Criminal Procedure for the Criminal Justice Professional 11th Edition

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Criminal Procedure for the Criminal Justice
Professional 11th Edition

• John N. Ferdico
• Henry F. Fradella
• Christopher Totten

Searches for Electronically-Stored Information
(ESI) andElectronic Surveillance Chapter 5
Prepared by Tony Wolusky
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Electronically Stored Information (ESI)

• To insure compliance with the Fourth Amendment's
  particularity requirement, officers should
  specify the following in their applications for
  search warrants of ESI
• the crimes for which evidence is being sought
• the reasons why there is probable cause to
  believe the computer will contain such evidence
• the dates and/or time frames that are relevant to
  the investigation and
• a relevant search strategy in practical,
  non-technical terms to ensure that the search
  does not become a general rummaging expedition as
  opposed to one with particularly-defined
  parameters.

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Electronic Surveillance Warrants
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Electronic Surveillance

• Electronic surveillance refers to searches
  conducted using wiretaps, bugs, or other devices
  to overhear conversations or obtain other kinds
  of information.
• They are a relatively recent concern of criminal
  and constitutional law.
• The Constitution gives little guidance for
  balancing privacy interests against the need for
  effective law enforcement in the area of
  electronic surveillance.

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Early Developments in Electronic Interceptions Law

• The U.S. Supreme Courts first electronic
  eavesdropping case was Olmstead v. United States
  (1928).
• It held that wiretapping was not covered by the
  Fourth Amendment because a conversation was not
  tangible.
• The focus changed from a property approach to a
  privacy approach in 1967, with Katz v. United
  States.
• Electronic surveillance does fall within the
  realm of the Fourth Amendment

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Omnibus Crime Control and Safe Streets Act of 1968

• Title III of the Omnibus Crime Control and Safe
  Streets Act attempts to balance the need to use
  electronic surveillance for effective law
  enforcement against the need to protect
  individuals privacy rights through judicial
  supervision of all aspects of electronic
  surveillance and establishment of warrant
  procedures.

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Omnibus Crime Control and Safe Streets Act of
1968 Terminology

• Electronic Communication Any transfer of
  signs, signals, writing, images, sounds, data, or
  intelligence of any nature transmitted in whole
  or in part by a wire, radio, electromagnetic,
  photo-electronic or photo-optical system that
  affects interstate or foreign commerce but does
  not include (A) any wire or oral communication
  (B) any communication made through a tone-only
  paging device (C) any communication from a
  tracking device . . . or (D) electronic funds
  transfer information stored by a financial
  institution in a communications system used for
  the electronic storage and transfer of funds. 18
  U.S.C. 2510(12).

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Omnibus Crime Control and Safe Streets Act of
1968 Terminology

• Aural Transfer "A transfer containing the human
  voice at any point between and including the
  point of origin and the point of reception." 18
  U.S.C. 2510(18).
• Oral Communication Any oral communication
  uttered by a person exhibiting an expectation
  that such communication is not subject to
  interception under circumstances justifying such
  expectation, but such term does not include any
  electronic communication. 18 U.S.C. 2510(2).

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Omnibus Crime Control and Safe Streets Act of
1968 Terminology

• Wire Communication Any aural transfer made in
  whole or in part through the use of facilities
  for the transmission of communications by the aid
  of wire, cable, or other like connection between
  the point of origin and the point of reception
  (including the use of such connection in a
  switching station) furnished or operated by any
  person engaged in providing or operating such
  facilities for the transmission of interstate or
  foreign communications or communications
  affecting interstate or foreign commerce and such
  term includes any electronic storage of such
  communication. 18 U.S.C. 2510(1).

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Omnibus Crime Control and Safe Streets Act of
1968 Terminology

• Intercept "The aural or other acquisition of
  the contents of any wire, electronic, or oral
  communication through the use of any electronic,
  mechanical, or other device. 18 U.S.C.
  2510(4).

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Title III and its Applicability to the States

• Title III specifically authorizes state law
  enforcement officials to apply for, obtain, and
  execute orders authorizing or approving the
  interception of wire, oral, or electronic
  communications.
• The procedures are similar to those governing
  federal interception orders.
• The state procedure must also be authorized by a
  separate state statute.

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Remedies for Illegally Obtained Interceptions

• Title III is broader in both scope and remedies
  than the Fourth Amendment. Notably, Title III
  applies to private searches and seizures of wire,
  oral, or electronic communications, not just
  those involving governmental actors. When its
  mandates are violated, Title III provides its own
  statutory remedies.

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Remedies for Violating Title III

• Title III provides for both criminal and civil
  penalties for violations of its commands aimed at
  protecting privacy. For example, United States v.
  Councilman, 418 F.3d 67 (1st Cir. 2005) upheld
  criminal charges against an Internet service
  provider for the illegal interception and copying
  of e-mail messages. Similarly, DIRECTV, Inc. v.
  Rawlins, 523 F.3d 318 (4th Cir. 2008), ordered
  damages for a satellite TV provider against a
  customer who used illegal devices to access
  programming beyond the terms of his subscription.
• Title III contains it own statutory exclusionary
  rule for intercepts that were illegally obtained
  by either government actors or private persons.
  The reach of this exclusionary rule is much
  broader under 18 U.S.C. 2515 than the
  judicially-created exclusionary rule applicable
  to Fourth Amendment violations.

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Interceptions Beyond Scope of Order

• When law enforcement officers intercept
  communications that relate to offenses other than
  those specified in the interception order, the
  government may use the evidence of these other
  crimes only if another application is made to a
  court as soon as practicable for a
  determination that the interception complied with
  Title III requirements. See United States v.
  Angiulo, 847 F.2d 956 (1st Cir. 1988).

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Standing to Object

• Any aggrieved person may move to suppress the
  contents of or evidence derived from oral or wire
  intercepts that were obtained in violation of
  Title III in either a state or federal
  proceeding.
• An aggrieved person means a person who was a
  party to any intercepted wire or oral
  communication or a person against whom the
  interception was directed. 18 U.S.C. 2510(11).

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Exemptions from Title III

• Types of electronic communications are not
  covered by Title III include
• Cases of willful and voluntary disclosure
• Certain cases of eavesdropping
• Consent surveillance
• Provider exception
• Computer trespasser exception
• Public access exception
• Pen registers, trap and trace devices, and
  tracking devices
• E-mail, voicemail, and video surveillance

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The Foreign Intelligence Surveillance Act (FISA)
of 1978

• FISA authorizes and regulates the electronic
  surveillance of foreign powers and their agents
  within the United States. FISA
• Does not regulate U.S. governmental intelligence
  operations outside of the United States.
• Permits federal agents to conduct electronic
  surveillance and physical searches for national
  defense purposes.
• Authorizes physical searches of "premises,
  information, material, or property used
  exclusively by, or under the open and exclusive
  control of, a foreign power or powers."

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Approving FISA Applications

• FISA applications are reviewed by the Foreign
  Intelligence Surveillance Court (FISC).
• The President, through the U.S. Attorney General,
  is also authorized to approve FISA applications.
• Challenges to FISA applications are done in
  Franks proceedings.

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Approving FISA Applications

• If, on the basis of the application, the judge
  makes the required findings, the judge may issue
  an interception order. Pursuant to 18 U.S.C.
  2518(4), the order must specify
• the identity of the person, if known, whose
  communications are to be intercepted
• the nature and location of the communications
  facilities as to which, or the place where,
  authority to intercept is granted
• a particular description of the type of
  communication sought to be intercepted, and a
  statement of the particular offense to which it
  relates
• the identity of the agency authorized to
  intercept the communications, and of the person
  authorizing the application and
• the period of time during which such interception
  is authorized, including a statement as to
  whether or not the interception shall
  automatically terminate when the described
  communication has been first obtained.