Electronic Surveillance Laws

 state laws || 2004 enactments || 2005 enactments ||  pending state legislation || warrant procedures
federal laws || contacts

Electronic surveillance is also examined in a brief that is part of NCSL's series, "States Respond to Terrorism," which surveys states' efforts to protect democracy from future terrorist attacks.

Electronic Surveillance involves the traditional laws on wiretapping--any interception of a telephone transmission by accessing the telephone signal itself--and eavesdropping--listening in on conversations without the consent of the parties.

Following the tragedies of September 11, there is growing support to give law enforcement agencies more power to tap into private communications to thwart further acts of terrorism by monitoring private electronic communications. State and federal policymakers face the challenge of balancing security needs via electronic surveillance against the potential erosion of individual privacy.
 

State Laws: Chart

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Federal Laws

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Federal law includes all interstate calls, and there are several sources of authority for electronic surveillance in the U.S.. The Wire and Electronic Communications Interception and Interception of Oral Communications Act (formally known as the "Title III" Wiretap Act, 18 U.S.C §§ 2510-2520,), typically requires a court order issued by a judge who must decide that there is probable cause to believe that a crime has been, is being or is about to be committed. Wiretaps can also be ordered in suspected cases of terrorist bombings, hijackings and other violent activities are crimes. The government can wiretap in advance of a crime being perpetrated. Judges seldom deny government requests for wiretap orders.

Wiretapping of aliens and citizens in the U.S. is allowed under the 1978 Foreign Intelligence Surveillance Act ("FISA", 50 U.S.C 1801 et seq). For U.S. citizens and permanent resident aliens, there must also be probable cause to believe that the person is engaged in activities that "may" involve a criminal violation. Suspicion of illegal activity is not required in the case of aliens who are not permanent residents. No legislative limits on U.S. government electronic eavesdropping carried out overseas.

The Electronic Communications Privacy Act of 1986 ("ECPA", 18 U.S.C 2701), sets standards for access to cellphones, email and other electronic communications and to transactional records (subscriber identifying information, logs, toll records). The pen registers and trap and trace device statute, enacted as part of ECPA. (18 U.S.C 3121 et seq), governs real-time interception of "the numbers dialed or otherwise transmitted on the telephone line to which such device is attached."

In 1994, Congress adopted the digital telephony law, or Communications Assistance for Law Enforcement Act  ("CALEA", Public Law 103–414, 47 U.S.C. 1001–1010).. CALEA was intended to preserve law enforcement wiretapping capabilities by requiring telephone companies to design their systems to ensure a basic level of government access.

In the wake of the September 11th terrorist attacks, Congress passed legislation significantly broadening the scope of federal electronic surveillance laws.  H. R. 3162 (the USA PATRIOT Act), signed by President Bush on October 26, adds terrorism offenses, computer fraud, and abuse offenses to the list of predicates for obtaining Title III wiretaps.  H.R. 3162 also permits roving wiretaps under the Foreign Intelligence Surveillance Act of 1978 (FISA) in the same manner as they are permitted under Title III wiretaps.  Pursuant to H.R. 3162 intelligence information obtained from wiretaps may be shared with law enforcement, intelligence, immigration, or national security personnel.   Recipients can use the information only in the conduct of their duties and are subject to the limitations in current law of unauthorized disclosure of wiretap information.

H.R. 3162 also expands the use of traditional pen register or trap and trace devices (captures the telephone numbers of incoming callers) so that they apply not just to telephones, but also to Internet communications so long as they exclude "content." These devices may now also be used under FISA without having to show that the telephone covered was used in communications with someone involved in terrorism or intelligence activities that may violate U.S. criminal laws.  Multi-jurisdictional warrants may be obtained for wiretapping purposes, making it easier to track criminals across borders.