18 USC 2518

Electronic Surveillance — Title III Applications

The Application should meet the following requirements:

1. It must be prepared by an applicant identified as a law enforcement or investigative officer. The application must be in writing, signed by the United States Attorney, an Assistant United States Attorney, and made under oath. It must be presented to a Federal district court or court of appeals judge and be accompanied by the Department's authorization memorandum signed by an appropriate Department of Justice official. The application may not be presented to a magistrate. See 18 U.S.C. §§ 2510(9) and 2516(1); see also In re United States of America, 10 F.3d 931 (2d Cir. 1993), cert. denied, 115 S. Ct. 64 (1994).
2. It must identify the type of communications to be intercepted. "Wire communications" include "aural transfers" (involving the human voice) that are transmitted, at least in part by wire, between the point of origin and the point of reception, i.e., telephone calls. 18 U.S.C. § 2510(1). This includes cellular phones, cordless phones, voice mail, and voice pagers, as well as traditional land-line telephones. "Oral communications" are communications between people who are together under circumstances where the parties enjoy a reasonable expectation of privacy. 18 U.S.C. § 2510(2). An "electronic communication" most commonly involves digital-display paging devices or fax machines, but also includes electronic mail, computer transmissions, and, in some cases, satellite transmissions. It does not include tone-only paging devices, tracking devices (as defined by 18 U.S.C. 3117), or electronic funds transfer information. 18 U.S.C. § 2510(12).
3. It must identify the specific Federal offenses for which there is probable cause to believe are being committed. The offenses that may be the predicate for a wire or oral interception order are limited to only those set forth in 18 U.S.C. § 2516(1). In the case of electronic communications, a request for interception may be based on any Federal felony, pursuant to 18 U.S.C. § 2516(3).
4. It must provide a particular description of the nature and location of the facilities from which, or the place where, the interception is to occur. An exception to this is the roving interception provision set forth in 18 U.S.C. § 2518(11)(a) and (b). The specific requirements of the roving provision are discussed in USAM 9-7.111. Briefly, in the case of a roving oral interception, the application must show, and the court order must indicate, that it is impractical to specify the location(s) where oral communications of a particular named subject are to be intercepted. 18 U.S.C. § 2518(11)(a)(ii) and (iii). In the case of a roving wire or electronic interception, the application must state, and the court order must indicate, that a particular named subject is using various and changing facilities for the purpose of thwarting electronic surveillance. 18 U.S.C. § 2518(11)(b)(ii) and (iii). The accompanying DOJ document authorizing the roving interception must be signed by an official at the level of an Assistant Attorney General (including Acting AAG) or higher. 18 U.S.C. § 2518(11)(a)(i) and (b)(i).
5. It must identify, with specificity, those persons known to be committing the offenses and whose communications are to be intercepted. In United States v. Donovan, 429 U.S. 413 (1977), the Supreme Court stated that 18 U.S.C. § 2518(1)(b)(iv) requires the government to name all individuals whom it has probable cause to believe are engaged in the offenses under investigation, and whose conversations it expects to intercept over or from within the targeted facilities. It is the Department's policy to name as potential subjects all persons whose involvement in the alleged offenses is indicated. See United States v. Ambrosio, 898 F. Supp. 177 (S.D.N.Y. 1995); United States v. Marcy, 777 F. Supp. 1400 (N.D. Ill. 1991); United States v. Martin, 599 F.2d 880 (9th Cir.), cert. denied, 441 U.S. 962 (1979).
6. It must contain a statement affirming that normal investigative procedures have been tried and failed, are reasonably unlikely to succeed if tried, or are too dangerous to employ. 18 U.S.C. § 2518(1)(c). The applicant may then state that a complete discussion of attempted alternative investigative techniques is set forth in the accompanying affidavit.
7. It must contain a statement affirming that the affidavit contains a complete statement of the facts--to the extent known to the applicant and the official approving the application--concerning all previous applications that have been made to intercept the oral, wire, or electronic communications of any of the named subjects or involving the target facility or location. 18 U.S.C. § 2518(1)(e).
8. In an oral (and occasionally in a wire or electronic) interception, it must contain a request that the court issue an order authorizing investigative agents to make all necessary surreptitious and/or forcible entries to install, maintain, and remove electronic interception devices in or from the targeted premises (or device). When effecting this portion of the order, the applicant should notify the court as soon as practicable after each surreptitious entry.
9. It should, when requesting the interception of wire communications, contain a request that the authorization and court order apply not only to the target telephone number(s) identified therein, but to any changed telephone number(s) subsequently assigned to the same cable, pair, and binding posts used by each targeted land-line telephone. With regard to a cellular telephone, the request should be that the authorization and order apply not only to any identified telephone number, but also to any changed telephone number or any other telephone subsequently assigned to the instrument bearing the same electronic serial number as the targeted cellular phone. The application should also request that the authorization apply to background conversations intercepted in the vicinity of the target phone while the phone is off the hook or otherwise in use. See United States v. Baranek, 903 F.2d 1068 (6th Cir. 1990).
10. It must contain, when concerning the interception of wire communications, a request that the court issue an order directly to the service provider, as defined in 18 U.S.C. § 2510(15), to furnish the investigative agency with all information, facilities, and technical assistance necessary to facilitate the ordered interception. 18 U.S.C. § 2511(2)(a)(ii). The application should also request that the court direct service providers and their agents and employees not to disclose the contents of the court order or the existence of the investigation. Id.
11. It should contain a request that the court's order authorize the requested interception until all relevant communications have been intercepted, not to exceed a period of thirty (30) days from the earlier of the day on which the interception begins or ten (10) days after the order is entered. 18 U.S.C. § 2518(5).
12. It should contain a statement affirming that all interceptions will be minimized in accordance with Chapter 119 of Title 18, United States Code, as described further in the affidavit. 18 U.S.C. § 2518(5).

Electronic Surveillance — Title III Affidavits

The Affidavit must meet the following requirements:

1. It must be sworn and attested to by an investigative or law enforcement officer as defined in 18 U.S.C. § 2510(7). Department policy precludes the use of multiple affiants except when it is indicated clearly which affiant swears to which part of the affidavit, or states that each affiant swears to the entire affidavit. If a State or local law enforcement officer is the affiant in a Federal electronic surveillance affidavit, the enforcement officer must be deputized as a Federal officer of the agency responsible for the offenses under investigation. 18 U.S.C. § 2516(1).

2. It must identify those persons who will be the focus of the surveillance, describe the facility or location that is the subject of the proposed electronic surveillance, and list the alleged offenses. 18 U.S.C. § 2518(1).

3. It must establish probable cause that the named subjects are using the targeted facility or location to commit the stated offenses. (When the application requests authorization to intercept oral communications within a location, the FBI requires that a diagram of the target location be submitted as an attachment to the affidavit.) Any background information needed to understand fully the instant investigation should be set forth briefly at the beginning of this section. The focus, however, should be on recent and current criminal activity by the subjects, with an emphasis on their use of the target facility or location. This is generally accomplished through information from a confidential informant, cooperating witness, or undercover agent, combined with pen register or telephone toll information for the target phone or physical surveillance of the target premises. It is Department of Justice policy that pen register or telephone toll information for the target telephone, or physical surveillance of the targeted premises, standing alone, is generally insufficient to establish probable cause. Probable cause to establish criminal use of the facilities or premises requires independent evidence of use of the facilities or premises in addition to pen register or surveillance information (e.g., informant or undercover information.) It is preferable that all informants used in the affidavit to establish probable cause be qualified according to the "Aguilar-Spinelli" standards (Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969)), rather than those set forth in the Supreme Court decision of Illinois v. Gates, 463 U.S. 1237 (1983). On rare occasions, criminal use of the target facilities or premises may be established solely by an extremely high volume of calls to, or meetings with, other known or suspected co-conspirators that coincide with incidents of known illegal activity. It is also the Department's policy that the affidavit reflect use of the target facility or premises within twenty-one days of the date on which the Department authorizes the filing of the application. While the subjects' use of the target facilities or premises may be updated to within twenty-one days through pen register information and/or physical surveillance, historical information (viz., information older than six months from the date of the application), combined with pen register information or physical surveillance alone, is generally insufficient to establish probable cause under existing Department policy.

4. It must explain the need for the proposed electronic surveillance and provide a detailed discussion of the other investigative procedures that have been tried and failed, are reasonably unlikely to succeed if tried, or are too dangerous to employ. 18 U.S.C. § 2518(1)(e). This is to ensure that highly intrusive electronic surveillance techniques are not resorted to in situations where traditional investigative techniques would suffice to expose the crime. United States v. Kahn, 415 U.S. 143 (1974). It need not be shown that no other investigative avenues are available, only that they have been tried and proven inadequate or have been considered and rejected for reasons described. See United States v. Castillo-Garcia, 920 F. Supp. 1537 (D. Colo. 1996); United States v. Oriakhi, 57 F.3d 1290 (4th Cir. 1995); United States v. Torres, 901 F.2d 205 (2d Cir.), cert. denied, 498 U.S. 906 (1990); United States v. Clerkley, 556 F.2d 709 (4th Cir. 1977). There should also be a discussion as to why electronic surveillance is the technique most likely to succeed. When drafting this section of the affidavit, the discussion of these and other investigative techniques should be augmented with facts particular to the specific investigation and subjects. General declarations and conclusory statements about the exhaustion of alternative techniques will not suffice.

It is most important that this section be tailored to the facts of the specific case and be more than a recitation of "boiler plate." The affidavit must discuss the particular problems involved in the investigation in order to fulfill the requirement of 18 U.S.C. § 2518(1)(c). The affidavit should explain specifically why other normally utilized investigative techniques, such as physical surveillance or the use of informants and undercover agents, are inadequate in the particular case. For example, if physical surveillance is impossible or unproductive because the suspects live in remote areas or will likely be alerted to law enforcement presence (by counter-surveillance or other means), the affidavit should set forth those facts clearly. If the informants refuse to testify or cannot penetrate the hierarchy of the criminal organization involved, the affidavit should explain why that is so in this particular investigation. If undercover agents cannot be used because the suspects deal only with trusted associates/family, the affidavit must so state and include the particulars. Conclusory generalizations about the difficulties of using a particular investigative technique will not suffice. It is not enough, for example, to state that the use of undercover agents is always difficult in organized crime cases because crime families, in general, deal only with trusted associates. While the affidavit may contain a general statement regarding the impossibility of using undercover agents in organized crime cases, it must also demonstrate that the particular subject or subjects in the instant case deal only with known associates. The key is to tie the inadequacy of a specific investigative technique to the particular facts underlying the investigation. See, e.g., United States v. Uribe, 890 F.2d 554 (1st Cir. 1989); United States v. Ashley, 876 F.2d 1069 (1st Cir. 1989); United States v. Zambrana, 841 F.2d 1320 (7th Cir. 1988); and United States v. Kalustian, 529 F.2d 585 (9th Cir. 1976).

It must contain a full and complete statement of any prior electronic surveillance involving the persons, facilities, or locations specified in the application. This statement should also include the date, jurisdiction, and disposition of previous applications, as well as their relevance, if any, to the instant investigation. The duty to disclose prior applications under 18 U.S.C. § 2518(1)(e) covers all persons named in the application, and not just those designated as "principal targets." United States v. Bianco, 998 F.2d 1112 (2d Cir. 1993), cert. denied, 114 S. Ct. 1644 (1994). In addition to any known prior applications, the agency conducting the investigation should run a check of its electronic surveillance indices. In narcotics investigations, it is the Criminal Division's policy that both the DEA and the FBI conduct an indices check. In joint investigations, all participating agencies should be checked; in all other cases when it is likely that more than one agency may have investigated the subjects, multiple indices checks should likewise be made.

5. It must contain a statement of the period of time for which the interception is to be maintained. The statute provides that an order may be granted for not more than thirty days or until the objectives of the investigation are achieved, whichever occurs first. 18 U.S.C. § 2518(5). If the violations are continuing, facts sufficient to justify interception for the full thirty-day period must be provided, or the court may order monitoring to cease once initial, criminal conversations are intercepted. This may be accomplished by showing, through informant or undercover investigation, pen register analysis, physical surveillance or other law enforcement investigation, that a pattern of criminal activity exists and is likely to continue. If it is clear that the interceptions will terminate after a limited number of days, then the time requested should also be so limited in accordance with the facts of the case.

The statute also provides for a ten-day grace period, intended primarily for the installation of oral monitoring equipment, before the thirty-day period begins to be calculated. This provision may also be used when delays arise in installing monitoring devices used in wire or electronic interceptions.

18 U.S.C. § 2518(5). In either case, the provision is not intended to provide for a regular additional ten-day start-up period; any delays that are encountered should be real and defensible if challenged. The ten-day grace period applies only to the initial installation of equipment, and should not be used in an extension application, in an original application when the equipment is already installed, or in wire interception cases when a pen register permitting almost immediate access is already in place on the target phone. 18 U.S.C. § 2518(5).

Under Rule 45 of the Federal Rules of Criminal Procedure, the thirty-day time period would begin to run on the date after the order was signed, even if the interception started on the same day it was signed. See also United States v. Villegas, 1993 WL 535013 (S.D.N.Y. December 22, 1993)(unreported); United States v. Gerena, 695 F. Supp. 649 (D. Conn. 1988). In an abundance of caution, however, the Department recommends that the thirty-day period be calculated from the date and time that the order is signed. This is particularly so when no delays are encountered which would permit the government to invoke the ten-day grace period allowed by the statute.

6. It must contain a statement affirming that monitoring agents will minimize all non-pertinent interceptions in accordance with Chapter 119 of Title 18, United States Code, as well as additional standard minimization language and other language addressing any specific minimization problems (e.g., steps to be taken to avoid the interception of privileged communications, such as attorney-client communications) in the instant case. (18 U.S.C. § 2518(5) permits non-officer government personnel or individuals acting under contract with the government to monitor conversations pursuant to the interception order. These individuals must be acting under the supervision of an investigative or law enforcement officer when monitoring communications, and the affidavit should note the fact that these individuals will be used as monitors pursuant to 18 U.S.C. § 2518(5).)

When communications are intercepted that relate to any offense not enumerated in the authorization order, the monitoring agent should report it immediately to the Assistant United States Attorney, who should notify the court at the earliest opportunity. Approval by the issuing judge should be sought for the continued interception of such conversations. While 18 U.S.C. §§ 2517(1) and (2) permit use or disclosure of this information without first obtaining a court order, 18 U.S.C. § 2517(5) requires a disclosure order before the information may be used in any proceeding (e.g., before a grand jury).

The statute permits after-the-fact minimization for wire and oral communications when the intercepted communications are in code, or in a foreign language when a foreign language expert is not reasonably available. 18 U.S.C. § 2518(5). In either event, the minimization must be accomplished as soon as practicable after the interception. Such after-the-fact minimization can be accomplished by an interpreter who listens to and minimizes the communications after they have been recorded, giving only the pertinent communications to the supervising agent. The process utilized must protect the suspect's privacy interests to approximately the same extent as would contemporaneous minimization, properly applied. United States v. David, 940 F.2d 722 (1st Cir.), cert. denied, 502 U.S. 989 (1991); United States v. Gambino, 734 F. Supp. 1084 (S.D.N.Y. 1990). After-the-fact minimization provisions should be applied in light of the "reasonableness" standard established by the Supreme Court in United States v. Scott, 436 U.S. 128 (1978).

After-the-fact minimization is a necessity for the interception of electronic communications over a digital-display pager or a fax machine. In such cases, all communications are recorded and then examined by a monitoring agent and/or a supervising attorney to determine their relevance to the investigation. Disclosure is then limited to those communications by the subjects or their confederates that are criminal in nature. See United States v. Tutino, 883 F.2d 1125 (2d Cir. 1989), cert. denied, 493 U.S. 1081 (1990).

7. When the request is to tap a cellular telephone or other portable telephone, or a portable paging device, or to install a bug in an automobile, the affidavit should contain a statement that, pursuant to 18 U.S.C. § 2518(3), interception will occur not only within the territorial jurisdiction of the court in which the application is made, but also outside that jurisdiction (but within the United States), if there is any indication that the target telephone, paging device or vehicle will be taken outside the jurisdiction of the court issuing the electronic surveillance order. The order should authorize such extra-jurisdictional interception, and such order should be sought in the jurisdiction having the strongest investigative nexus to the object in which the monitoring device is installed.

Electronic Surveillance — Title III Orders

The Order must meet the following requirements:

The authorizing language of the order should mirror the requesting language of the application and affidavit, stating that there is probable cause to believe that the named subjects are committing particular Title III predicate offenses (or, in the case of electronic communications, any Federal felony), that they are using the target facility or premises in furtherance thereof, and that normal investigative techniques have been tried and have failed, or are reasonably unlikely to succeed if tried, or are too dangerous to employ. 18 U.S.C. § 2518(3) and (4). The court then orders (again tracking the language of the application and affidavit) that agents of the investigative agency are authorized to intercept wire, oral, or electronic communications over the described facility or at the described premises. Id. The order should also contain language specifying the length of time the interception may be conducted, and, if necessary, authorizing surreptitious and/or forcible entry to effectuate the purpose of the order. Id. The order may also contain language mandating the government to make periodic progress reports (pursuant to 18 U.S.C. § 2518(6)), and ordering the sealing of these as well as the order, application and affidavit. In the case of a roving interception, the court must make a specific finding that the requirements of 18 U.S.C. § 2518(11)(a) and/or (b) have been demonstrated adequately. Any other special requests, such as extra-jurisdictional interception in the case of mobile interception devices, should also be authorized specifically in the order.

The court should also issue a technical assistance order to the communications service provider. 18 U.S.C. § 2518(4). This is a redacted order that requires the telephone company or other service provider to assist the agents in effecting the electronic surveillance. An order to seal all of the pleadings should also be sought at this time.

The above pleadings should be transmitted by the most expeditious means possible to the Office of Enforcement Operations, either by fax, directed to (202) 616-2010 or (202) 616-2038, or by Federal Express or other Department-approved carrier, addressed to the Office of Enforcement Operations' Electronic Surveillance Unit, Suite 900 West, 1001 G. Street, N.W, Washington, D.C. 20001. Prior to mailing, OEO should be contacted at (202) 514-6809 and advised that the material is forthcoming, as well as any special time considerations. Note that it is a violation of Department security regulations to transmit the sensitive information in electronic surveillance requests via E-mail.

It should also be noted that OEO cannot forward a request for authorization to an appropriate Department official for review and approval unless and until a formal, written request for authorization is received from the head of the investigative agency that will be conducting the investigation. Because of the time normally necessary for the Federal investigative agencies to complete their internal review and recommendation process, at least one week should be allowed for such process. The Assistant United States Attorney should ensure that the investigator has contacted his/her agency's headquarters in Washington, D.C., as far in advance as possible so that any problems with the pleadings or the underlying investigation can be resolved as expeditiously as possible.

Spinoff requests (viz., additional applications to conduct electronic surveillance at a new location or over a new facility) are considered original applications and are reviewed in the same manner as described above. Extension requests still need Department approval, but only require review by OEO, and not the investigative agency. While the exigencies of investigative work occasionally make the normally required lead time impossible, the timeliness with which an application is reviewed and authorized is largely under the control of the Assistant United States Attorney handling the case. When coordinating an investigation or planning extension requests, it is important to allow sufficient time for the Title III application to be reviewed by both OEO and, if appropriate, the investigative agency.

Electronic Surveillance — Statutory Authority and Legislative History

The Federal electronic surveillance statutes (commonly referred to collectively as "Title III") were originally enacted as Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. 90-351, 82 Stat. 197 (June 19, 1968)("Title III"), and they have been substantially amended and updated as part of the Electronic Communications Privacy Act of 1986, Pub.L. 99-508, 100 Stat. 1848 (October 21, 1986)("ECPA"), the Communications Assistance for Law Enforcement Act, Pub.L. 103-414, 108 Stat. 4279 (October 24, 1994)("CALEA"), and the Anti-terrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 (April 24, 1996)("Anti-terrorism Act"). These statutes are codified, inter alia, at 18 U.S.C. § 2510, et seq.

A partial legislative history for Title III, ECPA, CALEA, and the Anti-terrorism Act may be found in, respectively: S.Rep. No. 1097, 90th Cong., 2d Sess. (1968), reprinted in 1968

U.S. Code Cong. & Admin. News ("U.S.C.C.A.N.") 2112 (Title III); S.Rep. No. 541, 99th Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 3555 (ECPA); S.Rep. No. 402, 103d Cong., 2d Sess. (1994), reprinted in 1994 U.S.C.C.A.N. 3489 (CALEA); and

H.R. Rep. No. 518, 104th Cong., 2d Sess. (1996), reprinted in ____ U.S.C.C.A.N. ____ (Anti-terrorism Act).