Expanding Scope of Federal Wiretapping Powers

USA Today’s front-page headline, above the fold, on November 12, 2015 read, “Massive Wire-tapping Operation in L.A.” The secondary headline read, “Drug Agents Intercept More Than 2 Million Conversations in USA.” But it was the first paragraph of the article that ought to set off alarm bells:

“Federal drug agents have built a massive wire-tapping operation in the Los Angeles suburbs, secretly intercepting tens of thousands of Americans’ phone calls and text messages to monitor drug traffickers across the USA despite objections from Justice Department Lawyers who fear that practice may not be legal.”

(emphasis added).

The article paints a damning picture of federal drug agents, mostly employed by the Drug Enforcement Administration (DEA), frustrated by the legal and procedural hurdles standing between their investigations and federally authorized wiretaps. In other words, the article shows federal agents investigating federal crimes, disregarding the advice of federal prosecutors, potentially circumventing federal statutory law and the procedures of the United States Justice Department, and forgoing the adjudication of cases in federal court (with all its enhanced penalties), because they prefer the relative ease of obtaining permission to tap phones in state courts. And the DEA’s decision, now years in the making, to take the easy road to tapping phones and intercepting emails and texts ought to raise significant legal issues from both criminal defense and civil liberties perspectives.

The USA Today article builds on a shorter report by the paper earlier this year. That article, entitled, “DEA Eavesdropping Tripled, Bypassed Federal Courts” (USA Today, June 3, 2015), disclosed DEA wiretapping records, obtained by the paper under the Freedom of Information Act, that showed a three-fold increase in court ordered wiretap authorizations between 2005 and 2014. In 2005 the DEA obtained 3,394 orders to intercept oral, wire or other electronic communications. By 2014, that number had soared to 11,681. And, the paper reported, much of the increase reflected the DEA’s decision to circumvent the United States Justice Department (its own parent agency) and obtain approval from state court judges.

One can offer little quarrel with the mandate of the DEA. Its mission statement focuses on its role to “enforce the controlled substance laws, and regulations of the United States” through, inter alia, the investigation and prosecution of “major violators…..operating at interstate and international levels” and the “[i]nvestigation and preparation for prosecution of criminals and drug gangs who perpetuate violence in our communities and terrorize citizens through fear and intimidation.…” www.DEA.gov/about/mission.shtml.

But the interception of Americans’ phone calls, emails and text messages implicates long-standing Constitutional protections and safeguards that are threatened when federal officials circumvent law and established procedures because they find that course of conduct easier. And it appears that the DEA may have been avoiding those procedures literally on a nationwide scale.

Title 18, United States Code, § 2510, et. seq., provides the legal authority for officials of the federal government to intercept oral, wire and electronic communications. In sum, to obtain authorization to intercept (that is, tap) real-time phone calls, email or text messages, a federal agent must first exhaust every other investigative alternative. 18 U.S.C. § 2518(c). Then, the agent must engage with a federal prosecutor who will oversee the application for and use of the intercepts via well-established statutory and policy-based procedures that control every step of the process. Within that legal and procedural framework agents are required to develop probable cause to show that the device (the phone, the email account, the texting number) are being used in furtherance of the crime under investigation; a crime contained within a list of offenses for which Congress has approved the use of wiretaps. 18. U.S.C. § 2516.

Agents must prepare a comprehensive sworn affidavit outlining the course and progress of their investigation, demonstrating probable cause to intercept the subject phone, email or texting account, and clearly demonstrating why any other investigative technique or approach is likely to fail. 18 U.S.C. § 2518. The affidavit is subject to intense scrutiny by the assigned federal prosecutor(s) and by the Justice Department’s Office of Enforcement Operations. 18 U.S.C. § 2516(1)[1]

If the affidavit survives internal Department of Justice review, and if the Attorney General, through his/her designee, approves the intercept, the application and supporting material are then submitted for review by a United States District Judge[2] in the appropriate district, with the agent appearing in person to swear under oath to the truth of the information contained in the affidavit.

With 24 years of experience as a federal prosecutor myself, I know that federal prosecutors and the Office of Enforcement Operations take the wiretap affidavit review process extremely seriously and spend painstaking hours to comply with the letter and spirit of the statutes governing these interceptions. Likewise, our federal judges – certainly those here in North Carolina with whom I dealt over those years – scrutinize wiretap requests very carefully and ask questions and seek further information before determining whether a request will move forward.

Once approved, a wiretap investigation remains subject to oversight by the federal prosecutors and the authorizing judge. See, 18 U.S.C. § 2518. Prosecutors provide detailed instruction and supervision to agents before interception begins by advising them how to minimize the intrusion while agents screen calls for communications relevant to the crime under investigation; daily call reports are maintained; prosecutors and agents prepare and submit detailed periodic reports to the Court to demonstrate the continued need for the interception within the authorized period; and extensions are granted by repeating the entire process again. After a wiretap investigation is concluded, the law imposes strict notification requirements to anyone whose communications were intercepted. 18, U.S.C. § 2518(d).

So, the USA Today report, and the apparent decision by the DEA to pursue interception authority in state courts, raise many troubling questions:

• If prosecutors fear that the process is illegal, why didn’t the Justice Department, the DEA’s parent organization, prohibit the use of state court wiretapping by federal agents?
• Are we comfortable as a society with federal agents thwarting the clear will of Congress which set high statutory standards for the interception of oral and electronic communications?
• Does the federal statutory scheme cover federal agents regardless of whether they ultimately obtain authorization from a federal or state court? In other words, do the onerous requirements preceding a wiretap application to a court apply even if the agents seek approval in state court? And are the agents following those standards?
• Do criminal defendants have cause to move to suppress wiretap evidence in state court proceedings because the federal agents overseeing the wire did not follow federal law during the process?
• Given the close working relationship between federal, state and local law enforcement officers and the necessity of sharing information back and forth between investigations at these levels, are there grounds to move to suppress evidence in federal court if its source is a wiretap that was authorized in state court in violation of federal law? Is there at least a good faith basis for seeking detailed information from prosecutors and agents about the source of the information used to charge a particular individual?
• Is there a civil remedy available to Americans whose communications have been intercepted through the civil damages provision of Title 18, United States Code, Section 2520 or through a Bivens action?
• Will the DEA’s wide use of state wiretapping authority spread to other federal agencies?

[1] Section 2516 designates the Attorney General, or certain other listed officials, as the approving official who must authorize any application to a court for the interception of oral or wire communications. The Attorney General delegates the authority to the Assistant Attorney General, or to one of the Deputy Assistant Attorneys General for the Criminal Division, to approve applications for the interception of wire and oral communications. Applications for the interception of electronic communications must also be sent to the Office of Enforcement Operations, Criminal Division, for approval. Federal Narcotics Prosecutions, 2nd Edition, United States Department of Justice, Section 4.6.

[2] Unlike the approval of many other investigative techniques, the interception of oral and wire communications cannot be approved by a United States Magistrate Judge. Congress, in 18 U.S.C. § 2510(9) and throughout Chapter 119 of Title 119, limited authority to “[j]udge[s] of competent jurisdiction,” defined as (a) a judge of a United States district court, or a United States court of appeals; and (b) a judge of any court of general criminal jurisdiction of a State who is authorized by a statute of that State to enter orders authorizing interceptions of wire, oral, or electronic communications.” It is this second definition upon which the Drug Enforcement Administration hangs its hat on this issue.