Electronic Law and Evidence Flashcards
wire communications
- HUMAN VOICE THROUGH WIRE, cable, or other connection
- Ex: telephone, voice pager
electronic communications
- DATA in whole or part over wire or other means
- Ex: computer data transmissions, fax, email, text
oral communications
- HUMAN VOICE NOT ON WIRE or mechanical means
electronic devices
- any device, other than human ear, that can be used to intercept wire, oral or electronic communications
- Ex: microphones, bugging devices NOT hearing aids
real time intercept
- interception to capture data or conversation AS IT IS BEING TRANSMITTED or as it is happening.
depending on the type of surveillance you may need:
- nothing, no special authority
- consent of someone
- a subpoena
- a court order
- a search warrant
- a title 3 court order
history of title 3:
- olmstead v us: agents tapped suspects phone without his consent, from position off his property. Supreme court ruled no 4th violation
- federal communications act of 1934: congress prohibited wiretapping consent of both parties to conversation
- kats v us: agents placed mic on phone booth. Supreme court ruled 4th amendment violation
- title 3 : congress allowed real time interception of wire and oral communication (wiretap)
what is a title 3 court order?
- a special kind of SEARCH WARRANT which requires:
- an application with details
- pre-approval by US attorney
- final approval by high ranking govt. official
- signed by US district court judge
title 3 is required when:
- wire/electronic
- a nonconsensual
- real time interception
- of wire or electronic communications
title 3 is required when:
- oral
- a nonconsensual
- real time interception
- of oral communications where there’s REP
- using a device
how to get a title 3 court order:
- STEP 1: Application process
- STEP 2: Submitting the application
- STEP 3: Final Step
STEP 1: APPLICATION PROCESS
- For a wire/oral wiretap: officer must state PC that an offense listed in 18 USC 2516 (1) is being committed
- For electronic communications: officer must state PC that a felony is being committed.
- what goes in application: name, location, statement of PC
- good for 30 days
- request for covert entry to install device (DOJ policy)
STEP 2: SUBMITTING THE APPLICATION
- submit to US attorney in your district
- then submit application for final approval to:
- Attorney General
- Deputy Attorney General
- Assistant Attorney General
STEP 3: FINAL STEP
- only a district court judge can issue a title 3 order (no magistrates can issue)
** an AUSA can approve an application for intercepting digital display papers
*** no additional search warrants is required for installation
types of surveillance exempted from title 3:
- oral communications where there’s no REP
- consensual monitoring
oral communications where there’s no REP:
- conversations exposed to the public
- conversations overheard by the naked ear
- conversations in the back of a police vehicle
consensual monitoring:
- consent of one party to conversation - no title 3 required
- face to face consensual monitoring - AUSA advice required (DOJ policy)
DEVICE IN A FIXED LOCATION
DEVICED IN A FIXED LOCATION
a) if fixing the device in snitches REP area, you do not need a warrant to enter and install the device
b) if fixing the device in target’s REP area, you need a search warrant to enter and install the device
c) when the consenting party leaves the room, you must turn your device off (or get a title 3 warrant)
DEVICE LOCATED ON THE CONSENTING PARTY (BODY)
DEVICE LOCATED ON THE CONSENTING PARTY
a) you may record any conversation your consenting party has with the target, without any special authority
excluded forms of communications (not included in title 3):
- tone only pagers
- beepers, transponders, tracking devices
- am/fm radio and television station broadcasts
- citizen band radios
- walkie talkies
- ham radios
- video-only surveillance
