As technology progresses, so do the investigative techniques of federal and state law enforcement agencies. It is no wonder there is such a privacy debate amongst scholars, politicians, prosecutors, criminal defense attorneys and, now, large technology companies like Apple and Microsoft. People store vast amounts of information, use phones more than ever and have access to hundreds of ways to communicate with one another. But, the police continue to use the oldest method in the book, wiretaps.
The use of wiretapping has been around since there were telephones. But, in the criminal context, federal and state authorities are requesting permission to intercept telephone and text messages at a more frequent rate every year. Because of the ongoing and more prevalent use of wiretaps, the United States Courts have been keeping track of wiretap application since at least 2005. They recently published their 2015 Wiretap Report, which contains some interesting, and potentially alarming information.
In 2015 the number of federal and state wiretaps reported increased 17% from 2014. In all, 4,148 wiretaps were reported in 2015, and the majority of those (2,745) were authorized by state court judges. The remainder were authorized by federal judges. The most interesting fact is that out of the 4,148 wiretap requests submitted to either a state or federal judge not a single application was denied. The government was granted permission to listen into live telephone calls and read realtime text messages every time they asked.
The fact that the government is granted such wide latitude is interesting. Perhaps, wiretap requests are only made when sufficient evidence is available to reach probable cause. However, it seems implausible that none of the applications had a flaw. But, because it appears that the wiretap reporting is done independently by each agency, the information may be less than 100% inaccurate.
Also of note is that encryption played a part in a small number of intercepts. The Report says:
The number of state wiretaps in which encryption was encountered decreased from 22 in 2014 to 7 in 2015. In all of these wiretaps, officials were unable to decipher the plain text of the messages. Six federal wiretaps were reported as being encrypted in 2015, of which four could not be decrypted. Encryption was also reported for one federal wiretap that was conducted during a previous year, but reported to the AO for the first time in 2015. Officials were not able to decipher the plain text of the communications in that intercept.
The report notes that drug investigations are the single largest category of investigation where a wiretap is requested at 79%. That is followed by homicide and conspiracy at approximately 5% each.
On average an intercept last 30 days, however a number of intercepts have lasted for many months. The Report notes:
In 2015, for reported intercepts, installed wiretaps were in operation for an average of 43 days, 9 days above the average in 2014. The federal wiretap with the most intercepts occurred during a narcotics investigation in the District of South Carolina and resulted in the interception of 81,122 messages over 300 days, including 35,402 incriminating interceptions. The state wiretap with the most intercepts was a 120-day wiretap for a narcotics investigation in Maricopa County, Arizona, which resulted in the interception of 412,298 cell phone conversations, of which 15,566 were incriminating.
Data on individuals arrested and convicted as a result of interceptions reported as terminated are presented in Table 6. As of December 31, 2015, a total of 4,448 persons had been arrested (up 26 percent from 2014), and 590 persons had been convicted (up 7 percent from 2014). Importantly, New York, New York, had the highest number of total convictions (85) for any state jurisdiction in 2015.
Clearly, the impact of wiretaps on criminal investigations is significant. It is also a extremely expensive to do. The Report reflects:
The average cost of an intercept in 2015 was $42,216, up 7 percent from the average cost in 2014. The most expensive state wiretap was in Rockland County, New York, where costs for a 390-day narcotics wiretap resulting in 36 arrests and 18 convictions totaled $1,363,192. For federal wiretaps for which expenses were reported in 2015, the average cost was $48,892, a 9 percent increase from 2014. The most expensive federal wiretap completed during 2015 occurred in the District of Connecticut, where costs for a conspiracy investigation that included five other wiretaps totaled $884,769.
Ultimately, the Report confirms the use of wiretaps too investigate crimes from drug conspiracy to insider trading is on the rise. As law federal law enforcement increases their reliance on wiretap technology, the state courts are increasingly relying on this capability to make cases. If you are charged with or being investigated for a crime, there is a better than good chance that you may be wiretapped. As a result, you should contact an attorney to discuss the implications of a wiretap and how you can defend yourself.