9-7.000 - Electronic Surveillance (original) (raw)

9-7.010 - Introduction

This chapter contains Department of Justice policy on the use of electronic surveillance. The Federal electronic surveillance statutes (commonly referred to collectively as "Title III") are codified at 18 U.S.C. § 2510, et seq. Because of the well-recognized intrusive nature of many types of electronic surveillance, especially wiretaps and "bugs," and the Fourth Amendment implications of the government's use of these devices in the course of its investigations, the relevant statutes (and related Department of Justice guidelines) provide restrictions on the use of most electronic surveillance, including the requirement that a high-level Department official specifically approve the use of many of these types of electronic surveillance prior to an Assistant United States Attorney obtaining a court order authorizing interception.

Chapter 7 contains the specific mechanisms, including applicable approval requirements, for the use of wiretaps, "bugs" (oral interception devices), roving taps, video surveillance, and the consensual monitoring of wire or oral communications, as well as emergency interception procedures and restrictions on the disclosure and evidentiary use of information obtained through electronic surveillance.

Attorneys in the Criminal Division's Electronic Surveillance Unit of the Office of Enforcement Operations are available to provide assistance concerning both the interpretation of Title III and the review process necessitated thereunder. The Electronic Surveillance Unit has developed for Department attorneys a user-friendly DOJNet site that contains training materials and sample Title III documents for review. Interceptions conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, which is codified at 50 U.S.C. § 1801, et seq., are specifically excluded from the coverage of Title III. See 18 U.S.C. § 2511(2)(a)(ii), (2)(e), and (2)(f).

[revised January 2020]

9-7.100 - Authorization of Applications for Wire, Oral, and Electronic Interception Orders—Overview and History of Legislation

To understand the core concepts of the legislative scheme of Title III, one must appreciate the history of this legislation and the goals of Congress in enacting this comprehensive law. By enacting Title III in 1968, Congress prohibited private citizens from using certain electronic surveillance techniques. Congress exempted law enforcement from this prohibition, but required compliance with explicit directives that controlled the circumstances under which law enforcement's use of electronic surveillance would be permitted. Many of the restrictions upon the use of electronic surveillance by law enforcement agents were enacted in recognition of the strictures against unlawful searches and seizures contained in the Fourth Amendment to the United States Constitution. See, e.g., Katz v. United States, 389 U.S. 347 (1967). Still, several of Title III's provisions are more restrictive than what is required by the Fourth Amendment. At the same time, Congress preempted State law in this area, and mandated that States that sought to enact electronic surveillance laws would have to make their laws at least as restrictive as the Federal law.

One of Title III's most restrictive provisions is the requirement that Federal investigative agencies submit requests for the use of certain types of electronic surveillance (primarily the non-consensual interception of wire and oral communications) to the Department of Justice for review and approval before applications for such interception may be submitted to a court of competent jurisdiction for an order authorizing the interception. Specifically, in 18 U.S.C. § 2516(1), Title III explicitly assigns such review and approval powers to the Attorney General, but allows the Attorney General to delegate this review and approval authority to a limited number of high-level Justice Department officials, including Deputy Assistant Attorneys General for the Criminal Division ("DAAGs"). The DAAGs review and approve or deny proposed applications to conduct "wiretaps" (to intercept wire [telephone] communications, 18 U.S.C. § 2510(1)) and to install and monitor "bugs" (the use of microphones to intercept oral [face-to-face] communications, 18 U.S.C. § 2510(2)). It should be noted that only those crimes enumerated in 18 U.S.C. § 2516(1) may be investigated through the interception of wire or oral communications. On those rare occasions when the government seeks to intercept oral or wire communications within premises or over a facility that cannot be identified with any particularity, and a "roving" interception of wire or oral communications is therefore being requested, the Assistant Attorney General or the Acting Assistant Attorney General for the Criminal Division must be the one to review and approve or deny the application. (See the roving interception provision at 18 U.S.C. § 2518(11), discussed at JM 9-7.111.)

In 1986, Congress amended Title III by enacting the Electronic Communications Privacy Act of 1986. Specifically, Congress added "electronic communications" as a new category of communications whose interception is covered by Title III. Electronic communications are non-voice communications made over a network in or affecting interstate commerce, and include text messages, electronic mail ("email"), facsimiles ("faxes"), other non-voice Internet traffic, and communications over digital-display pagers. See 18 U.S.C. § 2510(12).

Although the 1986 amendments permit any government attorney to authorize the making of an application to a Federal court to intercept electronic communications to investigate any Federal felony (18 U.S.C. § 2516(3)), the Department of Justice and Congress agreed informally at the time of ECPA's enactment that, for a three-year period, Department approval would nonetheless be required before applications could be submitted to a court to conduct interceptions of electronic communications. After that period, the Department rescinded the prior approval requirement for the interception of electronic communications over digital-display paging devices, but continued the need for Department approval prior to application to the court for the interception of any other type of electronic communications, including text messages, faxes, emails, and other non-voice communications over a computer. Applications to the court for authorization to intercept electronic communications over digital-display pagers may be made based solely upon the authorization of a United States Attorney. See 18 U.S.C. § 2516(3).

Because there are severe penalties for the improper and/or unlawful use and disclosure of electronic surveillance evidence, including criminal, civil, and administrative sanctions, as well as the suppression of evidence, it is essential that Federal prosecutors and law enforcement agents clearly understand when Departmental review and approval are required, and what such a process entails. See 18 U.S.C. §§ 2511, 2515, 2518(10), and 2520.

[revised January 2020]

9-7.110 - Format for the Authorization Request

When Justice Department review and approval of a proposed application for electronic surveillance is required, the Electronic Surveillance Unit (ESU) of the Criminal Division's Office of Enforcement Operations will conduct the initial review of the necessary pleadings, which include:

1. The affidavit of an "investigative or law enforcement officer" of the United States who is empowered by law to conduct investigations of, or to make arrests for, offenses enumerated in 18 U.S.C. § 2516(1) or (3) (which, for any application involving the interception of electronic communications, includes any Federal felony offense), with such affidavit setting forth the facts of the investigation that establish the basis for those probable cause (and other) statements required by Title III to be included in the application;
2. The application by any United States Attorney or his/her Assistant, or any other attorney authorized by law to prosecute or participate in the prosecution of offenses enumerated in 18 U.S.C. § 2516(1) or (3) that provides the basis for the court's jurisdiction to sign an order authorizing the requested interception of wire, oral, and/or electronic communications; and
3. The order to be signed by the court authorizing the government to intercept, or approving the interception of, the wire, oral, and/or electronic communications that are the subject of the application.
4. A completed Title III cover sheet that includes the signature of a supervising attorney who reviewed and approved the Title III papers. As of March 19, 2012, Department policy requires that all Title III submissions be approved by a supervising attorney other than the attorney submitting the application. That supervisory attorney must sign the Title III cover sheet, demonstrating that he or she has reviewed the affidavit, application, and draft order included in the submission packet, and that, in light of the overall investigative plan for the matter, and taking into account applicable Department policies and procedures, he or she supports the request and approves of it. The Title III cover sheet, with a space for the supervisor's signature, may be found on ESU's DOJNet site.

[revised January 2020]

9-7.111 - Roving Interception

Pursuant to 18 U.S.C. § 2518(11)(a) and (b), the government may obtain authorization to intercept wire, oral, and electronic communications of specifically named subjects without specifying with particularity the premises within, or the facilities over which, the communications will be intercepted. (Such authorization is commonly referred to as "roving" authorization.) As to the interception of oral communications, the government may seek authorization without specifying the location(s) of the interception when it can be shown that it is not practical to do so. See United States v. Bianco, 998 F.2d 1112 (2d Cir. 1993), cert. denied, 114 S. Ct. 1644 (1994); United States v. Orena, 883 F. Supp. 849 (E.D.N.Y. 1995). An application for the interception of wire and/or electronic communications of specifically named subjects may be made without specifying the facility or facilities over which the communications will be intercepted when it can be shown that there is probable cause to believe that the target subject's actions could have the effect of thwarting interception from a specified facility. 18 U.S.C. § 2518(11)(b)(ii).

When the government seeks authorization for roving interception, the Department's authorization must be made by the Attorney General, the Deputy Attorney General, the Associate Attorney General, an Assistant Attorney General, or an Acting Assistant Attorney General. See 18 U.S.C. § 2518(11)(a)(i) and (b)(i). Further guidance on roving interception may be found on ESU's DOJNet site.

[revised January 2020] [cited in JM 9-7.100]

9-7.112 - Emergency Interception

Title III contains a provision which allows for the warrantless, emergency interception of wire, oral, and/or electronic communications. Specifically, under 18 U.S.C. § 2518(7), the Attorney General (AG), the Deputy Attorney General (DAG), or the Associate Attorney General (AssocAG) may specially designate a law enforcement or investigative officer to determine whether an emergency situation exists that requires the interception of wire, oral, and/or electronic communications before a court order authorizing such interception can, with due diligence, be obtained. As defined by 18 U.S.C. § 2518(7), an emergency situation involves either: (1) immediate danger of death or serious bodily injury to any person; (2) conspiratorial activities threatening the national security interest; or (3) conspiratorial activities characteristic of organized crime. The only situations which will likely constitute an emergency are those involving an imminent threat to life, i.e., a kidnapping or hostage taking. See United States v. Crouch, 666 F. Supp. 1414 (N.D. Cal. 1987)(wiretap evidence suppressed because there was no imminent threat of death or serious injury); Nabozny v. Marshall, 781 F.2d 83 (6th Cir.)(kidnapping and extortion scenario constituted an emergency situation), cert. denied, 476 U.S. 1161 (1986). The emergency provision also requires that grounds must exist under which an order could be entered (viz., probable cause, necessity, specificity of target location/facility) to authorize the interception. Once the AG, the DAG, or the AssocAG authorizes the law enforcement agency to proceed with the emergency Title III, the government then has forty-eight (48) hours, from the time the authorization was granted, to obtain a court order approving the emergency interception. 18 U.S.C. § 2518(7). The affidavit supporting the application for the order must contain only those facts known to the AG, the DAG, or the AssocAG at the time his or her approval was given, and must be accompanied by a written verification from the requesting agency noting the date and time of the authorization. Failure to obtain the court order within the forty-eight-hour period will render any interceptions obtained during the emergency illegal.

Prior to the agency's contact with the AG, the DAG, or the Associate AG, oral approval to make the request must first be obtained from the Assistant Attorney General (AAG) or a Deputy Assistant Attorney General (DAAG) of the Criminal Division. This approval is facilitated by the Office of Enforcement Operation's Electronic Surveillance Unit, which is the initial contact for the requesting United States Attorney's Office and the requesting agency. Once the Electronic Surveillance Unit attorney briefs and obtains oral approval from the AAG or the DAAG, the attorney notifies the agency representative and the Assistant United States Attorney that the Criminal Division recommends that the emergency authorization proceed. The agency then contacts the AG, the DAG, or the AssocAG and seeks permission to proceed with the emergency Title III.

Please contact ESU prior to submitting a request for emergency authorization. In many situations, expedited review of a standard Title III application will better serve the needs of the investigation than would a emergency authorization.

[revised January 2020]

9-7.200 - Video Surveillance—Closed Circuit Television—Department of Justice Approval Required When There Is A Reasonable Expectation of Privacy

Pursuant to Department of Justice Order No. 985-82, dated August 6, 1982, certain officials of the Criminal Division have been delegated authority to review requests to use video surveillance for law enforcement purposes when there is a constitutionally protected expectation of privacy requiring judicial authorization. This authority was delegated to the Assistant Attorney General, any Deputy Assistant Attorney General, and the Director and Associate Directors of the Office of Enforcement Operations.

When court authorization for video surveillance is deemed necessary, it should be obtained by way of an application and order predicated on Fed. R. Crim. P. 41(b) and the All Writs Act (28 U.S.C. § 1651). The application and order should be based on an affidavit that establishes probable cause to believe that evidence of a Federal crime will be obtained by the surveillance. In addition, the affidavit should comply with certain provisions of the Federal electronic surveillance statutes.

Department policy requires that the video surveillance application and order be filed separately from, and not incorporated in, an application and order for electronic surveillance pursuant to 18 U.S.C. § 2518. When appropriate, the same affidavit may be submitted in support of both applications/orders.

[updated January 2020]

9-7.250 - Use and Unsealing of Title III Affidavits

When the government terminates a Title III electronic surveillance investigation, it must maintain under seal all of the Title III applications and orders (including affidavits and accompanying material) that were filed in support of the electronic surveillance. See 18 U.S.C. § 2518(8)(b); In re Grand Jury Proceedings, 841 F.2d 1048, 1053 n.9 (11th Cir. 1988) (although 18 U.S.C. § 2518(8)(b) refers only to "applications" and "orders," "applications" is construed to include affidavits and any other related documentation).

The purpose of this sealing requirement is to ensure the integrity of the Title III materials and to protect the privacy rights of those individuals implicated in the Title III investigation. See S.Rep. No. 1097, _reprinted in_1968 U.S. Code Cong. & Admin. News 2112, 2193-2194. The applications may be unsealed only pursuant to a court order and only upon a showing of good cause under 18 U.S.C. § 2518(8)(b) or in the interest of justice under 18 U.S.C. § 2518(8)(d).

Thus, the government attorney should not attach Title III affidavits or other application material as exhibits to any search warrant affidavit, complaint, indictment, or trial brief. The government attorney may, nevertheless, use information from these materials or the Title III interceptions in documents such as search warrant affidavits, complaints, indictments, and trial briefs. See 18 U.S.C. § 2517(8)(a); 18 U.S.C. § 2517(1) and (2); and S.Rep. No. 1097 at 2188. In using this information, however, the government attorney must use care not to disclose publicly information from the Title III affidavits or interceptions that would either abridge the privacy interests of persons not charged with any crime or jeopardize ongoing investigations.

When Title III materials are sought by defense counsel or other persons and the privacy interests of uncharged persons are implicated by the contents of those materials, the government attorney should seek a protective order pursuant to Rule 16(d)(1), Fed. R. Crim. P., that will forbid public disclosure of the contents of the materials. Likewise, a Rule 16 protective order should be sought to deny or defer discovery of those portions of the affidavits and applications that reveal ongoing investigations when disclosure would jeopardize the success of any such investigation.

[updated January 2020]

9-7.301 - Consensual Monitoring—General Use

Section 2511(2)(c) of Title 18 provides that "It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception...."See United States v. White, 401 U.S. 745 (1971). As such, consensual interceptions need not be made under Title III procedures, interception orders under § 2518 are not available, and should not be sought in cases falling within § 2511(2)(c).

The Fourth Amendment to the U.S. Constitution, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986 (18 U.S.C. § 2510, et seq.), and the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801, et seq.) permit government agents, acting with the consent of a party to a communication, to engage in warrantless interceptions of telephone communications, as well as oral and electronic communications. White, supra; United States v. Caceres, 440 U.S. 741 (1979). Similarly, Title III, by its definition of oral communications, permits Federal agents to engage in warrantless interceptions of oral communications when the communicating parties have no justifiable expectation of privacy. 18 U.S.C. § 2510(2). (No similar exception is contained in the definition of wire communications and, therefore, the nonconsensual interception of wire communications violates 18 U.S.C. § 2511 regardless of the communicating parties' expectation of privacy, unless the interceptor complies with the court authorization procedures of Title III or with the provisions of the Foreign Intelligence Surveillance Act of 1978.) Since such interception techniques are particularly effective and reliable, the Department of Justice encourages their use by Federal agents for the purpose of gathering evidence of violations of Federal law, protecting the safety of informants and undercover law enforcement agents, or fulfilling other compelling needs. While these techniques are lawful and helpful, their use is frequently sensitive, so they must remain the subject of careful self-regulation by the agencies employing them.

The Department developed guidelines for the investigative use of consensual monitoring, which were promulgated most recently by the Attorney General on May 30, 2002. The guidelines do not apply to consensual monitoring of telephone conversations or radio transmissions. It was left to the enforcement agencies to develop adequate internal guidelines for the use of those aspects of this investigative tool. The following guidelines cover the investigative use of devices which intercept and record certain consensual verbal conversations where a body transmitter or recorder or a fixed location transmitter or recorder is used during a face-to-face conversation. In certain specified sensitive situations, under the regulations, the agencies must obtain advance written authorization from the Department of Justice. The guidelines on consensual monitoring set forth in the Attorney General's Memorandum of May 30, 2002, on that subject are contained in JM 9-7.302.

[updated September 2004]

9-7.302 -Consensual Monitoring—Procedures for Lawful, Warrantless Monitoring of Oral Communications

I. DEFINITIONS

The term “oral” means in-person, non-wire or non-electronic communication.

The term "agency" means all of the Executive Branch departments and agencies, and specifically includes United States Attorneys' Offices which utilize their own investigators, and the Offices of the Inspectors General.

The terms "interception" and "monitoring" mean the aural acquisition of oral communications by use of an electronic, mechanical, or other device. Cf. 18 U.S.C. §2510(4).

The term "public official" means an official of any public entity of government, including special districts, as well as all federal, state, county, and municipal governmental units.

The term “federal judge” means Article III and Article IV judges, and the judges of the following Article I courts: the D.C. judiciary, the U.S. Court of Appeals for the Armed Forces, the U.S. Court of Appeals for Veterans Claims, U.S. Bankruptcy Courts, U.S. Tax Courts and the U.S. Court of Federal Claims.

II. NEED FOR WRITTEN AUTHORIZATION

1. Investigations Where Written Department of Justice Approval is Required
   1. A request for authorization to monitor an oral communication without the consent of all parties to the communication must be approved in writing by a Deputy Assistant Attorney General, Criminal Division, U.S. Department of Justice, when it is known that the monitoring concerns an investigation into an allegation of misconduct committed by a Member of Congress, a federal judge, a member of the Executive Branch at Executive Level IV or above (as defined in 5 U.S.C. §§ 5312-5315), or a person who has served in such capacity within the previous two years. In all other investigations involving a Member of Congress or congressional staff, prosecutors must consult with the Public Integrity Section, Criminal Division, U.S. Department of Justice. See JM 9-85.100.
   2. A request for authorization to monitor an oral communication without the consent of all parties to the communication must be approved in writing by the Director of the Office of Enforcement Operations, Criminal Division, U.S. Department of Justice, when it is known that:

(a) the monitoring relates to an investigation of the Governor, Lieutenant Governor, or Attorney General of any State or Territory, or a judge or justice of the highest court of any State or Territory, and the offense investigated is one involving bribery, conflict of interest, or extortion relating to the performance of his or her official duties;

(b) any party to the communication is a member of the diplomatic corps of a foreign country;

(c) any party to the communication is a current or former participant in the Federal Witness Security Program and that fact is known to the agency involved or its officers;

(d) the consenting or nonconsenting person is in the custody of the Bureau of Prisons or the United States Marshals Service; or

(e) the Attorney General, Deputy Attorney General, Associate Attorney General, any Assistant Attorney General, or the United States Attorney in the district where an investigation is being conducted has requested the investigating agency to obtain prior written consent before conducting consensual monitoring in a specific investigation.

In all other cases, approval of consensual monitoring will be in accordance with the procedures set forth in part V. below.

1. Monitoring Not Within Scope of This Section. Even if the interception falls within one of the six categories above, the procedures and rules in this Section do not apply to:
   (1) extraterritorial interceptions;
   (2) foreign intelligence interceptions, including interceptions pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. §1801, et seq.);
   (3) interceptions pursuant to the court-authorization procedures of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended (18 U.S.C. §2510, et seq.);
   (4) routine Bureau of Prisons (BOP) monitoring of oral communications that are not attended by a justifiable expectation of privacy, to include monitoring of conversations on existing BOP systems;[1]
   (5) interceptions of radio communications;
   (6) interceptions of telephone communications;
   (7) monitoring of communications during an interview conducted by a law enforcement officer in the course of his or her official duties, provided that the law enforcement officer consented to the monitoring; and
   (8) monitoring of communications during a Group One Undercover Operation approved by the Criminal Undercover Operations Review Committee (CUORC), pursuant to The Attorney General’s Guidelines on Federal Bureau of Investigation Undercover Operations, § IV.C(2).

1 Monitoring of wire and electronic communications over contraband telephones inside federal prisons must be authorized pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended (18 U.S.C. §2510, et seq.). See Part II.B.(3) above.

III. AUTHORIZATION PROCEDURES AND RULES

1. Required Information. The following information must be set forth in any request to monitor an oral communication pursuant to part II.A.:
   (1) Reasons for the Monitoring. The request must contain a reasonably detailed statement of the background and need for the monitoring.
   (2) Offense. If the monitoring is for investigative purposes, the request must include a citation to the principal criminal statute involved.
   (3) Danger. If the monitoring is intended to provide protection to the consenting party, the request must explain the nature of the danger to the consenting party.
   (4) Location of Devices. The request must state where the monitoring device will be hidden: on the person, in personal effects, or in a fixed location.
   (5) Location of Monitoring. The request must specify the location and primary judicial district where the monitoring will take place. A monitoring authorization is not restricted to the original district. However, if the location of monitoring changes, notice should be promptly given to the approving official. The record maintained on the request should reflect the location change.
   (6) Time. The request must state the length of time needed for the monitoring. Initially, an authorization may be granted for up to 90 days from the day the monitoring is scheduled to begin. If there is the need for continued monitoring, extensions for additional periods of up to 90 days may be granted. In special cases (e.g., "fencing" operations run by law enforcement agents or long-term investigations that are closely supervised by the Department's Criminal Division), authorization for up to 180 days may be granted with similar extensions.
   (7) Names. The request must give the names of persons, if known, whose communications the department or agency expects to monitor and the relation of such persons to the matter under investigation or to the need for the monitoring.
   (8) Attorney Advice. The request must state that the facts of the surveillance have been discussed with the United States Attorney, an Assistant United States Attorney, or the previously designated Department of Justice attorney responsible for a particular investigation, and that such attorney advises that the use of consensual monitoring is appropriate under this Section (including the date of such advice). The attorney must also advise that the use of consensual monitoring under the facts of the investigation does not raise the issue of entrapment. Such statements may be made orally. If the attorneys described above cannot provide the advice for reasons unrelated to the legality or propriety of the consensual monitoring, the advice must be sought and obtained from an attorney of the Criminal Division of the Department of Justice designated by the Assistant Attorney General in charge of that Division. Before providing such advice, a designated Criminal Division attorney shall notify the appropriate United States Attorney or other attorney who would otherwise be authorized to provide the required advice under this paragraph.
   (9) Renewals. A request for renewal authority to monitor oral communications must contain all the information required for an initial request. The renewal request must also refer to all previous authorizations and explain why an additional authorization is needed, as well as provide an updated statement that the attorney advice required under paragraph (8) has been obtained in connection with the proposed renewal.
2. Written Requests. Unless a request is of an emergency nature, it must be in written form and contain all of the information set forth above. Emergency requests in cases in which written Department of Justice approval is required may be made by telephone to the Director or an Associate Director of the Criminal Division's Office of Enforcement Operations, or to the Assistant Attorney General, the Acting Assistant Attorney General, or a Deputy Assistant Attorney General for the Criminal Division, and should later be reduced to writing and submitted to the appropriate headquarters official as soon as practicable after authorization has been obtained. An appropriate headquarters filing system is to be maintained for consensual monitoring requests that have been received and approved in this manner. Oral requests must include all the information required for written requests as set forth above.
3. Authorization. Authority to engage in consensual monitoring in situations set forth in part II.A. of this Section may be given by the Attorney General, the Deputy Attorney General, the Associate Attorney General, the Assistant Attorney General or Acting Assistant Attorney General in charge of the Criminal Division, a Deputy Assistant Attorney General in the Criminal Division, or the Director or an Associate Director of the Criminal Division's Office of Enforcement Operations. Requests for authorization will normally be submitted by the headquarters of the department or agency requesting the consensual monitoring to the Office of Enforcement Operations for review.
4. Emergency Monitoring. If an emergency situation requires consensual monitoring at a time when none of the individuals identified in part III.B. above cannot be reached, the authorization may be given by the head of the responsible department or agency, or his or her designee. Such department or agency must then notify the Office of Enforcement Operations as soon as practicable after the emergency monitoring is authorized, but not later than three working days after the emergency authorization.
   The notification shall explain the emergency and shall contain all other items required for a nonemergency request for authorization set forth in part III.A. above.

IV. SPECIAL LIMITATIONS

When a communicating party consents to the monitoring of his or her oral communications, the monitoring device may be concealed on his or her person, in personal effects, or in a fixed location. Each department and agency engaging in such consensual monitoring must ensure that the consenting party will be present at all times when the device is operating.

In addition, each department and agency must ensure: (1) that no agent or person cooperating with the department or agency trespasses while installing a device in a fixed location, unless that agent or person is acting pursuant to a court order that authorizes the entry and/or trespass, and (2) that as long as the device is installed in the fixed location, the premises remain under the control of the government or of the consenting party. See United States v. Yonn, 702 F.2d 1341, 1347 (11th Cir.), cert denied, 464 U.S. 917 (1983) (rejecting the First Circuit's holding in United States v. Padilla 520 F.2d 526 (1st Cir. 1975), and approving use of fixed monitoring devices that are activated only when the consenting party is present). But see United States v. Shabazz, 883 F.Supp. 422 (D.Minn. 1995).

Outside the scope of this Memorandum are interceptions of oral, nonwire communications when no party to the communication has consented. To be lawful, such interceptions generally may take place only when no party to the communication has a justifiable expectation of privacy—for example, burglars, while committing a burglary, have no justifiable expectation of privacy. Cf. United States v. Pui Kan Lam, 483 F.2d 1202 (2d. Cir. 1973), cert. denied, 415 U.S. 984 (1974) —or when authorization to intercept such communications has been obtained pursuant to Title III or the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. § 2510, et seq.) or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. § 1801, et seq. Each department or agency must ensure that no communication of any party who has a justifiable expectation of privacy is intercepted unless proper authorization has been obtained.

V. PROCEDURES FOR CONSENSUAL MONITORING WHERE NO WRITTEN APPROVAL IS REQUIRED

Prior to receiving approval for consensual monitoring from the head of the department or agency or his or her designee, a representative of the department or agency must obtain advice that the consensual monitoring is both legal and appropriate from the United States Attorney, an Assistant United States Attorney, or the Department of Justice attorney responsible for a particular investigation. The advice may be obtained orally from the attorney. If the attorneys described above cannot provide the advice for reasons unrelated to the legality or propriety of the consensual monitoring, the advice must be sought and obtained from an attorney of the Criminal Division of the Department of Justice designated by the Assistant Attorney General in charge of that Division. Before providing such advice, the designated Criminal Division attorney shall notify the appropriate United States Attorney or other attorney who would otherwise be authorized to provide the required advice under this paragraph.

Even in cases in which no written authorization is required because they do not involve the sensitive circumstances discussed above, each agency must continue to maintain internal procedures for supervising, monitoring, and approving all consensual monitoring of oral communications. Approval for consensual monitoring must come from the head of the agency or his or her designee. Any designee should be a high-ranking supervisory official at headquarters level, but in the case of the FBI may be a Special Agent in Charge or Assistant Special Agent in Charge.

Similarly, each department or agency shall establish procedures for emergency authorizations in cases involving non-sensitive circumstances similar to those that apply with regard to cases that involve the sensitive circumstances described in part III.D., including obtaining follow-up advice of an appropriate attorney as set forth above concerning the legality and propriety of the consensual monitoring.

Records are to be maintained by the involved departments or agencies for each consensual monitoring that they have conducted. These records are to include the information set forth in part III.A. above.

VI. GENERAL LIMITATIONS

This Section relates solely to the subject of consensual monitoring of oral communications except where otherwise indicated. This Section does not alter or supersede any current policies or directives relating to the subject of obtaining necessary approval for engaging in nonconsensual electronic surveillance or any other form of nonconsensual interception.

[cited in JM 9-7.301]

[updated June 2018]

9-7.400 - Defendant Motion or Discovery Request for Disclosure of Defendant Overhearings and Attorney Overhearings

In response to a defendant's motion or discovery request alleging unlawful electronic surveillance of the defendant, the government should ask the court to require the defendant to provide descriptive biographical data and a specific time period within which the alleged surveillance was conducted, in order to assist government agencies in making an accurate and expeditious identification of any surveillance activity. It is important to keep in mind that it is the province of either the court or the defendant to establish the parameters of the time period to be searched. If the government is unsuccessful in persuading either the defendant or the court to limit the time period of the search, the search conducted will encompass the time frame from the date of the motion or order to as far back as records exist. This is a very costly and time-consuming process, which should be avoided, if possible, by procuring a narrow time limit for the search.

[updated April 2020]

9-7.500 - Prior Consultation with the Computer Crime and Intellectual Property Section of the Criminal Division (CCIPS) for Applications for Pen Register and Trap and Trace Orders Capable of Collecting Uniform Resource Locators (URLs)

In 2001, the USA PATRIOT Act (P.L. 107-56) amended the Pen Register and Trap and Trace Statute (pen/trap statute), 18 U.S.C. § 3121 et seq., to clarify that courts may issue pen/trap orders to collect the non-content information associated with Internet communications. One issue that has been raised in this regard is whether a pen register order may be used to collect (URLs), the terms that a person uses to request information on the World Wide Web (e.g., www.cybercrime.gov/PatriotAct.htm). Because of privacy and other concerns relating to the use of pen register orders in this fashion, use of pen registers to collect all or part of a URL is prohibited without prior consultation with CCIPS. Among the factors that should be considered in deciding whether to apply for such a pen register are (1) the investigative need for the pen register order, (2) the litigation risk in the individual case, (3) how much of any given URL would be obtained, and (4) the impact of the order on the Department's policy goals.

Consultation with CCIPS can help resolve these issues, as well as ensuring that the contemplated use of a pen register would be consistent with the Deputy Attorney General's May 24, 2002 Memorandum on "Avoiding Collection and Investigative Use of 'Content' in the Operation of Pen Registers and Trap and Trace Devices."

This policy does not apply to applications for pen register orders that would merely authorize collection of Internet Protocol (IP) addresses, even if such IP addresses can be readily translated into URLs or portions of URLs. Similarly, this policy does not apply to the collection, at a web server, of tracing information indicating the source of requests to view a particular URL using a trap and trace order.

No employee of the Department will use the pen register authority to collect URLs without first consulting with the CCIPS of the Criminal Division. Absent emergency circumstances, such an employee will submit a memorandum to CCIPS that contains (a) the basic facts of the investigation, (b) the proposed application and order, (c) the investigative need for the collection of URLs, (d) an analysis of the litigation risk associated with obtaining the order in the context of the particular case, and (e) any other information relevant to evaluating the propriety of the application. In an emergency, such an employee may telephone CCIPS at (202) 514-1026 or, after hours at (202) 514-5000, and be prepared to describe the above information.

[new September 2003]