28
Electronic SurveillanceTitle III
Applications
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The Application should meet the following requirements:
- It must be prepared by an applicant identified as
a law
enforcement or investigative officer. The application must be in
writing, signed
by the United States Attorney, an Assistant United States Attorney,
and made
under oath. It must be presented to a Federal district court or
court of appeals
judge and be accompanied by the Department's authorization
memorandum signed by
an appropriate Department of Justice official. The application
may not be
presented to a magistrate. See 18 U.S.C. §§
2510(9) and
2516(1); see also In re United States of America, 10
F.3d 931 (2d
Cir. 1993), cert. denied, 115 S. Ct. 64 (1994).
- It must identify the type of communications to be intercepted.
"Wire
communications" include "aural transfers" (involving the human
voice) that are
transmitted, at least in part by wire, between the point of origin
and the point
of reception, i.e., telephone calls. 18 U.S.C. § 2510(1).
This includes
cellular phones, cordless phones, voice mail, and voice pagers, as
well as
traditional landline telephones. "Oral communications" are
communications
between people who are together under circumstances where the
parties enjoy a
reasonable expectation of privacy. 18 U.S.C. § 2510(2). An
"electronic
communication" most commonly involves digital-display paging
devices or fax
machines, but also includes electronic mail, computer
transmissions, and, in some
cases, satellite transmissions. It does not include tone-only
paging devices,
tracking devices (as defined by 18 U.S.C. 3117), or electronic
funds transfer
information. 18 U.S.C. § 2510(12).
- It must identify the specific Federal offenses for which there
is probable
cause to believe are being committed. The offenses that may be the
predicate for
a wire or oral interception order are limited to only those set
forth in 18
U.S.C. § 2516(1). In the case of electronic communications, a
request for
interception may be based on any Federal felony, pursuant to 18
U.S.C. §
2516(3).
- It must provide a particular description of the nature and
location of the
facilities from which, or the place where, the interception is to
occur. An
exception to this is the roving interception provision set forth in
18 U.S.C.
§ 2518(11)(a) and (b). The specific requirements of the roving
provision are
discussed in USAM 9-7.111.
Briefly, in the case
of a roving oral interception, the application must show, and the
court order
must indicate, that it is impractical to specify the location(s)
where oral
communications of a particular named subject are to be intercepted.
18 U.S.C.
§ 2518(11)(a)(ii) and (iii). In the case of a roving wire or
electronic
interception, the application must state, and the court order must
indicate, that
a particular named subject is using various and changing facilities
for the
purpose of thwarting electronic surveillance. 18 U.S.C. §
2518(11)(b)(ii)
and (iii). The accompanying DOJ document authorizing the roving
interception
must be signed by an official at the level of an Assistant Attorney
General
(including Acting AAG) or higher. 18 U.S.C. § 2518(11)(a)(i)
and (b)(i).
- It must identify, with specificity, those persons known to be
committing the
offenses and whose communications are to be intercepted. In
United States v.
Donovan, 429 U.S. 413 (1977), the Supreme Court stated that 18
U.S.C. §
2518(1)(b)(iv) requires the government to name all individuals whom
it has
probable cause to believe are engaged in the offenses under
investigation, and
whose conversations it expects to intercept over or from within the
targeted
facilities. It is the Department's policy to name as potential
subjects all
persons whose involvement in the alleged offenses is indicated.
See
United States v. Ambrosio, 898 F. Supp. 177 (S.D.N.Y. 1995);
United
States v. Marcy, 777 F. Supp. 1400 (N.D. Ill. 1991); United
States v.
Martin, 599 F.2d 880 (9th Cir.), cert. denied, 441 U.S.
962 (1979).
- It must contain a statement affirming that normal
investigative procedures
have been tried and failed, are reasonably unlikely to succeed if
tried, or are
too dangerous to employ. 18 U.S.C. § 2518(1)(c). The
applicant may then
state that a complete discussion of attempted alternative
investigative
techniques is set forth in the accompanying affidavit.
- It must contain a statement affirming that the affidavit
contains a
complete statement of the facts--to the extent known to the
applicant and the
official approving the application--concerning all previous
applications that
have been made to intercept the oral, wire, or electronic
communications of any
of the named subjects or involving the target facility or location.
18 U.S.C.
§ 2518(1)(e).
- In an oral (and occasionally in a wire or electronic)
interception, it must
contain a request that the court issue an order authorizing
investigative agents
to make all necessary surreptitious and/or forcible entries to
install, maintain,
and remove electronic interception devices in or from the targeted
premises (or
device). When effecting this portion of the order, the applicant
should notify
the court as soon as practicable after each surreptitious entry.
- It should, when requesting the interception of wire
communications, contain
a request that the authorization and court order apply not only to
the target
telephone number(s) identified therein, but to any changed
telephone number(s)
subsequently assigned to the same cable, pair, and binding posts
used by each
targeted landline telephone. With regard to a cellular telephone,
the request
should be that the authorization and order apply not only to any
identified
telephone number, but also to any changed telephone number or any
other telephone
subsequently assigned to the instrument bearing the same electronic
serial number
as the targeted cellular phone. The application should also
request that the
authorization apply to background conversations intercepted in the
vicinity of
the target phone while the phone is off the hook or otherwise in
use. See
United States v. Baranek, 903 F.2d 1068 (6th Cir. 1990).
- It must contain, when concerning the interception of wire
communications,
a request that the court issue an order directly to the service
provider, as
defined in 18 U.S.C. § 2510(15), to furnish the investigative
agency with all
information, facilities, and technical assistance necessary to
facilitate the
ordered interception. 18 U.S.C. § 2511(2)(a)(ii). The
application should
also request that the court direct service providers and their
agents and
employees not to disclose the contents of the court order or the
existence of the
investigation. Id.
- It should contain a request that the court's order authorize
the requested
interception until all relevant communications have been
intercepted, not to
exceed a period of thirty (30) days from the earlier of the day on
which the
interception begins or ten (10) days after the order is entered.
18 U.S.C. §
2518(5).
- It should contain a statement affirming that all interceptions
will be
minimized in accordance with Chapter 119 of Title 18, United States
Code, as
described further in the affidavit. 18 U.S.C. §
2518(5).
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