Law Enforcement - Listening In

The number of court-ordered intercepts of wire, oral, and electronic communications has risen 395% over the last three decades — but the total number in 2001 was just 1,491 people. If Big Brother was listening, he was listening only to 0.0007% of all adults..

Most wiretaps are ordered by the state. According to the Report on Applications for Orders Authorizing or Approving the Interception of Wire, Oral or Electronic Communications, the typical wiretap was authorized to last 27 days in 2001, a figure that has changed little in the last decade. The number of extensions, however, has increased. There were 601 extensions in 1991, a figure that rose almost steadily to a high of 1,367 in 1999. In 2001, a total of 1,008 extensions on wiretaps were granted.

Perhaps the most striking thing to be found in the statistics is that 68% of intercepts were placed on portable devices.⁶ Law enforcement has clearly recognized the way cellular phones and pagers have changed the way we communicate. Now, thanks to the Electronic Communications Privacy Act of 1986, "roving" wiretaps are used to target a specific person instead of a specific telephone or location. The next leading category was for personal residences, which had about 14% of all intercepts.

Location of Authorized Intercepts, 1998-2001

	1998	1999	2000	2001
Portable devices	NA	NA	719	1,007
Personal residence	436	341	244	206
Business	87	59	56	60
Other	584	663	62	101

The influence of the war on drugs, frequently noted in this book, is present in connection with this issue as well. Narcotics is the most specified offense in wiretap reports. Through the 1990s it represented more than half of all cited offenses in wiretap applications. It increased in the final years of the decade and in 2001 represented roughly 80% of all charges cited in applications. Drug offenders were targeted in 978 of the interceptions concluded in 1999, up from 471 in 1989, a 108% increase. Gambling and racketeering were the second and third most common offenses cited in applications.

Franklin D. Roosevelt was the first president formally to assign the FBI the task of wiretapping and eavesdropping on potential enemies of the United States. In the 1960s and 1970s, the government continued to bug political and social activists they perceived as threats to security — Martin Luther King Jr. being perhaps the most infamous example. This surveillance was made public in the 1970s. As a way to strike a balance between security and individual rights, the CIA was banned from most domestic investigations and the FBI implemented a more restrictive policy around its investigations. The Foreign Intelligence Surveillance Act (FISA) was adopted in 1978, which drew a line between law enforcement practices aimed at criminals and those directed at monitoring foreign powers. Wiretaps on foreign powers had less restrictive guidelines than those on domestic taps. All FISA wiretap orders went to the Foreign Intelligence Surveillance Court, composed of federal judges. These wiretaps stay secret forever.

Terrorism complicated this matter. Can we really make a distinction between foreign powers and domestic law enforcement when terrorists may walk on American soil? Part of the Patriot Act — anti-terrorism legislation passed after the September attacks — loosened the requirements on FISA wiretaps, encouraged law enforcement bodies to share information, and allowed for roving wiretaps.

In May 2002, the Foreign Intelligence Surveillance Court criticized the government for a number of problems found in FISA applications. The government admits to making 75 errors on applications in September 2000, which is just one example cited. Other problems: the FBI's e-mail intercept program formerly known as Carnivore captured correspondence from people not under investigation. The FBI also recorded cellular phone conversations of people not under investigation. The court claimed the government had violated demands for information sharing between investigators and prosecutors in terror cases. The FBI has stated that new procedures have dramatically reduced the number of mistakes they make.

Just how effective is electronic surveillance? In a 1995 study, only 17% of intercepted conversations were deemed incriminating by prosecutors. (Is this perhaps the reason for the increasing number of time extensions — investigators wishing to listen long enough until somebody finally says something?) Electronic surveillance is also expensive. The average cost is $48,198 per order, down from $61,436 in 1996.

Sources: Chart data comes from U.S. Department of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, 2000; Administrative Office of the U.S Courts, Report on Applications for Orders Authorizing or Approving the Interception of Electronic Communication, annual; Eggen, Dan. "FBI Misused Secret Wiretaps, According to Memo." Washington Post, October 10, 2002, p. A14; "Electronic Surveillance Increases Sharply in 1994, Efficiency Falls." available from the Electronic Privacy Information Center (EPIC) at http://www.epic.org/alert/epic_alert_2.07.html; historical data comes from Podesta, John and Peter Swire, "Speaking about wiretaps." available online at http://foi.missouri.edu/foiintelligence/speakingout.html; data available as of November 5, 2002.