Title III Applied to OnLine Conduct

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Title III Applied to On-Line Conduct

• Sean B. Hoar
• 541-465-6792 (voice)
• 541-465-6840 (fax)
• sean.hoar_at_usdoj.gov

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Electronic Surveillance in Communications Networks

• Two federal statutes govern real-time electronic
  surveillance in federal criminal investigations
• Wiretap statute 18 U.S.C. 2510-2522, first
  passed as the Omnibus Crime Control and Safe
  Streets Act of 1968 (generally known as Title
  III)
• Pen register trap and trace statute 18 U.S.C.
  3121-3127

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Electronic Surveillance in Communications Networks

• Title III and the Pen/trap statute coexist
  because they regulate access to different types
  of information
• Title III content
• Pen/trap statute addressing and other
  non-content information

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Pen Registers Trap Trace Devices

• What is a pen register?
• It is an instrument that records outgoing
  addressing information, such as the number dialed
  from a telephone
• It is defined as a device or process which
  records or decodes dialing, routing, addressing,
  or signaling information transmitted by an
  instrument or facility from which a wire or
  electronic communication is transmitted,
  provided, however, that such information shall
  not include the contents of any communication.
  18 U.S.C. 3127(3).

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Pen Registers Trap Trace Devices

• What is a trap and trace device?
• It is an instrument that records incoming
  addressing information, such as the telephone
  number associated with an incoming call
• It is defined as a device or process which
  captures the incoming electronic or other
  impulses which identify the originating number or
  other dialing, routing, addressing, or signaling
  information reasonably likely to identify the
  source of a wire or electronic communication,
  provided, however, that such information shall
  not include the contents of any communication.
  18 U.S.C. 3127(4).

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Pen Registers Trap Trace Devices

• When can a pen/trap order be obtained?
• when the information likely to be obtained is
  relevant to an ongoing criminal investigation.
  18 U.S.C. 3122(b)(2).

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Pen Registers Trap Trace Devices

• Limitation on use of pen/trap order
• A government agency authorized to install and use
  a pen register or trap and trace device must use
  technology reasonably available to it that
  restricts the recording or decoding of electronic
  or other impulses to the dialing, routing,
  addressing, and signaling information utilized in
  the processing and transmitting of wire or
  electronic communications so as not to include
  the contents of any wire or electronic
  communications. 18 U.S.C. 3121(c).

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Pen Registers Trap Trace Devices

• What must an application for a pen/trap order
  contain?
• The identity of the applicant
• The law enforcement agency conducting the
  investigation
• A certification that the information likely to be
  obtained is relevant to an ongoing criminal
  investigation. 18 U.S.C. 3122(b)(1)-(2).

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Pen Registers Trap Trace Devices

• How long can a pen/trap order authorize a
  pen/trap to be used?
• For a period not to exceed 60 days. 18 U.S.C.
  3123(c)(1).
• Extensions can be granted, through the same
  process as an original order, for a period not to
  exceed 60 days. 18 U.S.C. 3123(c)(2).

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Pen Registers Trap Trace Devices

• Can pen registers or trap and trace devices be
  installed without an order?
• Yes but only when an emergency situation
  exists, and when four conditions are fulfilled
  (18 U.S.C. 3125)
• The first condition -- the AG, DAG, Assoc. AG, an
  Asst. AG, or a State AG or County DA (pursuant to
  a State statute), must reasonably determine
  that an emergency situation exists that involves
• Immediate danger of death or serious bodily
  injury to any person
• Conspiratorial activities characteristic of
  organized crime
• An immediate threat to a national security
  interest or
• An ongoing attack on a protected computer that
  constitutes a felony crime.

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Pen Registers Trap Trace Devices

• Can pen registers or trap and trace devices be
  installed without an order?
• Yes but only when an emergency situation
  exists, and when four conditions are fulfilled
  (18 U.S.C. 3125)
• The second condition The emergency situation
  requires the installation and use of a pen
  register and trap and trace device before an
  order authorizing their use can, with due
  diligence, be obtained

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Pen Registers Trap Trace Devices

• Can pen registers or trap and trace devices be
  installed without an order?
• Yes but only when an emergency situation
  exists, and when four conditions are fulfilled
  (18 U.S.C. 3125)
• The third condition there are grounds for which
  an order could be obtained

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Pen Registers Trap Trace Devices

• Can pen registers or trap and trace devices be
  installed without an order?
• Yes but only when an emergency situation
  exists, and when four conditions are fulfilled
  (18 U.S.C. 3125)
• The fourth condition within 48 hours after the
  installation has occurred, an order approving the
  installation and use is issued in accordance with
  18 U.S.C. 3123.

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Title III The Wiretap Act

• What is prohibited under Title III?
• Title III broadly prohibits the interception of
  oral communications, wire communications, and
  electronic communications.

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Title III The Wiretap Act

• What must a Title III order obtain
• Applicants authority to apply
• Identity of person making application
• Identity of officer authorizing application
• Facts justifying the request (probable cause for
  belief)
• Details of the offense being investigated
• Nature and location of the facilities or place
  from where surveillance will be conducted
• Type of communication to be intercepted
• Identity of person to be overheard
• Inadequacy of alternative investigative
  procedures (necessity for interception)
• Period for which authorization is sought (maximum
  30 days)
• Details concerning results of prior orders, if
  any.

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Title III The Wiretap Act

• What process must be followed to obtain and
  implement a Title III order?
• Affidavit showing probable cause and necessity
• Prior approval
• Judicial authorization
• Minimization
• Sealing

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Title III The Wiretap Act

• What must the affidavit show?
• must show probable cause to believe that the
  interception will reveal evidence of a predicate
  felony offense listed in section 2516
• must show that normal investigative procedures
  have been tried and failed, or that they
  reasonably appear to be unlikely to succeed or to
  be too dangerous to employ
• must show probable cause that communication
  facility is being used in a predicate crime
• must show that surveillance will be conducted in
  manner that minimizes interception of
  communications that do not relate to predicate
  crime

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Title III The Wiretap Act

• Case examples
• United States v. Thanad Paktipatt (Thai General)
• Affidavit 24 pages
• Application
• Order
• Minimization guidelines
• United States v. Piedad Sanchez (19 defendant
  case)
• Affidavit 56 pages
• Application
• Order
• Minimization guidelines

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Title III The Wiretap ActDefinitions

• Wire communication
• "wire communication" means 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. 18 U.S.C. 2510(1).

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Title III The Wiretap Act\Definitions

• Oral communication
• "oral communication" means 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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Title III The Wiretap ActDefinitions

• Electronic communication
• "electronic communication" means 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,
  photoelectronic or photooptical 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 (as
  defined in section 3117 of this title) or
• (D) electronic funds transfer information stored
  by a financial institution in a communications
  system used for the electronic storage and
  transfer of funds

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Title III The Wiretap ActDefinitions

• Intercept
• "intercept" means 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).
• Generally understood to mean that the acquisition
  must be contemporaneous with the transmission.

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Title III The Wiretap ActExceptions

• Exceptions to Title III
• Interception pursuant to a 18 U.S.C. 2518 court
  order.
• The consent exception. 18 U.S.C.
  2511(2)(c)-(d).
• The provider exception. 18 U.S.C.
  2511(2)(a)(i).
• The computer trespasser exception. 18 U.S.C.
  2511(2)(i).
• The extension telephone exception. 18 U.S.C.
  2510(5)(a).
• The inadvertently obtained criminal evidence
  exception. 18 U.S.C. 2511(3)(b)(iv). and
• The accessible to the public exception. 18
  U.S.C. 2511(2)(g)(i).

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Title III The Wiretap ActExceptions Court
Order

• Exceptions to Title III -- Interception pursuant
  to a 18 U.S.C. 2518 court order.
• Several formidable requirements for application
• must show probable cause to believe that the
  interception will reveal evidence of a predicate
  felony offense listed in section 2516
• must show that normal investigative procedures
  have been tried and failed, or that they
  reasonably appear to be unlikely to succeed or to
  be too dangerous to employ
• must show probable cause that communication
  facility is being used in a predicate crime
• must show that surveillance will be conducted in
  manner that minimizes interception of
  communications that do not relate to predicate
  crime

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Title III The Wiretap ActExceptions -- Consent

• Exceptions to Title III -- The consent
  exception. 18 U.S.C. 2511(2)(c)-(d).
• where a law enforcement officer or someone acting
  on behalf of a law enforcement officer is a party
  to the communication or one of the parties to the
  communication has given prior consent
• where a private person is a party to the
  communication or one of the parties to the
  communication has given prior consent it is not
  unlawful to intercept the communication unless it
  is done for the purpose of committing any
  criminal or tortious act in violation of any
  federal or state law.

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Title III The Wiretap ActExceptions -- Provider

• Exceptions to Title III -- The provider
  exception. 18 U.S.C. 2511(2)(a)(i).
• Employees or agents of a provider of a
  communications service may intercept, disclose,
  or use communications in the normal course of
  their employment while engaged in any activity
  which is a necessary incident to the rendition of
  that service or to the protection of the rights
  or property of the provider of the service.

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Title III The Wiretap ActExceptions
Trespasser

• Exceptions to Title III -- The computer
  trespasser exception. 18 U.S.C. 2511(2)(i).
• Victims of computer attacks may allow law
  enforcement to intercept wire or electronic
  communications of a computer trespasser if four
  requirements are met
• The owner/operator of the protected computer must
  authorize the interception of the trespassers
  communications
• The person who intercepts the communications must
  be lawfully engaged in an investigation
• The person who intercepts the communications must
  have reasonable grounds to believe that the
  contents of the computer trespassers
  communications will be relevant to the
  investigation
• The interception should not acquire any
  communications other than those transmitted to or
  from the computer trespasser

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Title III The Wiretap ActExceptions
extension telephone

• Exceptions to Title III -- The extension
  telephone exception. 18 U.S.C. 2510(5)(a).
• Intended to only allow an employer to monitor
  communications of an employee to ensure that the
  computer provided to the employee by the employer
  is used for work-related purposes

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Title III The Wiretap ActExceptions
inadvertently obtained evidence

• Exceptions to Title III -- The inadvertently
  obtained criminal evidence exception. 18 U.S.C.
  2511(3)(b)(iv).
• Contents of communications may be disclosed to
  law enforcement where they were inadvertently
  obtained by the service provider and they appear
  to pertain to the commission of a crime

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Title III The Wiretap ActExceptions public
info

• Exceptions to Title III -- The accessible to the
  public exception. 18 U.S.C. 2511(2)(g)(i).
• This appears to permit the interception of an
  electronic communication in a public chat room, a
  Usenet newsgroup, etc.

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Electronic Surveillance in Communications
Networks-- Remedies for violations --

• Remedies for violations of Title III and Pen/Trap
  Statute
• Criminal penalties for violation of Title III
  maximum penalty of five years imprisonment and
  250,000 fine. 18 U.S.C. 2511(4)
• Civil damages for violation of Title III. 18
  U.S.C. 2520
• Criminal penalties for pen/trap violations --
  maximum penalty of one year imprisonment and
  100,000 fine. 18 U.S.C. 3121(d)
• Suppression for certain Title III violations. 18
  U.S.C. 2518(10)(a).

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Questions?
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Title III Applied to On-Line Conduct

• Sean B. Hoar
• 541-465-6792 (voice)
• 541-465-6840 (fax)
• sean.hoar_at_usdoj.gov