Some of the most popular crime movies and television shows feature “tapped” phones and law enforcement officers listening in on suspects’ phone conversations.
In Goodfellas, Henry Hill is obsessed with whether or not investigators have tapped his phone. In The Wire, members of Avon Barksdale’s drug empire use “burners,” or “disposable” phones, to avoid having their calls recorded.
Even the late rapper Notorious B.I.G. worried in “Mo’ Money Mo’ Problems” that investigators had “tapped [his] cell and the phone in the basement.”
These pop culture references aside, the question remains:
When can police tap a phone?
Simply put, police can tap a phone when they have obtained a wiretap order. The circumstances under which they can obtain this order are outlined in The Wiretap Act which regulates the collection of contents of wire and electronic communications by federal investigatory authorities.
What is the Wiretap Act?
The Wiretap Act was initially enacted in 1968 as Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Congress passed the legislation after the Supreme Court’s decision in Katz v. United States, in which the Court ruled that tapping a phone constituted a search for purposes of Fourth Amendment analysis.
The Wiretap Act prohibits the intentional interception, use, or disclosure of wire and electronic communications unless a statutory exception applies. See 18 U.S.C. § 2511(1). In general, the Act’s prohibitions bar third parties (including the government) from wiretapping telephones.
However, a wiretap order (or “Title III order”) permits law enforcement officers to intercept wire communications for up to 30 days. See 18 U.S.C. §§ 2516(1), 2518(5). A wiretap order must be authorized by the United States Department of Justice and signed by a United States District Court judge or an Appeals judge.
The Wiretap Act imposes significant requirements that must be satisfied before investigators can obtain a wiretap order. Most importantly, the application for a Title III order must show probable cause to believe that the interception will reveal evidence of one of the felony offenses listed in 18 U.S.C. § 2518(3)(a)-(b).
These offenses include: murder, kidnapping, robbery, extortion, obstruction of criminal investigations, bank fraud, sex trafficking of children, money laundering, interstate transportation of stolen property, wire fraud, and forgery of passports and other documents. The complete list of crimes for which a wiretap order can be authorized can be found here.
Once Investigators Have Obtained a Wiretap Order
Once investigators have obtained a wiretap order, they must restrict their behavior in order to minimize invasions of privacy. This means that they must adhere to the expiration date of the wiretap order (which is typically 30 days after issuance). Also, investigators must limit wiretapping only to phone conversations that are likely to yield evidence against the suspect.
It is important to understand that phone calls made from prison are generally exempt from the wiretap order requirement. Prisoners do not share the same level of privacy that civilians do. They cannot expect that their phone conversations will remain private, and thus investigators typically do not need to ask for permission to record them.
The New York Penal Code governs wiretapping by state investigators. See N.Y. Penal Code §§ 250.00 et seq for more information.
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