Federal Wiretaps and Electronic Surveillance: Challenging Illegal Monitoring
So your probably sitting there learning that FBI has been recording your phone calls for months or that prosecutors have transcripts of your private conversations. Maybe its Title III wiretap on your cell phone. Maybe there’s pen register showing all numbers you called. Or maybe you just discovered your facing charges based entirely on intercepted communications. Look, we get it. Your ABSOLUTELY VIOLATED by this privacy invasion. And you should be OUTRAGED! Because federal electronic surveillance requires strict compliance with Title III and one violation can suppress ALL intercepted evidence!
What Is Title III of the Wiretap Act?
Let me explain the surveillance state your living in. Title III requires judicial authorization before intercepting wire, oral, and electronic communications – phone calls, emails, text messages, encrypted apps!
But here’s what’s terrifying – Title III wiretap orders are INCREDIBLY powerful! Authorize 30 days of continuous interception! Renewable indefinitely! We’ve seen wiretaps run for 18+ months capturing thousands of calls!
Requirements are supposed to be strict – must show probable cause, identify target, demonstrate necessity, include minimization procedures! But in practice? Judges rubber-stamp applications! Over 95% of Title III applications approved! Some judges approve hundreds without denying single one!
The scope is MASSIVE! Not just target’s phone – everyone who calls target gets intercepted! Your lawyer, your spouse, your priest! All calls recorded! We’ve seen wiretaps capture privileged attorney-client communications because client called lawyer from tapped phone!
What Are Pen Registers and Trap-and-Trace Devices?
These are “non-content” surveillance tools with LOWER requirements!
Pen register records outgoing call numbers, trap-and-trace records incoming numbers! Don’t capture conversation content but show WHO you communicated with and WHEN!
Don’t need probable cause – just “relevant to ongoing investigation”! Patriot Act expanded pen/trap to Internet – now includes email addresses, IP addresses, URLs visited! Government sees your entire digital footprint!
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(212) 300-5196We’ve seen pen register data used to prove conspiracy – “defendant called co-conspirator 47 times during relevant period”! Even though no call content intercepted, call patterns prove association! One client convicted largely on pen register showing he called co-defendants daily!
Challenging pen/trap orders is HARD! Courts give government wide latitude! “Relevant to investigation” is incredibly low bar! Almost every request gets approved! We’ve challenged only when orders are overbroad or target protected activities!
What About FISA Surveillance?
Foreign Intelligence Surveillance Act creates PARALLEL system for national security cases!
FISA allows surveillance when target is “foreign power or agent of foreign power” – but definition is BROAD! Includes American citizens with foreign contacts! Business dealings with foreign companies! Academic collaborations!
Todd Spodek
Lead Attorney & Founder
Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience. His aggressive approach has secured dismissals and acquittals in cases others deemed unwinnable.
FISA court operates in SECRET! Applications and orders are classified! Defendant usually never learns about FISA surveillance! Even at trial, government claims “state secrets privilege” to avoid disclosure!
You just found out that federal agents had been tapping your phone for over four months, recording hundreds of personal and business calls. Your lawyer obtained the wiretap application and noticed the government never explained why less intrusive investigative methods wouldn't have worked.
Can we get all of those recorded conversations thrown out of court if the wiretap authorization was defective?
Under Title III of the Omnibus Crime Control and Safe Streets Act (18 U.S.C. §§ 2510-2522), the government must demonstrate to a judge that normal investigative procedures have been tried and failed, or reasonably appear unlikely to succeed, before a wiretap can be authorized. If prosecutors skipped this 'necessity requirement' or the supervising judge failed to make adequate findings, we can file a motion to suppress under 18 U.S.C. § 2518(10)(a), which could exclude every intercepted conversation from evidence. We would also scrutinize whether the wiretap exceeded its authorized scope or duration and whether agents followed the mandatory minimization protocols designed to protect your Fourth Amendment rights. A successful suppression motion in a wiretap case can dismantle the prosecution's entire case, since these intercepted communications are often the central evidence they rely on.
This is general information only. Contact us for advice specific to your situation.
FISA surveillance is EASIER to get than Title III! Different probable cause standard! No necessity requirement! Longer authorization periods! We’ve seen FISA surveillance continue for YEARS on American citizens!
The worst part? FISA evidence rarely gets disclosed! Government uses “parallel construction” – gets leads from FISA then builds case using “normal” investigative methods! Defendant never knows FISA surveillance existed! Can’t challenge what you don’t know about!
