The concept of “wiretapping” has been in the news lately with claims that the former President “wiretapped” the sitting President. And any fan of gritty crime shows and movies like “The Wire,” “The Sopranos,” or “The Conversation” knows that wiretapping and other forms of surveillance have historically been a prime tool by which law enforcement collects evidence against criminal suspects, especially where it is difficult to find witnesses able and willing to provide credible evidence against a suspect. At the same time, however, we are protected by the Fourth Amendment against unreasonable searches and seizures. Which leads to the question of when exactly it is legal for law enforcement to wiretap a person and/or organization.
A Warrant is Needed
Because people do have a reasonable expectation of privacy in their personal conversations – and a wiretap on those conversations would clearly violate that expectation – law enforcement can only place a wiretap if a warrant approved by a judge is issued. Like other warrants, a warrant for wiretapping will only be issued if the judge is satisfied by the evidence presented in support of the warrant that there is probable cause that crime has been committed or is about to be committed and the information to be intercepted by the wiretap would relate to that crime.
Before it can be effective, the warrant authorizing the wiretap must name the suspects being targeted by the wiretap as well as the specific types of conversations to be recorded (e.g. conversations related to an alleged murder-for-hire conspiracy). This warrant will then allow only limited recording of conversations for a set period of time, and the recordings must be provided to the court.
National Security Matters
Issues of national security do present a somewhat different legal framework, which is even more complex. These matters require a FISA order, and the FBI must put together evidence supporting the request for the FISA order which then must be approved by the Attorney General, the Deputy Attorney General, or the head of the National Security Division. Once approved, the request then goes to a federal judge for final approval. Several thousand FISA orders are approved each year.
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