Chapter 14USA Patriot Act,

Foreign Intelligence and Other Types of

Electronic Surveillance Covered by Federal Law"Big Brother in the form of an increasingly powerful

government and in an increasingly powerful private sector will pile the records high with reasons why privacy should give way to national security, to law and order, to efficiency of operation, to scientific advancement and the like." -Justice William O. Douglas

Featured CaseThe Family Business

• Richard Rublowitz, in cooperation with other family members and a doctor began to illegally sell oxycodone.

• The scale of the sales were impressive, between 2008 – 2012 he was able to gamble away more than $900,000 while having no record of legal employment.

• Richard brought his wife and other family members into the scheme.

• DEA agents wiretapped his phone and hotel room. In taped conversations Richard implicated his wife, mother, three sons and various in-laws.

Learning Objectives

• Explain when a reasonable expectation of privacy exists.

• Understand how the 4th Amendment interacts with wiretapping laws.

• Explain how the PATRIOT Act impacts law enforcement.

• Explain how the Wiretap Act of 1968 was modified by FISA.

• List the procedures and use of National Security Letters.

Eavesdropping

• Misplaced Reliance Doctrine– If you are aware someone is listening, the

burden is on you to make sure they are trustworthy.

– There is no need for a warrant if one party consents to a tap or if they are the police.

– This rule covers both persons and devices.

• Conversations to be protected need an expectation of privacy.

Hoffa v. United States

• The government charged Hoffa, an important union official, with violation of the Taft-Hartley Act.

• Critical issue was whether government could place an informant into deliberations of the defendant, even when communications with defense’s lawyers was happening.

• Court ruled that there was no violation of 4th, 5th or 6th Amendment because the conversations were voluntary.

385 US 293 (1966)

• In the Hoffa case the police were allowed to use an informant, but what are the limits?

• If a suspect claims his Miranda rights, can the police use informants to eavesdrop on the defendant?

• Should the police be allowed to use defense attorneys as informants?

Applying the LawLimits on Informants

Electronic Surveillance• Originally cases focused on trespass issues– Did police have to trespass in order to place a

tap?– Wiretaps on public phones required no warrant.

• Gradually standard was changed by courts

• Key became an expectation of privacy, not location of conversation

• Eventually statutes were passed to regulate the procedure

Katz v. United States

• Katz used a pay phone to operate an illegal gambling scheme.

• The police recorded the phone conversations without warrant.

• The Supreme Court excluded the tapes.

• People with a ‘reasonable expectation of privacy’ in their conversations are protected by the 4th Amendment.

• This case overruled past decisions like Olmstead v. United States that relied more on the concept of trespass.

389 US 347 (1967)

• When a person uses e-mail to communicate to others, don’t they also have a reasonable expectation of privacy?

• Should such communications then be protected?

• What limits would be necessary?• What about twitter or posts on a blog?

Applying the LawE-mails

Electronic Surveillance and Wiretap Act of 1968

• What is NOT covered– Consensual taps– Pen Registers – records of outgoing calls– Trap and Trace – caller id records– Calls where no expectation of privacy

(such as to or from an inmate in prison)

• Most (85%) of warrants were for drug cases.– 98% were to tap cell phones

Electronic Surveillance and Wiretap Act of 1968 (cont)

• Wiretap Act– Felony to place an illegal tap– Covers writing, sound, image and data– Illegally gathered evidence is not admissible

• Patriot Act– Extended coverage to more types of

communication – like e-mail and voice mail– Loosened some standards

Electronic Surveillance and Wiretap Act of 1968 (cont)• Applying for a Tap– Must be to a federal judge and only for

certain crimes• Covers most felonies• Patriot Act expanded to cover terrorism

• Application– Identify who is applying– Senior officer who has approved application– Complete facts about case – probable

cause• Details of crime• Where, who and how intercept to be carried out

Electronic Surveillance and Wiretap Act of 1968 (cont)

• Application Continued– Alternatives to wiretap exhausted– How long the tap will last– Record of any previous taps and results

• Taps can be renewed

• Emergency taps– Can place tap immediately– Retroactively apply for warrant to tap

Electronic Surveillance and Wiretap Act of 1968 (cont)

• Must make record of tap and keep for 10 years

• Target of tap must be notified within 90 days of the end of tap

• Strict Exclusionary Rule applies

Dalia v. United States

• Police in order to place a tap had to covertly enter a residence.

• The Supreme Court ruled police may enter homes secretly to place such taps.

• Information gathered by such taps are admissible.

441 US 238 (1979)

US v. US District Court (Keith)

• Three suspects were charged with destroying government property.

• The police had placed taps without warrants, claiming an exception under the OCC&SS Act of 1968, as it was a plot to overthrow the government.

• The Supreme Court disagreed and ruled 8-0 requiring in domestic cases that the 4th Amendment be applied.

407 US 297 (1972)

• At what point does the government have the right to suspend constitutional rights?

• In the Keith case it involved plans to dynamite offices of the CIA.

• Recently in Boston after the marathon bombing some called for the suspect to be treated as a terrorist.

• What line can we draw and what criteria can we use?

Applying the LawWhen is it an Exception?

Stored Electronic Communication

• In 1986 Congress passed the Electronic Communication Privacy Act (ECPA).

• Allowed police access to stored information by either subpoena or search warrant.– If accessing immediately or from home

generally need a warrant.– If stored only need a subpoena.

Foreign Intelligence Surveillance Act of 1978

(FISA)• Overall – Allows taps to combat foreign powers– U.S. Patriot Act expanded it further– Overseen by 11 judge panel appointed by

Supreme Court– Electronic Surveillance Warrant• First reviewed by Attorney General• Covers more targets now and for longer times

– Can place taps for 1 year sometimes w/out warrants

Foreign Intelligence Surveillance Act of 1978

(FISA)• FISA Warrants– Identity of federal officer filing application– Identity of target– Facts that would sustain belief of danger

• Target being a ‘foreign power’

– Minimization procedure– What information is sought– Certification by Presidential Assistant– How surveillance will be done– Previous applications and surveillance– How long current tap will run

Foreign Intelligence Surveillance Act of 1978

(FISA)• Physical Searches– Allowed after 1994

• Judicial Review–Must show falls under a ‘foreign power

or agent’– Very broadly defined

• Other Devices– For trap and trace – Need less probable cause

Foreign Intelligence Surveillance Act of 1978

(FISA)• Business Records– Can file request with FISA judges to get

records– No probable causes are required– Still must show the records relate to or are

in custody/control of a foreign power

National Security Letters

• National Security Letters– Do not require judicial review– Simply a request from law enforcement to

3rd party holding a suspect’s records– Requires 3rd party to keep request for

records secret– But must involve a foreign counter

intelligence case