative and law enforcement officers.
Background. Congress passed Title III in response to congressional investigations and published studies that found extensive wiretapping had been conducted by government agencies and private individuals without the consent of the parties or legal sanction. Congress found that the contents of these tapped conversations and the evidence derived from them were being used by government and private parties as evidence in court and administrative proceedings.
Title III originally covered only "wire" and "oral" communications but was significantly revised by Title I of the ECPA in 1986 to include electronic communications. The ECPA includes two additional titles to protect the privacy of stored communications and regulate the use of "pen register" and "trap and trace" devices. See the ECPA.
The U.S. Supreme Court has held that the Fourth Amendment protection against unreasonable search and seizure extends to the interception of communications and applies to all conversations where an individual has a reasonable expectation of privacy. See Berger v. New York, 388 U.S. 41 (1967) and Katz v. United States, 389 U.S. 347 (1967).
Title III establishes warrant procedures consistent with the Fourth Amendment.
General Provisions. Title III prohibits the intentional actual or attempted:
- disclosure, or
- "procure[ment] [of] any other person to intercept or endeavor to intercept" any wire, oral, or electronic communication.
Exceptions: The Act provides exceptions for operators and service providers for uses "in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service" and for "persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978." 18 U.S.C. § 2511.
The Act also prohibits the use of illegally obtained communications as evidence. 18 U.S.C. § 2515.
Privacy and Other Civil Liberties. Title III requires Federal, state and, other government officials to obtain judicial authorization for intercepting "wire, oral, and electronic" communications such as telephone conversations and e-mails. It also regulates the use and disclosure of information obtained through authorized wiretapping. 18 U.S.C. §§ 2516-18.
- A judge may issue a warrant authorizing interception of communications for up to 30 days upon a showing of probable cause that the interception will reveal evidence that "an individual is committing, has committed, or is about to commit a particular offense" listed in § 2516. 18 U.S.C. § 2518(3).
- A law enforcement or investigating officer may use, disclose to another law enforcement or investigating officer, or disclose during testimony information obtained in authorized wiretapping, provided the use or disclosure "is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure." 18 U.S.C. § 2517.
- Any Federal official who "receives information pursuant to this provision may use that information only as necessary in the conduct of that person’s official duties subject to any limitations on the unauthorized disclosure of such information." 18 U.S.C. § 2517.
Any willful disclosure or use by an investigative or law enforcement officer or governmental entity of information beyond the extent permitted by 18 U.S.C. §2517 is a violation 18 U.S.C. § 2520(g).
Exceptions: An exception to the requirement that government obtain a warrant before intercepting covered communications is provided where:
- "any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State...
- reasonably determines that an emergency situation exists that involves
- immediate danger of death or serious physical injury to any person,
- conspiratorial activities threatening the national security interest, or
- conspiratorial activities characteristic of organized crime
that requires a wire, oral, or electronic communication to be intercepted before an order authorizing such interception can, with due diligence, be obtained, and
- there are grounds upon which an order could be entered under this chapter to authorize such interception."
In such an emergency situation, the Federal government may begin intercepting communications, provided "an application for an order approving the interception is made in accordance with this section within forty-eight hours after the interception has occurred, or begins to occur." In this situation, if the warrant is ultimately denied, the intercepted communications are treated as having been obtained in violation of Title III. 18 U.S.C. § 2518(7).
The federal wiretap laws preempt all state law to the extent that no state may allow access to wire, oral, or electronic communications with less justification than required by federal law. Thus the federal laws establish the minimum privacy protections for all wire, oral or electronic communications that no state may relax. However, states may impose greater requirements upon state investigators and private citizens than those required by federal law. For example, some states may not authorize state investigation access to certain types of communications. Other states may require all parties to a communication to consent to a recording of it, where the federal law requires only one-party consent. Individual state law should be consulted to determine whether state interception of communications is authorized, and if so, what standards should be applied.