Electronic surveillance

Definitions

Electronic surveillance is

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(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18; (3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or (4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

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Electronic surveillance is the

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[a]cquisition of a nonpublic communication by electronic means without the consent of a person who is a party to an electronic communication or, in the case of a non-electronic communication, without the consent of a person who is visibly present at the place of communication, but not including the use of radio direction-finding equipment solely to determine the location of the transmitter. Electronic surveillance may involve consensual interception of electronic communications and the use of tagging, tracking, and location devices.

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Overview

Electronic surveillance refers to either the interception of communications content (as in a conversation) also known as wiretapping, or the acquisition of call-identifying information (the number dialed). The latter activity is accomplished through the use of pen register devices, which capture call-identifying information for numbers of outgoing calls from the location of lawful interception, and trap and trace devices, which capture information for numbers received at the location of lawful interception, much like consumer caller ID systems.

Under current federal law, law enforcement (i.e., the FBI) must obtain a court order before conducting any of these activities. However, a wiretap requires a higher "evidentiary burden" than a pen register or trap and trace device, including showing that there is probable cause to believe that a person is committing one of a list of specific crimes.

Under traditional analog technology, it was easy to separate the above categories of electronic surveillance. However, the advent of digital signal transmission technologies has made that distinction less clear. Information signals (voice or data) can be transmitted over telephone networks in one of two ways: circuit-switched and packet-switched modes.

Categories of behavior subject to electronic surveillance

The categories of behavior that are subject to electronic surveillance include:

1. Movements — Where someone is. Individuals can be tracked electronically via beepers as well as by monitoring computerized transactional accounts in real time.
2. Actions — What someone is doing or has done. Electronic devices to monitor action include: monitoring of keystrokes on computer terminals, monitoring of telephone numbers called with pen registers, cable TV monitoring, monitoring of financial and commercial computerized accounts and accessing computerized law enforcement or investigatory systems.
3. Communications — What someone is saying or writing, and hearing or receiving. Two-way electronic communications can be intercepted whether the means be analog or digital communication via wired telephones, communication via cordless or cellular phones, or digital electronic mail communication. Two-way non-electronic communication can be intercepted via a variety of microphone devices and other transmitters.
4. Actions and communications — The details of what some one is doing or saying. Electronic visual surveillance, generally accompanied by audio surveillance, can monitor the actions and communications of individuals in both private and public places, in daylight or darkness.
5. Emotions — The psychological and physiological reactions to circumstances. Polygraph testing, voice stress analyzers, breath analyzers, and brain wave analyzers attempt to determine an individual’s reactions.

Impact on privacy

Electronic surveillance is dramatically shrinking the locations and activities in which one has a recognized expectation of privacy. Techniques that derive information from an individual’s body fluids, body structure, mental habits, voice timbre, eye motions, temperature change, and scores of other noncontrollable attributes generate knowledge about past behavior, allow monitoring and measurement of present activities, and may make possible predictions about future performance. We can electronically monitor criminals, or persons awaiting trial, in their homes. We can call up information about a person from a multitude of government or commercial databases, compare and integrate it and, in effect, reveal new information about that person without their knowledge.

Source

• Digital Surveillance: The Communications Assistance for Law Enforcement Act, at 2.
• "Categories of behavior subject to electronic surveillance" section: Electronic Surveillance and Civil Liberties, at 13.