Is My Phone Wire-Tapped

You cannot know for certain, and that uncertainty should affect how you communicate about anything connected to the investigation.

A federal wiretap requires a court order issued under Title III of the Omnibus Crime Control and Safe Streets Act. The order is sought by the government through an application to a federal district court judge, who must find probable cause that the target of the intercept has committed or is about to commit a specified serious offense, that the communications facility to be intercepted is used by that person in connection with the offense, and that normal investigative procedures have been tried and have failed or appear likely to fail. The order is issued ex parte, without notice to the target, and the intercepts are conducted without the target’s knowledge.

The existence of a wiretap order in a specific case will not be disclosed to the target until the government decides to use the intercepted communications as evidence, at which point disclosure is required by law. Before that disclosure, the target has no official means of knowing whether their communications are being intercepted.

The Indicators of Possible Interception

Certain features of a DEA opioid investigation suggest that electronic surveillance may be employed. Investigations targeting multiple practitioners whose coordination is relevant to the government’s theory, investigations where the government appears to have knowledge of specific conversations that have not been produced in any document subpoena, and investigations where the charges ultimately filed reflect a level of operational detail that documentary evidence alone could not have provided all suggest the possibility of electronic surveillance.

In three opioid fraud cases I have been involved with where wiretap evidence was eventually disclosed, the practitioners involved noticed, in retrospect, that investigators seemed to know the substance of conversations that had occurred in the weeks before their arrests. The knowledge felt inexplicable until the wiretap applications were disclosed in discovery. The knowledge was not inexplicable. It was recorded.

Consensual Monitoring as the More Common Alternative

Court-authorized wiretaps are resource-intensive to obtain and to monitor, and the DEA uses them selectively in opioid cases. The more commonly employed surveillance technique is consensual monitoring: a recording made by one party to a conversation with the DEA’s knowledge and direction. A patient, a pharmacy employee, or a former staff member who is cooperating with the investigation may be recording conversations with the practitioner at the DEA’s direction, without a wiretap order and without the procedural requirements that Title III imposes.

Consensual recordings are made on mobile phones, recording devices, or other instruments that the cooperating source carries into the clinical encounter or other interaction with the practitioner. They are indistinguishable from normal conversation until they appear as evidence. The practitioner who assumes that the absence of any official notice of electronic surveillance means that conversations are not being recorded is a practitioner who has not accounted for the consensual monitoring technique.

Practical Guidance

The practical implication of the possibility of electronic surveillance is straightforward: statements made in any communication about the prescribing practice, the investigation, the patients involved, or the government’s conduct should be made with the understanding that they may be recorded and may be evidence. This applies to phone calls, text messages, emails, and in-person conversations with anyone whose cooperation with the investigation cannot be excluded.

It does not mean that the practitioner should cease communicating or that every conversation must be treated as a hostile encounter. It means that the content of communications about the investigation should be managed with counsel’s guidance, should be consistent with the clinical and legal positions the defense is developing, and should never include statements that would be inconsistent with those positions if heard by the government.

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Legal Scenario: What Would You Do?

Scenario

A federal agent calls you and says they "just want to ask a few questions" about a business transaction.

Is it safe to talk to them informally?

Attorney's Answer

There is no such thing as an informal conversation with a federal agent. Under 18 U.S.C. 1001, making any false statement to a federal agent is a felony, even without being under oath. Always consult an attorney before speaking with investigators.

This is general information only. Contact us for advice specific to your situation.

The practitioner who assumes that the conversation they are having about the investigation is private because it is occurring in their home, on a personal phone, with a person they trust, is a practitioner who has not accounted for the range of surveillance techniques the DEA employs. The conversation may be private. It may not be. The uncertainty is the relevant fact.

Communications Through Counsel

The most reliable protection against the risk of recorded communications being used as evidence is to conduct communications about the investigation through counsel. Attorney-client communications are protected by privilege and are not subject to the government’s surveillance authority in the same manner as ordinary communications. The practitioner who routes communications about the investigation’s substance through their attorney, rather than through direct communication with investigators, patients, or other interested parties, has substantially reduced the risk that those communications will become evidence.