Is the Federal Government Tapping Your Phone?
Many many people who are caught up in a federal investigation become concerned that federal agents may be tapping their phone.
The government shows up at your door. They’ve gone through your bank statements, maybe your emails – it seems like they know a lot about you. A fear that they’ve been listening to your calls, or might start, isn’t unreasonable on its face.
So, here’s some information about how wiretaps work that may help you think through whether you’re being wiretapped.
First, keep in mind that what I’m talking about here applies only to federal law enforcement and the United States Department of Justice. If you have a concern about something involving national security, or it’s the NSA, that’s not what I’m dealing with. Frankly, as we’ve seen over the past few years, may people have reasonably taken the view that when it comes to the NSA, all bets are off.
If we’re just talking about federal law enforcement, you should know that it can be cumbersome for the feds to listen in on your conversations. That isn’t to say that they won’t, just that there’s a process they have to go through that discourages them from getting a wire tap in many cases.
You should also know that an FBI Agent – or other law enforcement agent – can’t just go get a wiretap whenever he or she wants. There’s a specific process they have to follow.
Also, there are only some crimes where the feds can use a wiretap – it can’t just be for anything. That said, the list of crimes is pretty long. It’s at 18 U.S.C. § 2516(1). It includes terrorism crimes, crimes of violence, and most drug dealing – as you’d expect – but it also includes things like counterfeiting, aircraft parts fraud, and the misuse of passports.
To get a wiretap on a phone, the Department of Justice has to file a request with a federal judge in order to have a wiretap. The judge has to approve the request before a wiretap can happen. (And, again, this is for law enforcement/Department of Justice – for NSA/CIA stuff the rules, if there are rules, are different).
In the request for a wiretap, the prosecutor has to describe who is going to be wiretapped and the details of the tap. He or she also has to describe “whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” The judge then has to find that other ways of getting the information from the wiretap would be too dangerous.
The judge’s order authorizing a wiretap can be no longer than 30 days. After 30 days have passed, the prosecutor has to go back to the judge and ask again. When the prosecutor asks again, he or she has to explain what the wiretap found in the first place.
Also, the judge can order that the prosecutor provide reports of what the wiretaps have found and how the wiretapping is going.
On top of all that, the prosecutor generally needs to get internal approval from people at the Department of Justice to do a wiretap.
All of this takes a great deal of work. It requires a prosecutor to spend hours drafting an order and explaining why he or she needs a wiretap for this investigation.
Which is to say that wiretaps aren’t done routinely or as a matter of course. Sure, in some cases they are used, but not in every case. Which means that, depending on your case, it may be likely that you aren’t being wiretapped.