Wiretaps

Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster
Police TechnologyPolice Technology
Chapter FourteenChapter Fourteen
WiretapsWiretaps

Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond
Learning ObjectivesLearning Objectives
 Context and value of gathering covertContext and value of gathering covert
informationinformation
 Difference between device-identifyingDifference between device-identifying
information and call-content informationinformation and call-content information
 Impact of Communications Assistance for LawImpact of Communications Assistance for Law
Enforcement Agencies (CALEA)Enforcement Agencies (CALEA)
 Legal and practical aspects of wiretapsLegal and practical aspects of wiretaps
 PEN registries, traps, traces and the InternetPEN registries, traps, traces and the Internet
 The Patriot ActThe Patriot Act

What is Electronic Surveillance?What is Electronic Surveillance?
 InterceptingIntercepting
information byinformation by
electronic meanselectronic means
from:from:
 Telephone calls.Telephone calls.
 Private conversationsPrivate conversations
 InternetInternet
communicationscommunicationsPhotograph provided by Robert Eplett, CaliforniaPhotograph provided by Robert Eplett, California
Governor’s Office of Emergency ServicesGovernor’s Office of Emergency Services

Legal History of WiretapsLegal History of Wiretaps
 1928 Olmstead v United States – not illegal1928 Olmstead v United States – not illegal
unless trespass is involved.unless trespass is involved.
 1934, Congressional Communications Act –1934, Congressional Communications Act –
although it said that wiretaps were essentiallyalthough it said that wiretaps were essentially
illegal, it was still interpreted – no trespass, notillegal, it was still interpreted – no trespass, not
illegalillegal
 1967 court decisions provided telephone1967 court decisions provided telephone
communications with the full protection of thecommunications with the full protection of the
Fourth Amendment – No warrant no tap.Fourth Amendment – No warrant no tap.

 1968 Omnibus Crime Control and Safe1968 Omnibus Crime Control and Safe
Streets Act - specified rules state andStreets Act - specified rules state and
federal organizations must follow.federal organizations must follow.
 Required both prosecutorial and judicialRequired both prosecutorial and judicial
reviewreview
 1994 Communications Assistance for Law1994 Communications Assistance for Law
Enforcement Act (CALEA) - requiredEnforcement Act (CALEA) - required
commercial carriers cooperation.commercial carriers cooperation.

 1986 Electronic Communications Privacy1986 Electronic Communications Privacy
Act (ECPA) – Established a lowerAct (ECPA) – Established a lower
threshold of judicial review for capturingthreshold of judicial review for capturing
device identifying information.device identifying information.
 2001 USA PATRIOT Act – reduced2001 USA PATRIOT Act – reduced
threshold for some federal wiretaps and, inthreshold for some federal wiretaps and, in
some instances, for “roving” taps.some instances, for “roving” taps.

Wiretap DefinitionsWiretap Definitions
 Call content is the substance of the call –Call content is the substance of the call –
the conversation.the conversation.
 For internet communications this would be theFor internet communications this would be the
subject line and body of the message in ansubject line and body of the message in an
email communication.email communication.
 Device identifying information is theDevice identifying information is the
commonly the telephone number of thecommonly the telephone number of the
callers.callers.
 For internet communications it would be the toFor internet communications it would be the to
and from lines of an email message.and from lines of an email message.

Wiretap DefinitionsWiretap Definitions
 Operational Security refers to theOperational Security refers to the
concept that the target, orconcept that the target, or
unauthorized persons, should notunauthorized persons, should not
have knowledge of the wiretaphave knowledge of the wiretap
during the investigation.during the investigation.
 Both the agency conducting theBoth the agency conducting the
wiretap and the service provider havewiretap and the service provider have
responsibilities.responsibilities.
 Primarily, the service provide mustPrimarily, the service provide must
ensure transparency – that is aensure transparency – that is a
tapped call sounds no different to thetapped call sounds no different to the
target.target.
Typical wiretap hardware.Typical wiretap hardware.
Photograph provided by ADACS Corp.Photograph provided by ADACS Corp.

General Wiretap RulesGeneral Wiretap Rules
 Generally requires both prosecutorial andGenerally requires both prosecutorial and
judicial review.judicial review.
 Wiretaps require probable cause like anyWiretaps require probable cause like any
search warrant.search warrant.
 Must focus on gaining specific informationMust focus on gaining specific information
about a crime – not just generalabout a crime – not just general
investigative informationinvestigative information

 To obtain court order, investigators mustTo obtain court order, investigators must
show that the information cannot beshow that the information cannot be
obtained in another manner.obtained in another manner.
 Investigators must provide the court with:Investigators must provide the court with:
 Articulate specific offense.Articulate specific offense.
 Specific place to be tapped.Specific place to be tapped.
 Types of conversations believed to beTypes of conversations believed to be
overheard.overheard.

 Because wiretaps require judicial andBecause wiretaps require judicial and
prosecutorial review (and significantprosecutorial review (and significant
technology and personnel resources) it istechnology and personnel resources) it is
likely the process will require significantlikely the process will require significant
bureaucratic review within theirbureaucratic review within their
organization.organization.
 Intercepted conversations must beIntercepted conversations must be
recorded and protected from editing,recorded and protected from editing,
alteration or deletion.alteration or deletion.

 Investigators mustInvestigators must
protect the Rights of non-protect the Rights of non-
involved persons.involved persons.
 Generally, a conversationGenerally, a conversation
is monitored for a limitedis monitored for a limited
time and if it is not criminaltime and if it is not criminal
in nature the tap isin nature the tap is
discontinued – a single calldiscontinued – a single call
may be checkedmay be checked
periodically to determine ifperiodically to determine if
a relevant conversationa relevant conversation
has begun.has begun.

 In most states, only investigator’s withIn most states, only investigator’s with
specialized training can overhear livespecialized training can overhear live
conversations. However, once aconversations. However, once a
conversation has been recorded it isconversation has been recorded it is
considered evidence and anyone withconsidered evidence and anyone with
access to the evidence can listen to theaccess to the evidence can listen to the
conversations.conversations.

 Every five days the investigators mustEvery five days the investigators must
provide the judicial authority with aprovide the judicial authority with a
thorough review of the conversations.thorough review of the conversations.
 In addition to five day review, at the end ofIn addition to five day review, at the end of
the tap, the investigator’s must providethe tap, the investigator’s must provide
both the judicial and prosecutorialboth the judicial and prosecutorial
authority with a complete review.authority with a complete review.
 Thirty days after the conclusion of the tap,Thirty days after the conclusion of the tap,
each personeach person whose conversations werewhose conversations were
recorded must be notified in writing.recorded must be notified in writing.

Conducting a WiretapConducting a Wiretap
 Generally, wiretaps are expensive andGenerally, wiretaps are expensive and
technology intensive operations – thetechnology intensive operations – the
service provider intercepts the call andservice provider intercepts the call and
forwards it to a wire room.forwards it to a wire room.
 Because of the investment required manyBecause of the investment required many
jurisdictions use regional wire rooms –jurisdictions use regional wire rooms –
locations specifically designed andlocations specifically designed and
dedicated to wiretaps.dedicated to wiretaps.

Conducting a WiretapConducting a Wiretap
 Technology has madeTechnology has made
compliance muchcompliance much
simpler. For instance,simpler. For instance,
software can now besoftware can now be
used to recordused to record
conversations andconversations and
provide the necessaryprovide the necessary
reporting.reporting.Screen Capture provided by Pen-LinkScreen Capture provided by Pen-Link™™

Wiretap SoftwareWiretap Software
 As investigatorsAs investigators
monitor telephonemonitor telephone
conversations theyconversations they
have the ability tohave the ability to
connect to otherconnect to other
databases and begindatabases and begin
to integrate theto integrate the
information.information.Screen Capture provided by Pen-LinkScreen Capture provided by Pen-Link™™

Pens, Traps and TracesPens, Traps and Traces
 A Pen register refersA Pen register refers
to capturing call-to capturing call-
identifying informationidentifying information
with the content…whowith the content…who
is calling who, but notis calling who, but not
what they are takingwhat they are taking
about. This is anabout. This is an
device connected to adevice connected to a
local junction box andlocal junction box and
retrieved later.retrieved later.Photograph provided by Dianatek Corp.Photograph provided by Dianatek Corp.

 In compliance with withIn compliance with with
CALEA, cellular and hard-CALEA, cellular and hard-
wired telephone identifyingwired telephone identifying
information is now routed toinformation is now routed to
law enforcement via securelaw enforcement via secure
TCP/IP connection.TCP/IP connection.
 With Cellular information,With Cellular information,
the cell site can be knownthe cell site can be known
and the target’s generaland the target’s general
location determined.location determined.
Indicates cell receptionIndicates cell reception
Screen Capture provided by Pen-LinkScreen Capture provided by Pen-Link™™

 Device identifying information mayDevice identifying information may
establish co-conspirators or draw a linkestablish co-conspirators or draw a link
between the target and a crime.between the target and a crime.
 TRAPS and TRACES are very much likeTRAPS and TRACES are very much like
the caller identification informationthe caller identification information
commercially available to consumers.commercially available to consumers.
These devices let investigator’s who isThese devices let investigator’s who is
calling – typically used in stalking orcalling – typically used in stalking or
annoying telephone call investigations.annoying telephone call investigations.

Internet CommunicationsInternet Communications
 Through email, chatThrough email, chat
and websites, theand websites, the
internet has becomeinternet has become
a form of criminala form of criminal
communications.communications.
 Like wire taps,Like wire taps,
identifying informationidentifying information
and contentand content
information haveinformation have
different judicialdifferent judicial
thresholds.thresholds.

Internet CommunicationsInternet Communications
 Network diagnostic tools called packet sniffersNetwork diagnostic tools called packet sniffers
are used to inspect data as it flows across theare used to inspect data as it flows across the
Internet.Internet.
 These software programs can “sniff” forThese software programs can “sniff” for
addressees, addressors and content in emailaddressees, addressors and content in email
communications.communications.
 Recently, the Federal Bureau of InvestigationRecently, the Federal Bureau of Investigation
has not used its own “sniffer” Carnivore, buthas not used its own “sniffer” Carnivore, but
another commerical product.another commerical product.

Magic LanternMagic Lantern
 There are any number ofThere are any number of
software programs thatsoftware programs that
can be loaded onto acan be loaded onto a
computer to recordcomputer to record
keystrokes. This is a waykeystrokes. This is a way
to surreptitiously gainto surreptitiously gain
passwords.passwords.
 Most recent referred to asMost recent referred to as
Keylogger software,Keylogger software,
commercially availablecommercially available
and used on home as welland used on home as well
as commercial PCs.as commercial PCs.

Telephone and InvestigationsTelephone and Investigations
 More than justMore than just
receiving and sendingreceiving and sending
information, theinformation, the
telephone is antelephone is an
investigative tool.investigative tool.
 Miranda requiresMiranda requires
detention anddetention and
accusatory questionsaccusatory questions
 If the target is free toIf the target is free to
hang-up they are nothang-up they are not
detained and thereforedetained and therefore
no Miranda protectionno Miranda protection
Photograph provided by Robert Eplett, CaliforniaPhotograph provided by Robert Eplett, California
Governor’s Office of Emergency ServicesGovernor’s Office of Emergency Services

USA PATRIOT ActUSA PATRIOT Act
 Several sections are expiring and up for renewalSeveral sections are expiring and up for renewal
in 2005.in 2005.
 Judicial review threshold lowered for “roving”Judicial review threshold lowered for “roving”
warrants.warrants.
 A roving warrant means the target is the subject, notA roving warrant means the target is the subject, not
the telephone. If the target changes telephones thethe telephone. If the target changes telephones the
investigators can continue to monitorinvestigators can continue to monitor
 Made telephone and Internet intercepts similar.Made telephone and Internet intercepts similar.
 Changed threshold on use of FISA courts andChanged threshold on use of FISA courts and
domestic surveillance.domestic surveillance.

Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster
Police TechnologyPolice Technology
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Wiretaps

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