How Does Electronic Surveillance Work Legally?

1. How Does Electronic Surveillance Work Legally? • Title III warrant (content) • Remember Katz case • FISA order (content) • Remember Truong case • Transactional info order • Remember Third-Party Doctrine

2. Title III Warrant (Content) Requirements • Only certain high-level officials can approve application • Warrant application goes to a court (magistrate) • Establish facts giving rise to probable cause to believe that certain crime has occurred or will occur and that particular communications concerning the crime will be obtained through intercept • Details must include particular description of facilities to be wiretapped, among other requirements • Alternative techniques likely to be unsuccessful • Minimize interception of irrelevant communications • Problem of over-collection • Need to sort and delete • Materials turned over to the defendant

3. FISA Order (Content) • For standard FISA wiretapping order, application goes to FISC • FISC must find probable cause to believe target is foreign power or agent of a foreign power • Application must be approved by senior DoJ officials and include detailed facts, including including nature of info sought, and certifcation of foreign intel purpose • Procedures to minimize the acquisition, use, and retention of info concerning U.S. persons

4. Criminal Transactional Info Order (Metadata) Requirements • “Pen register” = device which records or decodes dialing, routing, addressing, signaling info • “Trap & trace device” = device which captures incoming numbers or other dialing, routing, addressing, signaling info • Requires court order (not a warrant) • Law enforcement official must represent to court that info likely to be obtained is relevant to ongoing criminal investigation • For foreign intelligence, even easier