We live in a technology-centered era with all types of gadgets and devices. It is also a time of increased surveillance as law enforcement cracks down on crime.

Wiretapping is a common tool that is used to gather evidence and is often used as the basis for a conviction. It can also lead to the dismissal of the case if such laws are violated.

If think that you may be the subject of an investigation and your phone or devices are wiretapped, you need to secure legal counsel as soon as possible. You need a good criminal law attorney who can advise you of your rights under federal and state laws, help you protect your privacy, and aid you in navigating the complex court system.

It isn’t easy and it is rarely straightforward. You should never try to go it alone, there are too many ways it can go very wrong very quickly.

The Litvak Law Firm can help.

What is Wiretapping?

A wiretap is a process that investigators employ to gather evidence by listening to a suspect’s phone conversations. The term was coined long before wireless communication when agents would physically tap the wire, or cut into the wire, which transmitted the conversation between phones. This allowed them to monitor the conversation and communications of individuals suspected of committing crimes. 

The result can be very compelling evidence that can be used to convict.

Wiretaps are used in investigating all types of crimes, including murder, drug dealing, kidnapping, and drug trafficking as well as white-collar crimes. In the past it was used by the Government very effectively against the mafia. 

18 U.S. Code § 2516 – Authorization for interception of wire, oral, or electronic communications provides detailed guidance for oral and wire intercepts as part of a federal investigation. It includes an extensive list of crimes with guidance for conducting surveillance to obtain evidence.

With the emergence of digital and wireless communication, called cell phone surveillance, the methods have changed, but the end result is still the same. 

Bottom line, there are laws that allow law enforcement to listen to your phone conversations and digital communications – and they can convict you using information obtained from such surveillance.

Wiretapping and Cell Phone Surveillance

Like wiretapping, cell phone surveillance can record communications, but it is different in the additional information that it collects. Cellular records can also disclose GPS location information. A Title 3 wiretap intercepts and records live calls and other types of communication like email and text.

Investigators can also get a warrant for a cellular tower that is near a crime scene. They can see all phones that used that tower to determine the time, location, and numbers called during the relevant period. Using this information police may be able to identify a suspect, however, only the number, time, date, location, and the number called or texted will be provided, not the content of communications. This information can be the basis for probable cause determination, which is then used to get a warrant for a wiretap. 

Cell Phone Surveillance of a Physical Phone

The cell phone itself can be the device that provides useful information to law enforcement because there is a lot of information that can be gathered from examining such a device. Investigators can obtain metadata about past locations of the phone, calls made, texts and emails sent, and even internet activity, including social media.

Police are required to obtain a warrant before viewing the contents of a cellular phone seized at the time of an arrest. If you have been arrested or are being questioned, police may ask for your consent to search your phone. You may and should decline such requests. This does not mean that the police will never get into your phone. It just means that you have slowed down the process. They can get a warrant and use special software that law enforcement has that will extract specific data from the phone. It can get the phone numbers of calls you have made or received, the numbers and content of texts, social media information, messaging apps content and senders/receivers, GPS location info, and photos (and the GPS data attached to them).

Your cell phone can hold a lot of information and it can incriminate you.

What is a One Party Consent State?

Each state has laws about recording someone when they have not given their consent. Some states are two-party states meaning that both parties must be aware and consent that they are being recorded. Other states are one-party states which means that only one party has to be aware that the conversation is being recorded.

The laws of one-party states do make an exception when the recording takes place in place or area with the expectation of privacy, such as a locker room or bathroom. To secretly record under these circumstances is illegal.

The other exception that the law makes is when the police or the government is trying to secretly listen to conversations and record them. The law requires that law enforcement have a warrant and a court order to record someone in this manner.

Title III of The Omnibus Crime Control and Safe Streets Act of 1968 (Wiretap Act)

The Title III of The Omnibus Crime Control and Safe Streets Act of 1968 (Wiretap Act) was passed by Congress after several published studies and congressional investigations revealed that government agencies and private individuals had been conducting extensive wiretapping without the parties’ consent or without a warrant or other legal authorization. The recordings were being used in court as evidence and in administrative proceedings.

In 1967, the US Supreme Court determined that Fourth Amendment protection against unreasonable search and seizure applies to intercepting communication. They determined that any and all conversations are protected where the person has a reasonable expectation of privacy.

Title III laid out the procedures for a warrant, as established by the Fourth Amendment, as well as prohibited the attempted or actual use, procurement, interception, or disclosure of oral, wire, or electronic communication by any other person.

This is the original law and it only covered oral and wire communications and was updated in 1986.

Electronic Communications Privacy Act of 1986 (ECPA)

The Wiretap Act was updated in 1986 to include computer, electronic, and digital communications in the 18 U.S.C. §§ 2510-2523 – Electronic Communications Privacy Act of 1986 (ECPA). While the Wiretap Act covered hard phone lines, digital and electronic communication was not covered.

The ECPA protects oral, wire, and electronic communication during the time that they are being made, while they are in transit, and while they are stored on a computer. This includes telephone conversations, email messages, and stored data.

The Act separated types of information collected or obtained and required one of three ways the law enforcement agent could get authorization – the type of authorization was dependent upon the type of information:

  • Subpoena
  • Special court order
  • Search warrant

The reasoning behind the levels of authorization for certain types of information was that certain materials required greater privacy protection when the privacy interests were greater.

There were more amendments to the USA Patriot Act of 2001.

New York Wiretapping Laws

Under New York Penal Law – Article 250 – Offenses Against the Right to Privacy, the issue of wiretapping and surveillance is addressed.

New York is a one-party state, so only one party must be aware that they are being recorded. These laws clarify what is lawful and unlawful in regard to surveillance and obtaining communications, which include postal mail.

Requirements for a Wiretap Warrant

Under New York law several steps must be followed to get a wiretap warrant:

  1. The application for a state wiretap must be authorized by the Attorney General, Assistant Attorney General, or the principal prosecuting attorney of any state.
  1. A statutory statement of information must accompany each application. This statement is very specific and must include:
    1. The agent and/or agency that is applying for the wiretap
    2. A statement of facts
    3. An account of other techniques used in the investigation to obtain the information but failed
    4. The time period for the intended interception. This cannot exceed 30 days. However, reapplications can be made to request extensions.
    5. A statement of facts that details all applications that were authorized previously
    6. For extension application of a previous application, a statement of facts detailing the results to date
  1. A statement of necessity or exhaustion must be provided. This means that the agency is required to convince the courts that the wiretap is necessary because all other methods used to collect information have not provided the information that law enforcement needs. Some of the techniques that law enforcement may use to “exhaust” before applying for a wiretap include:
    1. Tracking devices
    2. Going through the suspect’s garbage
    3. Tracking cars that crossed the borders recently at a certain location
    4. Physical surveillance
    5. Photographing cars to determine the registration information
    6. Taking photos of suspects
    7. Confidential informants 
  1. These are intercepted communication that law enforcement agents are typically not allowed to listen to. They include:
    1. Conversations between a wife and husband
    2. Conversations with insurance
    3. Conversations with medical providers
    4. Conversations with lawyers
    5. Conversations with members of the clergy such as pastors, ministers, etc.
    6. Conversations that are not relevant to the investigation
  1. Law enforcement must give the court ongoing reports regarding the authorized objective.
  1. A wiretap cannot last longer than 30 days, so once the agency had gotten the information it is looking for the wiretap must be terminated. In the event that more information must be obtained, the agency can submit a new application.
  1. The information obtained as a result of the wiretap must be made available to the judge who issued the search warrant who will then seal the records.

Wiretap Evidence Defenses

There are several defenses that your attorney might use when you are facing a charge that is supported by a wiretap:

  • No Probable Cause to Obtain the Search Warrant
  • Unreliable investigation before Obtaining the Search Warrant
  • Challenge the application for the wiretap
  • 4th Amendment violation
  • Attack the exhausting requirements
  • Examine the legal process

If you find that you are being wiretapped or in the middle of a wiretap communication, you need to get good legal representation fast. Call Mr. Litvak of the Litvak Law Firm at (718) 989-2908. He will talk to you about your case and ensure that your rights are protected. Call today for your free consultation.