Overview
Electronicsurveillanceis theacquisition of information by an electronic, mechanical, or othersurveillancedevice of the contents of any wire or electronic communication, under circ*mstances in which a party to the communication has areasonableexpectation ofprivacy. The "contents" of a communication consists of any information concerning the identity of the parties, or the existence, substance, purport, or meaning of the communication.1
Examples of electronicsurveillanceinclude:wiretapping, bugging, videotaping; geolocation tracking such as via RFID, GPS, or cell-site data; data mining, social media mapping, and the monitoring of data and traffic on the Internet. Suchsurveillancetracks communications that falls into two general categories: wire and electronic communications. "Wire" communications involve the transfer of the contents from one point to another via a wire, cable, or similar device. Electronic communications refer to the transfer of information, data, sounds, or other contents via electronic means, such as email, VoIP, or uploading to the cloud.
The Fourth Amendment and Landmark Cases
Electronicsurveillancecan implicate theFourth Amendmentright of the people to be secure against unreasonablesearches and seizures. The U.S.Supreme Courtinitially ruled inOlmstead v. U.S (1928)that electronic eavesdropping is not asearch or seizuresince the government intercepted conversations without entering the defendant's home and conversations aren't tangible things to be seized. However, theCourtlateroverruledOlmsteadinKatz v. U.S. (1967)and held that theFourth Amendmentprotects any place where an individual maintains areasonableexpectation ofprivacy. Both cases involvedwiretappingor bugging.
InKyllo v. U.S.(2001), theCourtaddressed the constitutionality of using technology to survey the inside of adefendant's home without actually entering the home. Here, theCourtheld that physical invasion was not required to constitute aFourth Amendmentsearchif thesurveillancereaped information that would not have been attainable without entering the home. 2
On June 5, 2017 theCourtgranted apetitionfor awrit of certiorarito review U.S.Court of Appealsfor theSixth CircuitcaseCarpenter v. U.S.,concerning the use of an individual's cell-site records to map his location over a lengthy historic period. See theSCOTUSblog post on the casefor more information. See also Adam Liptak,Supreme Court Agrees to Hear Cellphone Tracking Case, NY Times, June 4, 2017. 3
Reasonable Expectation of Privacy
Justice Harlan defines theprivacyexpectation in his concurrence inKatz, which is referenced inKyllo, and states that a person must "have exhibited an actual (subjective) expectation ofprivacyand... that the expectation be one that society is prepared to recognize as 'reasonable.'" Thus, a person has a legitimate expectation ofprivacyif he honestly and genuinely believes the location undersurveillanceis private, and if areasonable personin the same or similar circ*mstances would believe the location to be private as well. Therefore, the government has more latitude to legally survey communications in a public place than it does in a private place. Further, the courts have allowed the government to record conversations during jail visitations, provided that thesurveillancereasonably relates to prison security.
Warrant Requirement
Because electronicsurveillanceis asearchunder theFourth Amendment, it is subject to the samewarrantrequirements as othersearches. To obtain awarrant, the government must showprobable causeto believe asearchis justified, describe in particularity the conversation to be intercepted, and provide a specific time period for thesurveillance, among other requirements. Seesearch warrantfor more information.
As with othersearches and seizures,exigent circ*mstancesmay serve as grounds for the government to forgo obtaining awarrant. If a situation threatens a person's life or the national security, or aconspiracysuggests the existence of organized crime, then the government may proceed without awarrant.
Domestic Surveillance Legislation
In 1986,Congressenacted extensive provisions regarding electronicsurveillancein the Electronic Communications Privacy Act (ECPA). Courts have interpreted the Act to allowmagistratesandfederaljudgesto grantwarrantsto law enforcement officers to enter private homes in order to "bug" the home's means of electronic communication. Despite numerous constitutional challenges, the courts have repeatedly upheld these provisions.
The ECPA also provides aremedyfor individuals victimized by unlawful electronicsurveillance. If someone performs electronicsurveillancein violation of the ECPA requirements, the victim may sue forcompensatory damages,punitive damages, andequitable relief, ifequitable reliefcan rectify the harm. However, theplaintiffmay only sue the individual who performed thesurveillance, not any third-party who subsequently receives a copy of the collected data.
The Communications Assistance for Law Enforcement Act of 1994 (CALEA) and its Second Report and Order of 2006 requires that telecommunications companies cooperate with the government's targeted electronicsurveillanceefforts. Cooperation may include modifications to the design of equipment, facilities, and services.
Foreign Surveillance Legislation
Case lawis split on the constitutionality ofwiretappingaforeign national's devices to obtain foreign intelligence. However, courts agree that warrantlesswiretappingfor the purpose of domestic security is unconstitutional.
In 1978,Congressenacted the Foreign Intelligence Surveillance Act (FISA), which lowers the requiredevidentiaryshowing to obtain asurveillancewarrantwith regard to foreign intelligence gathering and describes other procedures for physical and electronicsurveillancerelating to foreign intelligence. Its provisions also apply to American citizens suspected ofespionage.
FISApermits electronicsurveillancein two situations. First, it authorizes the President to use warrantlesswiretappingif it relates to the protection of the United States against a potential grave attack, sabotage, orespionage, on the condition that the government does not tap any U.S. citizen. Second,federallaw enforcement officials may obtain awarrantfor foreign intelligence taps that do not meet the criteria of the first situation. To obtain thewarrant, theFISAcourt(also created by the Act) must findprobable causethat the individual targeted is a foreign power or the agent of a foreign power and that a foreign power uses or will use the place to be tapped. The FISA Court system is housed within theDepartment of Justice, and it deals exclusively with foreign intelligencewarrantapplications, orders directing compliance, and challenges to compliance orders.
Following the attacks on the World Trade Center in September of 2001, the Bush Administration ordered theNational Security Agency (NSA)to implement the use of domestic warrantlesswiretappingto prevent future terrorist attacks. Some politicians and media outlets have criticized these directives as violative of theFourth AmendmentandFISA. See, however,emergency powers.
In July of 2007, President Bush signed into law theProtect America Act of 2007 (PAA), which amendedFISAto loosen thewarrantrequirement by permittingwiretappingof any phone calls originating in or being received in a foreign country. ThePAAexpired after 180 days, at which timeCongressdeclined to renew it. However, many provisions of thePAAwere reauthorized in theFISA Amendments Act of 2008, and have been used as the legal basis for masssurveillanceprograms disclosed byEdward Snowdenin 2013. 4
The USA Patriotand USA Freedom Acts
In 2001,Congressenacted theUniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Patriot Act). ThePatriot Actmodified portions of numerous electronic communications laws, including theECPAandFISA, expanding the authority offederallaw enforcement to combat terrorism through electronicsurveillance.
Among itssurveillance-related provisions, thePatriot Actdiscarded theFISArequirement that the President only conduct warrantlesswiretapsagainst non-U.S. citizen, although it still protected U.S. citizens conductingFirst Amendment-related activities. Additionally, thePatriot Actgave law enforcement that had obtainedFISAwarrantsmore time to conductsurveillance. Another provision directed that the acquisition of stored voicemails be governed by ordinarysearch and seizurelaw, not more-stringentsurveillancelaw.
Controversially, thePatriot Actalso authorized roving wiretaps, which occur when a court grants a surveillance warrant without naming the communications carrier and other third parties involved in the tap. TheFBIand other intelligence-gathering organizations justify the use of roving wiretaps because terrorists can change computers, email accounts, or cellphones quickly upon learning that a device or account is tapped. Critics of the provision argue that it violates the Particularity Clause of theFourth Amendment.
The originalPatriot Actincluded a sunset provision for the law to terminate on December 31, 2005. Becausefederalcourts struck down provisions of theActas unconstitutional in the interim,Congressmade certain substantive changes to the act and renewed the amendedlegislationin March of 2006. In May of 2011, President Obama signed thePATRIOT Sunsets Extension Act of 2011, which extended three provisions of theActfor another four years: roving wiretaps, searches of business records, and thesurveillanceof "lone wolves." When the extension expired in 2015,Congressenacted theUniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act (USA Freedom Act), which restored manyPatriot Actprovisions, albeit modified. It also limited thesurveillancepowers of theFBIandNSA, though not as much as somecivil libertiesandhuman rightswatchdogs would like. 5
See:FISAand "Electronic Surveillance" (justice.gov).
"We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical 'intrusion into a constitutionally protected area,' Silverman, 365 U.S., at 512, constitutes a search–at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when theFourth Amendmentwas adopted. On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search."Kyllo v. U.S.
- No. 16-402in the U.S. Supreme Court Docket;U.S. v. Carpenterin the Sixth Circuit, decided Apr. 13, 2016.
- Jennifer Granick,The FISA Amendments Act Authorizes Warrantless Spying on Americans, The Stanford Law School Center for Internet and Society Blog, Nov. 5, 2012.
- One of the first articles written as a result of Snowden's disclosure: Glenn Greenwald,NSA Collecting Phone Records of Millions of Verizon Customers Daily, The Guardian, June 6, 2013. See also: Mirren Gidda,Edward Snowden and the NSA Files - Timeline, The Guardian, Aug. 21, 2013.
- US: Modest Step by Congress on NSA Reform, Human Rights Watch, May 8, 2014.
- Cindy Cohn & Rainey Reitman,USA Freedom Act Passes: What We Celebrate, What We Mourn, and Where We Go From Here, Electronic Frontier Foundation, June 2, 2015; Neema Singh Guliani,What's Next for Surveillance Reform After the USA Freedom Act, ACLU Blog, June 3, 2015.
See also: National Labor Relations Board, NLRB General Counsel Issues Memo on Unlawful Electronic Surveillance and Automated Management Practices, October 2022.
[Last updated in November of 2022 by the Wex Definitions Team]
