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Electronic SurveillanceTitle III Orders
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The Order must meet the following requirements:
The authorizing language of the order should mirror the
requesting language
of the application and affidavit, stating that there is probable
cause to believe
that the named subjects are committing particular Title III
predicate offenses
(or, in the case of electronic communications, any Federal felony),
that they are
using the target facility or premises in furtherance thereof, and
that normal
investigative techniques have been tried and have failed, or are
reasonably
unlikely to succeed if tried, or are too dangerous to employ. 18
U.S.C. §
2518(3) and (4). The court then orders (again tracking the
language of the
application and affidavit) that agents of the investigative agency
are authorized
to intercept wire, oral, or electronic communications over the
described facility
or at the described premises. Id. The order should also
contain language
specifying the length of time the interception may be conducted,
and, if
necessary, authorizing surreptitious and/or forcible entry to
effectuate the
purpose of the order. Id. The order may also contain
language mandating
the government to make periodic progress reports (pursuant to 18
U.S.C. §
2518(6)), and ordering the sealing of these as well as the order,
application and
affidavit. In the case of a roving interception, the court must
make a specific
finding that the requirements of 18 U.S.C. § 2518(11)(a) and/or
(b) have been
demonstrated adequately. Any other special requests, such as
extra-jurisdictional interception in the case of mobile
interception devices,
should also be authorized specifically in the order.
The court should also issue a technical assistance order to
the
communications service provider. 18 U.S.C. § 2518(4). This is
a redacted
order that requires the telephone company or other service provider
to assist the
agents in effecting the electronic surveillance. An order to seal
all of the
pleadings should also be sought at this time.
The above pleadings should be transmitted by the most
expeditious means
possible to the Office of Enforcement Operations, either by fax,
directed to
(202) 616-2010 or (202) 616-2038, or by Federal Express or other
Department-approved carrier, addressed to the Office of Enforcement
Operations'
Electronic Surveillance Unit, Suite 900 West, 1001 G. Street, N.W,
Washington,
D.C. 20001. Prior to mailing, OEO should be contacted at (202)
514-6809 and
advised that the material is forthcoming, as well as any special
time
considerations. Note that it is a violation of Department security
regulations
to transmit the sensitive information in electronic surveillance
requests via
E-mail.
It should also be noted that OEO cannot forward a request for
authorization
to an appropriate Department official for review and approval
unless and until
a formal, written request for authorization is received from the
head of the
investigative agency that will be conducting the investigation.
Because of the
time normally necessary for the Federal investigative agencies to
complete their
internal review and recommendation process, at least one week
should be allowed
for such process. The Assistant United States Attorney should
ensure that the
investigator has contacted his/her agency's headquarters in
Washington, D.C., as
far in advance as possible so that any problems with the pleadings
or the
underlying investigation can be resolved as expeditiously as
possible.
Spinoff requests (viz., additional applications to
conduct
electronic surveillance at a new location or over a new facility)
are considered
original applications and are reviewed in the same manner as
described above.
Extension requests still need Department approval, but only require
review by
OEO, and not the investigative agency. While the exigencies of
investigative
work occasionally make the normally required lead time impossible,
the timeliness
with which an application is reviewed and authorized is largely
under the control
of the Assistant United States Attorney handling the case. When
coordinating an
investigation or planning extension requests, it is important to
allow sufficient
time for the Title III application to be reviewed by both OEO and,
if
appropriate, the investigative agency.
Questions or requests for assistance may be directed to OEO's
Electronic
Surveillance Unit at (202) 514-6809. Sample Title III forms are
available by
E-mail from that Unit.
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