Criminal Justice Section  

   Standards


ELECTRONIC SURVEILLANCE OF PRIVATE COMMUNICATIONS

PART I
OBJECTIVES

Standard 2-1.1 Objectives

The objectives of these standards are to assure the right to communicate privately, either in person or by technological means, and to determine under what conditions law enforcement, electronic communication service providers and other persons should be permitted to acquire, use and disclose such private communications.

PART II
DEFINITIONS

Standard 2-2.1. Definitions

For purposes of these standards:

  • (a) A "communication" is:
  • (i) any oral statement; or
  • (ii) the transmission of any oral statement or of any signs, signals, writing, images, sounds, data or information of any nature, by wire, radio wave, or other technological means, including any statement or transmission to one's self, but excluding any communication made through a tone-only paging device, or from a tracking device.
  • (b) A "private communication" is a communication which is made under circumstances in which a reasonable expectation of privacy exists. For these purposes, a reasonable expectation of privacy may exist for a communication being transmitted by a communication service provider, or temporarily stored incident to that transmission, despite the fact that it is transmitted to more than one recipient, and despite the lawful access of the provider to the contents of that communication.
  • (c) "Electronic surveillance" is the non-consensual interception of the contents of a private communication by use of a mechanical, electronic or other device. For purposes of this definition:
  • (i) the "contents" of a communication are any information concerning the substance, purport, or meaning of that communication;
  • (ii) the contents of a private communication are "intercepted" when they are acquired contemporaneously with their transmission
  • (iii) the contents of a communication are intercepted "non-consensually" when they are intercepted without the consent of at least one party to the communication; and
  • (iv) A "mechanical, electronic or other device" means any device or apparatus which can be used to intercept the contents of a private communication other than any instrument, equipment or facility, furnished to or by the subscriber to or user of an electronic communication service which is installed and used in the ordinary course of the subscriber's business; or by an investigative or law enforcement officer in the ordinary course of the officer's duties.
  • (d) "Minimization" is a good faith effort made to limit the interception of communications to those communications, or portions thereof, which are subject to interception pursuant to an electronic surveillance order.
  • (e) A communication is "subject to interception" if it is intercepted during lawfully conducted electronic surveillance and:
  • (i) it is evidence of an offense which is an authorized subject of the electronic surveillance, or of another offense; and
  • (ii) the communication is not privileged under applicable state law.
  • (f) "Law enforcement officer" means:
  • (i) any officer of the United States or of a state or one of its political subdivisions who is empowered by law to conduct an investigation of, or to make an arrest for, a criminal offense, and includes any agent of such an officer, and
  • (ii) any attorney authorized by law to prosecute or participate in the prosecution of such an offense.
  • (g) An "electronic communication service provider" is a person or entity which, in the ordinary course of business, routinely provides a service allowing its users to send or receive private communications, and a Apublic electronic communication service provider" is one who offers such a service to the public.

PART III
GENERAL PRINCIPLES

Standard 2-3.1. General principles

The standards that follow incorporate and implement these general principles:

  • (a) The need to protect private communications.
  • (i) Intrusion on private communications by the government. The security of private communications from arbitrary intrusion by governmental officials is a basic necessity for the maintenance of a free society. Accordingly, law enforcement's authority to conduct electronic surveillance should be strictly regulated.
  • (ii) Intrusion on private communications by others. Because technology renders private communications vulnerable to interception by all persons, electronic surveillance by those outside law enforcement should also be strictly regulated.
  • (iii) Protecting stored communications. When technologically transmitted private communications are stored by an electronic communication service provider incidental to their transmission, access to those stored communications should also be regulated.
  • (iv) Providing the same level of protection for all forms of communication. Private communications should be afforded the same level of protection whether they are spoken in person or transmitted by technological means, and if by technological means, whether or not the communications include the human voice.
  • (b) Need to allow regulated electronic surveillance by law enforcement
  • (i) Need for electronic surveillance. Because the interception of private communications can be an effective tool for the investigation and prosecution of criminal activity, law enforcement agencies should, in appropriate cases and under appropriate regulation, have the legal authority and the technological means to conduct electronic surveillance, and to use the communications thus lawfully obtained, and evidence derived therefrom, in criminal and related civil actions.
  • (ii) Balancing competing needs. A proper balancing of privacy and law enforcement interests requires that electronic surveillance by law enforcement agencies be permitted only when:
  • (A) the objectives of an investigation are not likely attainable by alternative investigatory methods, and
  • (B) the intrusion is justified by the importance and likelihood of achieving those objectives.
  • (iii) Constitutional requirements. Except in emergency circumstances, electronic surveillance should be permitted only when authorized by a prior judicial order, which should be issued and executed in compliance with the Fourth Amendment requirements of probable cause, particularity, notice, and reasonableness.
  • (iv) Non-constitutional requirements. When law enforcement acquires a private communication non-consensually, the intrusion on privacy is greater if the contents are acquired contemporaneously with the transmission of the communication. Consequently, the use of electronic surveillance by law enforcement should be subjected to requirements beyond those mandated by the Fourth Amendment.
  • (v) Regulating law enforcement's access to stored communications. Because the privacy interests in private communications stored incidental to their transmission are also significant, the law should also strictly regulate law enforcement's authority to acquire and use the contents of such stored private communications.
  • (c) Applying for and executing an electronic surveillance order.
  • (i) Establishing the necessity for electronic surveillance. Electronic surveillance is an especially intrusive means of investigation. Accordingly, a judicial order authorizing a law enforcement officer to conduct electronic surveillance should be issued only when:
  • (A) the application for the order has been approved by a politically accountable prosecutor with the authority to establish and maintain a uniform electronic surveillance policy within the affected jurisdiction, or by a high ranking subordinate expressly authorized to exercise this responsibility;
  • (B) the applicant believes that the intrusion is justified by the importance and likelihood of achieving the objectives of the electronic surveillance; and
  • (C) the judge issuing the order approves the objectives of the electronic surveillance and finds that for purposes of achieving those objectives, other investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried or to be too dangerous.
  • (ii) Employing the expertise required. Officers executing an electronic surveillance order often must make complex legal determinations. Accordingly,
  • (A) the execution of such an order should be supervised by an attorney authorized to investigate and prosecute the crimes which are the subject of the order, and
  • (B) communications should be intercepted pursuant to the order by law enforcement officers who have been trained in the law and techniques of electronic surveillance, and who understand the terms and conditions of the order.
  • (iii) Judicial monitoring of on-going electronic surveillance. . Because an electronic surveillance order is usually executed over an extended period of time, the judge who issues such an order can and should ensure that it is executed appropriately.
  • (iv) Creating a reliable record. To maximize the reliability of evidence obtained through the interception of private communications, a record of the contents of the communications thus intercepted should, whenever technologically possible, be made and preserved in a manner designed to protect its integrity.
  • (v) Ensuring accountability. To further ensure the accountability of law enforcement officials and officers who participate in electronic surveillance, law enforcement agencies should:
  • (A) promulgate administrative rules to ensure that the information necessary for such accountability exists;
  • (B) be subject to the exclusionary sanction in appropriate circumstances;
  • (C) promulgate internal regulations concerning the manner in which electronic surveillance is authorized and conducted;
  • (D) periodically review the scope and effectiveness of the electronic surveillance conducted; and
  • (E) maintain and make available to the public general information about the type or types of electronic surveillance conducted, and the frequency of their use.

PART IV COURT-ORDERED ELECTRONIC SURVEILLANCE

Standard 2-4.1 Order authorizing electronic surveillance; authorized application.

  • (a) Except in an emergency situation, law enforcement officers should be permitted to conduct electronic surveillance only when authorized by a judicial order of the highest court of general trial jurisdiction, or a court authorized to hear appeals from that court.
  • (b) An application for such an order should be permitted:
  • (i) in the case of an order directed to a federal law enforcement officer, only when authorized by the Attorney General of the United States, or, when specifically permitted by Congress, by any other high ranking subordinate whom the Attorney General specially designates to authorize such applications, and who is either a presidential appointee or a person with appropriate expertise in applications for electronic surveillance orders; and
  • (ii) in the case of an order directed to a state or local law enforcement officer, only when authorized by the principal prosecuting attorney of the state or local government, or by a high ranking subordinate, when specifically permitted by state law and when specially designated by the principal prosecuting attorney to authorize such an application.
  • (c) A law enforcement officer should be permitted to conduct court-ordered electronic surveillance only when that officer is empowered by law to conduct an investigation of, or to make an arrest for, the particular offense as to which electronic surveillance is approved.

Standard 2-4.2. Application; form; contents; additional facts

  • (a) An application for an order authorizing the use of electronic surveillance should be made in writing upon an oath or affirmation and state:
  • (i) the identity of the prosecuting official authorizing the application pursuant to Standard 2-4.1(b);
  • (ii) the identity of the prosecuting attorney making the application;
  • (iii) the identity of the prosecuting attorney who will supervise the execution of the order;
  • (iv) the identity of the person, if known, whose communications are to be intercepted;
  • (v) the particular offense which is the subject of the electronic surveillance order;
  • (vi) the objectives of the electronic surveillance;
  • (vii) the particular kind of communications sought to be intercepted;
  • (viii) the kind and location of the facilities over which or the place where the communications are or will be occurring, or the facts demonstrating that specification of the place is not practical;
  • (ix) the period of time for which eavesdropping authority is sought, including a statement that the authorization should not automatically terminate when the described type of communication has been first intercepted, if authority to intercept additional communications is sought;
  • (x) the material facts known to the applicant and necessary for the judge to determine whether the probable cause requirements set forth in Standard 2-4.3 have been satisfied;
  • (xi) the material facts necessary for the court to determine whether other investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or too dangerous;
  • (xii) the material facts known to those authorizing and making the application concerning such applications made within the past ten years for the authority to conduct electronic surveillance of the person whose communications are to be intercepted and the facilities over which or the place where the communications to be intercepted are or will be occurring, including, where the application is for the extension of an order, a statement setting forth the results thus far obtained from the electronic surveillance, or a reasonable explanation of the failure to obtain such results; and
  • (xiii) the need for particular electronic communication service providers, and landlords, custodians, or other persons, if known, to furnish information, facilities, or technical assistance, if such is necessary in the execution of the order.
  • (b) The judge to whom the application is submitted should be permitted to require that additional facts be furnished under oath or affirmation, which should be duly recorded.

Standard 2-4.3. Probable cause; kinds of showings

The statements of facts relied upon and submitted by the applicant should establish:

  • (a) probable cause to believe that a person is committing, has committed, or is about to commit a particular designated offense;
  • (b) probable cause to believe that evidence concerning that particular offense may be obtained through electronic surveillance of the facilities over which or at the place where the communications to be intercepted are or will be occurring, unless, pursuant to Standard 2-4.10, the facility or place need not be specified;
  • (c) that for purposes of achieving the objectives of the electronic surveillance as described in the application, other investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous, and
  • (d) if the nature of the investigation is such that the authorization should not automatically terminate when the described type of communication has been first obtained, probable cause to believe that additional communications of the same type will occur thereafter.

Standard 2-4.4. Designated offenses; criteria

An application for an order authorizing electronic surveillance should be permitted only for the investigation of offenses which are punishable by more than one year imprisonment and have been designated by the legislature as serious enough to justify the intrusiveness of the surveillance.

Standard 2-4.5. Other offenses

  • (a) When, during lawfully conducted electronic surveillance, communications are intercepted which relate to offenses other than those specified in the initial surveillance order, whether or not those offenses are among the designated offenses for which such surveillance may be authorized, and the contents were obtained lawfully:
  • (i) the contents of those communications and evidence derived therefrom may be disclosed or used by law enforcement officers and officials to the extent such use or disclosure is appropriate to the proper performance of official duties; and
  • (ii) the contents of those communications and evidence derived therefrom may be introduced into evidence.
  • (b) When evidence of another designated offense has been intercepted, and the officers desire to obtain specific authority to intercept future communications relating to that offense, an application in conformity with Standards 2-4.1 through 2-4.4 should be made and approved.
  • (c) When evidence of another designated offense has been intercepted, and an application to intercept future communications constituting evidence of that offense has not been made pursuant to Standard 2-4.5(b), future communications relating to that other offense may nonetheless be intercepted in conformity with Standard 2-4.5(a).

Standard 2-4.6. Judicial discretion and determination

In the exercise of sound discretion:

  • (a) the judge to whom an application for authorization is submitted should be permitted to deny the application, and
  • (b) upon determining that the application satisfies the showings required by Standard 2-4.3, the judge should be authorized to grant the order either as requested, or with appropriate modifications, including but not limited to:
  • (i) reducing the length of the maximum period of authorized electronic surveillance;
  • (ii) modifying the authorized objectives of the electronic surveillance;
  • (iii) requiring progress reports, or modifying the frequency with which progress reports, if any, must be submitted;
  • (iv) specifying or modifying the manner in which records of intercepted communications are to be made;
  • (v) specifying or modifying the manner in which the minimization of communications not subject to interception is to be achieved, either contemporaneously with or after their interception; or
  • (vi) when the authorization sought is to intercept communications occurring in more than one place and/or over more than one facility, granting only part of the authority requested.

Standard 2-4.7. Order; jurisdiction

  • (a) A federal judge should be permitted to issue an electronic surveillance order authorizing the interception of private communications, regardless of where those communications are occurring, if the communications are to be intercepted in the United States, and the offense which is the authorized subject of the electronic surveillance has been, is being, or is about to be committed within the territorial jurisdiction of the court; and
  • (b) A state judge should be permitted to issue an order authorizing the interception of private communications, regardless of where those communications are occurring, if:
  • (i) the offense which is the authorized subject of the electronic surveillance has been, is being, or is about to be committed within the territorial jurisdiction of the court in which the judge is sitting, and the communications are to be intercepted within the state; or
  • (ii) the offense which is the authorized subject of the electronic surveillance has been, is being, or is about to be committed in another state; the communications are to be intercepted within the territorial jurisdiction of the court in which the judge is sitting; and the law of the state in which the judge sits permits the judge to issue such an order; provided, however, that:
  • (iii) a state court judge should be permitted to issue an order authorizing the interception of communications occurring between or among parties known to be outside the state only pursuant to an interstate compact permitting such interceptions, and
  • (iv) an electronic communication service provider should be required to comply with an order issued pursuant to Standard 2-4.8(i) that it furnish information, facilities, or technical assistance for the execution of an electronic surveillance order to be executed in a state if:
  • (A) the provider is lawfully served with the order in that state, or
  • (B) the provider is lawfully served with the order in another state and is required to comply with it pursuant to an interstate compact.

Standard 2-4.8. Order; form; contents

The order should be issued in writing signed by the judge and contain the following information:

  • (a) the identity of the prosecuting official authorizing the application pursuant to Standard 2-4.1(b);
  • (b) the identity of the prosecuting attorney who will supervise the execution of the order;
  • (c) the identity of the agency employing the law enforcement officers authorized to intercept communications;
  • (d) the identity of the person, if known, whose communications are to be intercepted;
  • (e) a specification of the particular offense as to which electronic surveillance is approved;
  • (f) a particular description of the communications sought to be intercepted;
  • (g) a particular description of the facilities from which or the place where the communications to be intercepted are or will be occurring, unless the order is issued pursuant to Standard 2-4.10;
  • (h) a directive that the interception of communications shall begin at a specified time or as soon as practicable, and in any case, no later than ten days after the order is issued;
  • (i) where requested and approved, a directive requiring electronic communication service providers, landlords, custodians, or other persons to furnish information, facilities, or technical assistance, and authorizing compensation for the costs of such assistance;
  • (j) a directive that minimization of the intercepted communications be accomplished contemporaneously with their interception;
  • (k) a statement of the maximum period of authorized electronic surveillance, which shall not be longer than warranted by the showings of probable cause required by subdivisions (a) and (b) of Standard 2-4.3, and in any event, not longer than thirty days from the time specified for the beginning of interception of communications;
  • (l) a directive that the interception of communications shall terminate upon the accomplishment of the objectives of the electronic surveillance, as those objectives are set forth in the application pursuant to Standard 2-4.2(vi), and are approved by the court; and
  • (m) a directive that the prosecuting attorney the application states will supervise the execution of the order, or another prosecuting attorney acting on his or her behalf, must supervise the execution of the order, and, unless the authorized period of electronic surveillance is ten days or less, periodically submit progress reports to the court containing:
  • (i) information reasonably adequate to permit the judge to review whether the order is being executed in a manner which minimizes the interception of communications not otherwise subject to interception, and whether continued interception of the communications pursuant to the order is necessary to achieve the objectives of the electronic surveillance, as those objectives are set forth in the application pursuant to Standard 2-4.2(vi) and approved by the court pursuant to Standard 2-4.8(l);
  • (ii) notice of the interception and content of any communication, if known, that does not relate to an offense specified in the electronic surveillance order, but does relate to another offense not specified in that order; and
  • (iii) identification, by number or otherwise, of the records made of the contents of the intercepted communications pursuant to Standard 2-4.14.

Standard 2-4.9. Minimization after communications intercepted

  • (a) When it is not reasonably possible to satisfy the minimization requirement of Standard 2-4.8(j), either because the technological means by which the intercepted communications are transmitted do not permit it, or because the intercepted communications are in a code or foreign language which cannot reasonably be deciphered or translated at the time of interception, the minimization requirement set forth in that standard should be considered satisfied if:
  • (i) a law enforcement officer who is familiar with the investigation of the offense for which the electronic surveillance is authorized, or an individual acting under the supervision of such a law enforcement officer, accomplishes that minimization as soon as practicable after the communications are intercepted;
  • (ii) to the extent reasonable and possible, that minimization is accomplished in a manner designed to protect the privacy interests of the parties to the communications to the same extent as properly conducted contemporaneous minimization, had contemporaneous minimization been possible;
  • (iii) the minimizing officer, or the individual acting under his supervision, makes at least one original record of the communications that the officer determines were otherwise subject to interception, for disclosure to and use by the other law enforcement officers participating in the investigation;
  • (iv) the minimizing officer preserves an original record of the communications made as they were intercepted and before they were minimized, along with any other original or duplicate of the record used to accomplish the minimization, using procedures designed to prevent others from having access to the contents of the record; and
  • (v) the contents of the communications that the minimizing officer determines were not otherwise subject to interception are not otherwise disclosed, except as authorized by judicial order.
  • (b) When the electronic surveillance order does not already authorize such minimization procedures, the judge who issued the order should be notified, in the next progress report or application for an extended electronic surveillance order, whichever is earlier, that such procedures are being employed.
  • (c) Whenever progress reports are filed, and within five days after the end of the authorized period of electronic surveillance, the issuing judge should be presented with the original records of the communications thus far preserved by the minimizing officer pursuant to subdivision (a)(iv), and not yet presented to the judge. Those records should be maintained in a place specified by the judge under such conditions as the judge may order, and that place and those conditions should not be changed except by judicial order.

Standard 2-4.10. Order not specifying place or facilities; application and authorization

An order which does not particularly describe the location of the facilities from which or the place where the communications to be intercepted are or will be occurring, may be issued if:

  • (a) the order otherwise complies with the requirements of Standard 2-4.8;
  • (b) the application for the order contains a full and complete statement demonstrating that specification of a facility or place is not practical;
  • (c) the judge issuing the order finds from the application probable cause to believe that such specification is not practical;
  • (d) the application identifies one or more persons committing the offense; and
  • (e) the authorization to intercept communications is limited to the interception of communications of the person or persons so identified.

Standard 2-4.11. Extensions

Extensions of an order authorizing electronic surveillance should be granted for periods of not longer than thirty days upon filing and approval of an application in accordance with Standards 2-4.1, 2-4.2, 2-4.3, 2-4.4, and, when applicable, 2-4.10. No limit should be placed on the number of extensions that may be granted. In the exercise of sound discretion, an application for such an extension may be denied, or granted as requested or with appropriate modifications, in accordance with Standard 2-4.6.

Standard 2-4.12. Privileged communications

  • (a) No order should be permitted authorizing interception of communications over a facility or in a place primarily used by professionals whose communications are privileged under applicable state law, or in a place used primarily for habitation by a husband and wife, unless, in addition to the showings required under Standard 2.4.3, and, where applicable 2-4.10, the applicant establishes probable cause to believe that there is a particular need to conduct such surveillance over that facility or in that place.
  • (b) No otherwise privileged communication intercepted in accordance with or in violation of these standards should lose its privileged character.

Standard 2-4.13. Orders and applications; custody; destruction

All orders and applications should be maintained in such places as the judge directs. Orders and applications may be destroyed ten years after they are issued, and may be destroyed earlier when the judge so directs. Orders and applications should not be disclosed except as authorized by statute or judicial order.

Standard 2-4.14. Authenticity

  • (a) At least one original record of the contents of any communications intercepted by electronic surveillance should be made contemporaneously with its interception.
  • (b) To the extent possible and reasonable given the form of the communications and the available technology, the equipment and techniques used to make the record should:
  • (i) enable the intercepting officers to make a complete and accurate record of the intercepted communications, and
  • (ii) either protect an original record from editing or other alteration, or disclose whether that record has been edited or altered.
  • (c) If such equipment and techniques are used, but fail to make an original record of a particular communication, the law enforcement officer intercepting the communication should transcribe the communication as accurately as possible, and the issuing judge should be notified of the failure and provided with a copy of the transcript no later than the next progress report, or within five days of the end of the authorized period of eavesdropping.
  • (d) When communications are minimized contemporaneously with their interception, an intercepting officer should take steps to preserve one original record of the intercepted communications immediately after the record is completed, following procedures designed to protect it from editing or alteration.
  • (e) When communications are minimized after they are intercepted pursuant to Standard 2-4.9, in addition to preserving, as required by Standard 2-4.9(a)(iv), an original record of the communications made as they were intercepted and before they were minimized, the minimizing officer should also take steps to preserve one original record of the minimized communications made pursuant to Standard 2-4.9(a)(iii) immediately after the minimization is accomplished, following procedures designed to protect the record from editing or alteration.
  • (f) Under appropriate safeguards, other copies of those records, whether original or duplicate, may be made, used and disclosed for investigative purposes or trial preparation.

Standard 2-4.15. Inventory; contents; time; postponement

  • (a) After the authorization for electronic surveillance, including any extension of that authorization, has ended, the judge should order that an inventory be served on:
  • (i) the persons named in the order of authorization, and
  • (ii) any other identified parties to the intercepted communications whom the judge determines should be served in the interest of justice.
  • (b) The inventory should include notice of:
  • (i) the entry of the order;
  • (ii) the date of the entry of the order;
  • (iii) the period of authorized electronic surveillance;
  • (iv) the interception, if any, of communications; and
  • (v) the period, if any, of actual interception of communications.
  • (c) The judge should order that the inventory be served as soon as practicable, and no later than a specified date, not less than thirty days and not more than ninety days after the authorization for electronic surveillance, including any extension of that authorization, has ended. Upon a showing of good cause made to the judge, the date should be postponed.
  • (d) Upon application of a person who has received such an inventory, and on notice to the applicant for the electronic surveillance order, the judge may order further disclosure if the judge finds such disclosure is required in the interest of justice.

Standard 2-4.16. Disclosure; use

  • (a) A law enforcement officer should be permitted to disclose, receive or use the contents of a private communication intercepted by means of electronic surveillance conducted in a manner authorized by these standards, or evidence derived therefrom, only to the extent it is in the proper performance of the officer's official duties.
  • (b) Any person who is not a law enforcement officer should be permitted to disclose or use such a communication if the person obtains the contents of the communication lawfully and uses or discloses it for any lawful purpose.

Standard 2-4.17. Reports

  • (a) Judges should make annual reports concerning electronic surveillance orders to an appropriate agency which should contain:
  • (i) the number of orders applied for;
  • (ii) the kinds of orders applied for;
  • (iii) the number of orders denied, the number granted as applied for, and the number granted as modified;
  • (iv) the periods of time over which electronic surveillance was conducted or records were made pursuant to each electronic surveillance order, including each extension of such an order;
  • (v) the offenses specified in the orders or the applications which were denied;
  • (vi) the identity of the persons authorizing the applications; and
  • (vii) the identity of the law enforcement agency of the applicant.
  • (b) Applicants should make annual reports concerning their applications to the agency specified in paragraph (a) which should contain:
  • (i) the information required in subdivisions (a)(i)-(vii);
  • (ii) a general description of the intercepting, separated by offense, including:
  • (A) the character and frequency of the incriminating communications intercepted;
  • (B) the character and frequency of the other communications intercepted;
  • (C) the number of persons whose communications were intercepted; and
  • (D) the character and amount of manpower and other resources used in the intercepting;
  • (iii) the number of arrests resulting from the intercepting;
  • (iv) the offenses for which the arrests were made;
  • (v) the number of trials in which intercepted communications, or evidence derived from intercepted communications, was used;
  • (vi) the number of motions to suppress made, granted, or denied based on the intercepting;
  • (vii) the number of convictions in cases in which intercepted communications, or evidence derived from intercepted communications, was used; and
  • (viii) the offenses for which the convictions were obtained.
  • (c) The agency specified in subdivisions (a) and (b) should make public a complete annual report based on the information required to be filed by subdivisions (a) and (b).

PART V
INTERCEPTION OF COMMUNICATIONS BY LAW ENFORCEMENT WITHOUT AN ELECTRONIC SURVEILLANCE ORDER

Standard 2-5.1. Intercepting communications with consent

  • (a) A law enforcement officer should be permitted to intercept the contents of a private communication with the consent of one of the parties to the communication without a court order, provided that the officer intercepts and uses the communication in the proper performance of the officer's official duties.
  • (b) A law enforcement officer should be permitted to intercept the contents of the communications of an unauthorized user of an electronic communication service provider to or over that service without a court order when:
  • (i) the provider reasonably determines that the communications threaten to disrupt the provider's service; and
  • (ii) the provider consents to the interception, provided that the officer intercepts and uses the communications in the proper performance of the officer's duties.
  • (c) When a law enforcement officer intercepts the contents of a private communication with the consent of one of the parties to the communication pursuant to subdivision (a), or with the consent of an electronic communication service provider pursuant to subdivision (b), the officer should record it whenever reasonably possible and appropriate to do so, employing devices and techniques which will ensure that the record will be, insofar as practicable, complete and accurate. Administrative procedures should be followed in determining when it is not appropriate to make such a record, and when a record is made, procedures similar to those set forth in Standards 2-4.14, and 2-7.1 should be followed.

Standard 2-5.2. Intercepting communications in an emergency situation

  • (a) When a law enforcement officer reasonably believes that an emergency situation exists which involves substantial and imminent danger to human life, the officer should be permitted to conduct electronic surveillance without a prior judicial order when:
  • (i) the law enforcement officer is authorized to intercept those communications:
  • (A) in the case of a federal law enforcement officer, by the Attorney General, the Deputy Attorney General or the Associate Attorney General; or
  • (B) in the case of a state or local law enforcement officer, by the principal prosecuting attorney of the state or local government, or by a high ranking subordinate, when specifically permitted by state law and when specially designated by the principal prosecuting attorney to authorize the interception of communications in such a situation; and
  • (ii) the prosecuting official authorizing the interceptions pursuant to subdivision (i) first determines:
  • (A) that there are grounds consistent with these standards upon which an order could be obtained authorizing an interception; and
  • (B) because of the emergency, it is not practicable to make an application for such an order before the communications are intercepted.
  • (b) The requirements of making and protecting the integrity of a record of the contents of the communications, set forth in Standard 2-4.14, shall be followed during any period of emergency surveillance.
  • (c) Communications intercepted in conformance with Standard 2-5.2(a) may be disclosed and used in accordance with Standard 2-4.16 when:
  • (i) the prosecuting officer who authorized the interceptions, or when that officer is absent or unavailable, another prosecuting officer who could have authorized the interceptions pursuant to Standard 2-5.2(a)(i), makes an application for an order approving the interceptions to a judge with authority to issue an order authorizing the interceptions, had such an application been made;
  • (ii) the application sets forth the material facts upon which the prosecuting officer relied in authorizing the interceptions;
  • (iii) the application is made within a reasonable period of time but not more than forty-eight hours after the interception of communications has begun;
  • (iv) the communications were otherwise intercepted in accordance with these standards; and
  • (v) the judge to whom the application is made approves the interceptions based upon a determination that the application demonstrates that, at the time the prosecuting officer authorized the interceptions:
  • (A) the law enforcement officer reasonably believed he was confronted with the requisite emergency situation; and
  • (B) there were grounds consistent with these standards upon which an order authorizing the electronic surveillance could have been issued.
  • (vi) The judge to whom the application is made should be permitted to require the furnishing of additional facts under oath or information, which should be duly recorded.
  • (d) Unless an application for approval is made and granted, the intercepted communications should be treated as impermissibly obtained pursuant to Standard 2-6.2(a) and an inventory filed as provided in Standard 2-4.15.

PART VI SANCTIONS

Standard 2-6.1. Sanctions, in general

Except as otherwise permitted by these standards, electronic surveillance by any person should be expressly prohibited, and this prohibition should be enforced with appropriate criminal, civil, and evidentiary sanctions.

Standard 2-6.2. Evidentiary sanctions; exceptions

  • (a) Except as otherwise expressly permitted under these standards, a private communication intercepted by a law enforcement officer by means of electronic surveillance, and any evidence derived therefrom, should not be received in evidence in any trial, hearing, or proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority.
  • (b) When a law enforcement officer intercepts a private communication by means of electronic surveillance conducted in a manner not expressly permitted by these standards, the communication, and any evidence derived therefrom, may nonetheless be received in evidence:
  • (i) in a prosecution for the unlawful interception of that communication; or
  • (ii) if the intercepted communication, or evidence derived therefrom, includes exculpatory information, and the defendant offers it in evidence, provided, however, that in response, the prosecution may offer evidence of, or derived from, that communication or another communication, if it would tend to rebut the evidence offered by the defendant pursuant to this subdivision.
  • (c) When a prosecuting attorney intends to offer evidence of the contents of communications obtained by a law enforcement officer by means of electronic surveillance, or evidence derived therefrom, the prosecuting attorney should give notice of that intention within a reasonable period before trial, and should disclose to the defendant at that time:
  • (i) the order or orders pursuant to which the electronic surveillance was conducted;
  • (ii) the applications for those orders;
  • (iii) the progress reports submitted to the court pursuant to those orders;
  • (iv) copies of the records of the communications the prosecuting attorney intends to offer in evidence;
  • (v) such other material as may be required by the judge before whom the suppression motion referred to in subdivision (f) is made for purposes of the motion.
  • (d) For the purpose of protecting the privacy of any person who is not a subject of the prosecution, the court may, upon the application of the prosecuting attorney or the defendant, or sua sponte, issue a protective order prohibiting or regulating the disclosure to others of the contents of these materials.
  • (e) When the prosecutor gives notice pursuant to subdivision (c) of this standard of the intent to offer evidence obtained by means of electronic surveillance, if communications obtained by the electronic surveillance were minimized pursuant to Standard 2-4.9:
  • (i) the court should order that the communications that the minimizing officer determined were not otherwise subject to interception be disclosed to the defendant;
  • (ii) if the defendant intends to offer in evidence the contents of any of those communications in any proceeding, the defendant should give notice of that intention to the prosecutor within a reasonable period of time before the proceeding;
  • (iii) if the defendant gives such notice, the court should order, upon request of the prosecutor, that the communications disclosed to the defendant pursuant to subdivision (i) be disclosed to the prosecutor; and
  • (iv) when communications are disclosed to the defendant pursuant to subdivision (i), or to the prosecutor pursuant to subdivision (iii), the court should issue a protective order prohibiting or regulating the disclosure of those communications to others.
  • (f) Any party aggrieved by the interception, use, or disclosure of private communications by law enforcement, or of evidence derived therefrom, otherwise than as expressly permitted under these standards, should be permitted to move to suppress those communications or that evidence. The motion should be made prior to the trial, hearing, or other proceeding unless there was no opportunity to make the motion or the party was unaware of the grounds on which the motion could be made. Where such a motion is made and granted, prior to the attaching of jeopardy, during the course of a criminal prosecution, the prosecuting attorney, where necessary, should be afforded a right of appeal provided that the appeal is not taken for the purpose of delay and is diligently prosecuted.
  • (g) Such evidence should be suppressed if:
  • (i) the communications were obtained in violation of the Constitution of the United States, or, in the case of an order issued by a state or local judge, of the state constitution;
  • (ii) the communications were obtained pursuant to an order issued by a judge other than as permitted by Standard 2-4.1, or upon an application made by an applicant other than as permitted by Standard 2-4.2, or upon an application failing to make one of the showings required by Standard 2-4.3; or
  • (iii) the evidence is obtained in violation of a statutory provision designed to enforce one of the general principles set forth in these standards governing electronic surveillance, unless the violation was committed in reasonable reliance upon an electronic surveillance order.
  • (h) When a person who is not a law enforcement officer intercepts the contents of a private communication in a manner not authorized pursuant to these standards or prohibited by law, a law enforcement officer should not be permitted to receive and use that communication unless:
  • (i) the person who intercepts the communication does not do so as an agent of a law enforcement officer;
  • (ii) the officer receives and uses the communication in the proper performance of the officer's duties; and
  • (iii) the communication is used with respect to a crime in which physical injury to a person or serious physical damage to property is caused or threatened.

In exercising discretion to use a communication so intercepted in a criminal prosecution, the prosecuting attorney should consider the manner in which the communication was obtained and the effect of its use on privacy.

Standard 2-6.3. Criminal sanctions

  • (a) The possession, sale, distribution, advertisement, and manufacture of devices primarily useful for the surreptitious interception of private communications should be regulated in order to prevent the use of such devices in a manner not authorized by these standards;
  • (b) The following conduct should be made criminal:
  • (i) the intentional interception of private communications by means of electronic surveillance conducted in a manner not authorized by these standards;
  • (ii) the intentional use or disclosure of private communications intercepted by means of electronic surveillance, or evidence derived therefrom, when the electronic surveillance is conducted in a manner not authorized by these standards, or when the communications are used or disclosed in such an unauthorized manner;
  • (iii) the possession, sale, distribution, advertisement, or manufacture of a device primarily useful for the surreptitious interception of private communications in violation of a regulation adopted pursuant to Standard 2-6.3(a);
  • (iv) the intentional promotion, whether by advertising or otherwise, of any device for use in intercepting such communications in a manner not authorized by these standards.
  • (c) Any device possessed, used, sold, distributed, or manufactured in violation of these prohibitions or regulations should be subject to confiscation.

Standard 2-6.4. Civil sanctions

  • (a) Except as otherwise expressly permitted by these standards, the use of electronic surveillance, or the use or disclosure of a communication intercepted by means of electronic surveillance, or evidence derived therefrom, should give rise to a civil cause of action against any person or governmental agency who so conducts the electronic surveillance, or knowing or having reason to know that such communication or evidence was obtained by electronic surveillance, who so discloses or uses such communication or evidence derived therefrom, or procures or authorizes another to do so.
  • (b) Good faith reliance on a court order or other legislative authorization should constitute a complete defense to civil recovery.

PART VII
ADMINISTRATIVE REGULATIONS

Standard 2-7.1. Administrative regulations

  • (a) Law enforcement agencies should adopt administrative regulations, including standards, procedures, and sanctions, dealing with the various aspects of the use of electronic surveillance techniques. The regulations, among other things, should:
  • (i) limit the number of officers in the agency authorized to employ the techniques;
  • (ii) specify the circumstances under which the techniques may be used, giving preference to those which invade privacy least;
  • (iii) set out the manner in which the techniques must be used to assure authenticity;
  • (iv) require that officers who execute electronic surveillance orders first be trained in the law and techniques of electronic surveillance;
  • (v) require the close supervision of officers authorized to employ the techniques;
  • (vi) permit an officer to execute an order authorizing electronic surveillance only after the officer has read the order and the application, and has been instructed by the prosecuting attorney concerning the crime for which electronic surveillance has been authorized, the objectives of the electronic surveillance, the parties whose communications may be intercepted, the types of communications which may be intercepted, and the obligation to minimize the interception of communications which are not otherwise subject to interception;
  • (vii) circumscribe the acquisition of, custody of, and access to electronic equipment by agents; and
  • (viii) restrict the transcription of, custody of, and access to overheard or recorded communications by agents.
  • (b) Materials on the regulations should be incorporated into general and special training programs of the agency.

PART VIII PRIVATE COMMUNICATIONS ACQUIRED BY AND RECEIVED FROM ELECTRONIC COMMUNICATION SERVICE PROVIDERS

Standard 2-8.1. Communications acquired by an electronic communication service provider

  • (a) An electronic communication service provider not offering its services to the public, and the principals, employees and agents of such a provider, should be permitted to acquire, use and disclose the contents of the private communications transmitted over or stored with its service for any lawful purpose.
  • (b) public electronic communication service provider, and its principals, employees and agents, should be permitted to acquire, use and disclose the contents of the private communications of its customers and other authorized and unauthorized users only:
  • (i) to the extent necessary to render the service, and to maintain and protect the availability, integrity and confidentiality of the system; or
  • (ii) in the case of a stored communication:
  • (A) to the sender or an intended receiver of the communication, or an agent of the sender or an intended receiver; or
  • (B) with the consent of the sender or an intended receiver of the communication; or
  • (iii) to a law enforcement officer:
  • (A) if otherwise authorized by these standards, or
  • (B) if the public electronic communication service provider obtained the contents of the communication in a manner permitted by these standards, or obtained them inadvertently, and the communication appears to pertain to the commission of a crime.

Standard 2-8.2. Communications received by law enforcement from an electronic communication service provider

  • (a) A law enforcement officer should be permitted to receive the contents of a private communication from an electronic communication service provider when:
  • (i) the communication is evidence of a crime and was lawfully acquired by the provider;
  • (ii) the communication has been in storage with the provider, either temporarily and incidental to its transmission, or for purposes of its backup protection, and is obtained pursuant to a search warrant directing the provider to disclose the communication based on the application of an appropriate law enforcement official establishing probable cause to believe that the communication constitutes evidence of a crime; or
  • (iii) the communication has been in storage with the provider for more than 45 days, either temporarily and incidental to its transmission, or for purposes of its backup protection, and is obtained pursuant to a trial, grand jury or administrative subpoena authorized by federal or state law, or pursuant to a court order issued upon the application of a prosecuting attorney establishing reasonable grounds to believe that the contents of the communication are relevant and material to an ongoing criminal investigation.
  • (b) When an application for a search warrant is made pursuant to Standard 2-8.2(a)(ii), the applicant should be required to inform the judge from whom the warrant is sought of any previous applications made by or known to the applicant for a warrant requiring the disclosure of stored communications of the same customer.
  • (c) When an electronic communication service provider discloses private communications to a law enforcement officer:
  • (i) the law enforcement agency to which the disclosure is made should be required to give prior notice of the disclosure to the customer if the disclosure is made pursuant to a trial, grand jury or administrative subpoena, or pursuant to a court order, provided that a court may postpone such notice upon a showing of good cause;
  • (ii) based upon a showing of good cause, a court may prohibit the provider from notifying the customer of the disclosure.
  • (d) Upon the written request of a law enforcement officer or prosecuting attorney, an electronic communication service provider should be required to take all necessary steps to preserve a record of the contents of a stored electronic communication pending the issuance of a court order or subpoena. If such a request is made, the provider should be required to preserve the record for ninety days. Upon a renewed written request by the prosecuting attorney, the provider should be required to preserve the record for an additional ninety days.
  • (e) A law enforcement officer should be permitted to disclose, receive or use the contents of a private communication which the officer has obtained from an electronic communication service provider by means authorized by these standards, or evidence derived therefrom, only to the extent it is in the proper performance of the officer's official duties.

Standard 2-8.3. Communications received by other persons from an electronic communication service provider.

A person who is not a law enforcement officer:

  • (a) should be prohibited from obtaining from an electronic communication service provider the contents of a private communications stored with that provider unless disclosure of that communication by the provider to that person is permitted by these standards or is otherwise lawful; and
  • (b) should be permitted to disclose or use the contents of such a communication if the person obtains the contents of the communication lawfully and uses or discloses it for any lawful purpose.