Federal Wiretaps and Electronic Surveillance: Challenging Illegal Monitoring

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!

We’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!

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!

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!

How Can I Challenge Title III Wiretaps?

Title III violations can suppress ALL intercepted evidence plus fruits!

Grounds for suppression include: lack of probable cause, failure to show necessity, improper minimization, targeting wrong person, exceeding scope, improper sealing of tapes! Each violation potentially fatal to prosecution!

Necessity requirement is KEY! Government must show “normal investigative procedures have been tried and failed or reasonably appear unlikely to succeed”! If undercover agents, informants, or surveillance could work, wiretap not necessary!

We’ve won suppression when government failed to show necessity – had cooperating witnesses, physical surveillance, financial records! Why did they need wiretap? Convenience not necessity! Court suppressed 6 months of calls!

Franks hearings challenge application affidavits! If affiant lied or omitted material facts to get wiretap order, entire wiretap voids! Must show substantial preliminary showing of false statement made knowingly or recklessly!

One case we won: affidavit claimed informant personally witnessed drug deals – turned out informant was in prison during alleged observations! Entire wiretap suppressed! All derivative evidence excluded!

What Is the Minimization Requirement?

Minimization protects privacy by limiting irrelevant interceptions!

Agents must minimize interception of non-pertinent calls – spot-monitor to determine if call is relevant, terminate if clearly innocent, don’t record privileged communications!

But minimization is OFTEN violated! Agents record everything claiming “can’t determine relevance until later”! Personal calls, attorney calls, medical calls – all intercepted! We’ve seen agents record attorney-client conversations for months!

Minimization violations can suppress entire wiretap! In United States v. Renzi, court suppressed ALL wiretap evidence because government failed to minimize attorney-client calls! Devastating loss for prosecution!

Challenging minimization requires detailed review of all intercepted calls! Must show pattern of recording non-pertinent conversations! We’ve analyzed thousands of call logs showing agents recorded 70% irrelevant calls! Court found systemic minimization failure!

Attorney-client calls are CRITICAL! Any interception of privileged communications can be fatal! We’ve gotten cases dismissed when prosecutors heard strategy discussions! Taint team procedures don’t cure the violation!

What Is the Fruits of the Poisonous Tree Doctrine?

Illegal surveillance taints ALL derivative evidence!

If Title III wiretap is suppressed, everything discovered from it gets excluded – physical evidence found based on wiretap leads, witness statements from people identified through calls, financial records obtained because wiretap revealed accounts!

This doctrine can DESTROY prosecutions! Government builds entire case on wiretap – learns about stash houses, identifies co-conspirators, discovers financial schemes! Wiretap suppressed? Entire case collapses! We’ve seen RICO prosecutions dismissed when foundational wiretap excluded!

Government tries “independent source” and “inevitable discovery” exceptions! Claims would have found evidence anyway through other means! But burden is on government to prove with clear and convincing evidence!

We challenge by showing government’s entire investigation stemmed from wiretap! No informants before wiretap! No surveillance! No independent leads! Everything derived from illegal interception! One suppressed call leads to suppression of all evidence!

Attenuation doctrine also limits fruits – if chain between illegal wiretap and evidence is too attenuated, evidence might not be excluded! But we’ve successfully argued even remote derivatives should be suppressed when wiretap was egregiously illegal!

Can I Get Damages for Illegal Wiretaps?

Title III provides civil remedies for illegal interceptions!

Can sue for statutory damages, actual damages, punitive damages, attorney fees! Minimum $100 per day of violation or $10,000 – whichever is greater! Some plaintiffs have won millions!

But civil actions are HARD! Must prove willful violation – “good faith” defense protects agents who relied on court order even if invalid! We’ve seen egregious violations excused because “judge approved it”!

Qualified immunity protects government officials! Must show violation of “clearly established” rights! Courts give agents wide latitude! We’ve lost civil cases despite obvious Fourth Amendment violations because law wasn’t “clearly established”!

Criminal prosecution of illegal wiretapping almost NEVER happens! Even when Title III grossly violated! Agents might get reprimanded but rarely prosecuted! DOJ protects its own!

Best remedy is suppression in criminal case! Exclusion of evidence protects you from conviction! Civil damages are secondary! We focus on criminal suppression motions, not civil suits!

What About Informant Recordings?

One-party consent recordings don’t require Title III compliance!

If informant consents to recording his own calls, it’s not a “wiretap” under Title III! No court order needed! Federal agents can record any call where one party (the informant) consents!

This exception SWALLOWS the rule! Government uses confidential informants to record thousands of calls with no judicial oversight! Informant calls target, records everything, turns tapes to FBI! No probable cause! No necessity! No minimization!

We can’t suppress one-party consent recordings based on Title III! But CAN challenge on other grounds – entrapment, outrageous government conduct, coercion of informant! If informant was threatened with prosecution unless he cooperated, consent might be involuntary!

Some states require two-party consent! If conversation recorded in California (two-party state) and parties didn’t consent, might violate state wiretap law! But federal agents often claim federal law preempts!

Body wires on informants also one-party consent! Informant wears recording device during in-person meetings! No warrant needed! We’ve seen entire conspiracies built on body wire recordings of hundreds of conversations!

Why Federal Wiretap Defense Requires Electronic Surveillance Specialists

Look, we’re not your typical lawyers who just read wiretap transcripts. We’re former federal prosecutors who OBTAINED Title III orders and know EXACTLY what’s required for compliance!

We understand necessity requirements and when they’re not met! We know minimization standards and can prove violations! We’ve reviewed thousands of wiretap applications and know common defects! Most importantly, we know when Franks hearings will succeed and when to pursue fruits suppression!

Other lawyers don’t challenge wiretaps because they seem too technical! They accept transcripts as inevitable! They don’t understand sealing requirements or minimization standards! Their ignorance lets illegal surveillance stand!

Call us RIGHT NOW at 212-300-5196
Wiretap suppression motions must be filed BEFORE trial!
Former federal prosecutors – Electronic surveillance experts – Available 24/7!

Don’t accept wiretap evidence without challenge! Government violates Title III constantly! Rubber-stamp approval process creates constitutional violations! Every wiretap should be scrutinized for defects!

Remember – federal wiretaps aren’t infallible evidence, there vulnerable electronic surveillance subject to strict legal requirements. One necessity failure, one minimization violation, one Franks showing can suppress months of interceptions and destroy entire prosecutions. You need someone who understands both technology AND Title III law. Call us NOW before accepting wiretap evidence that should be suppressed!