Is the federal government tapping your phone? It depends. There is a legal basis upon which your phone can be tapped by authorities if you are suspected by a crime. This depends on the type of crime, the location and whether the phone tap will assist the government in their investigation.
What is Wire Tapping
Wire tapping is third party access to a communication device, most often a telephone. This means that the government will not only listen to your calls, they will record them as well. These wiretaps are often part of a larger investigation which may include surveillance and speaking with co-operating witnesses. As the investigation evolves, the wiretapping authority (usually the FBI) shall build their theory of the criminal case prefaced upon the information gleaned from that that call. For instance, if someone of interested is mentioned on the wiretapped call, the FBI may then seek to get another wiretap for that person. Ultimately, without any special technology at your disposal, it’s very difficult to know if you are being wiretapped or not. If you suspect you phone has been compromised, simply retain a lawyer immediately to find out what legal options you may have.
How Can They Wiretap
For the government to be able to wiretap you, they must suspect you of a crime. As a threshold matter, there must be suspicion that you are involved in some sort of criminal activity. Usually, this could mean, terrorism, drug dealing, participation in a fraud ring, and the like. The next stage would be for the authorities to seek approval, usually in the form of a warrant. From that point, they can start intercepting calls. It is much harder, however, to access encrypted data, such as a Signal, Telegram and WhatsApp calls and messages. This does not mean it is impossible, however, as law enforcement still has the means to access these.
When Do You Find Out If You’re Wiretapped
Typically, once you are indicted, the government has to provide discovery over to you that could impact your ability to prove your innocence or upon which they rely to prove your guilt. This includes wiretap information, especially if they intend to play it in court. By this point, it may be too late or reduce the impact of wiretaps if you have been unaware of them. Nonetheless, one way to challenge the evidence is by ensuring it was obtained illegally. Proving that it wasn’t enables you to make a motion to the court to suppress those wiretaps, so that a jury cannot hear them. Again, a good criminal defense attorney in New York can advice you on the best way to approach them.
Summary of Federal Wiretapping Statutes
The Wiretap Act (18 U.S.C. §§ 2510-2522)
The wiretap statute details what process the government must follow to get a wiretap.
18 U.S.C. § 2510 – Definitions
This section defines what the applicable terms of the wiretap statutes are, such as wire communication, oral communication and intercepts.
18 U.S.C. § 2511 – Interception and disclosure prohibited
This section makes it a crime to intercept a wire, oral or electronic communications . If you do so, you can be put in prion for up to 5 years.
18 U.S.C. § 2512 – Manufacture, distribution, possession, and advertising of wire, oral, or electronic communication intercepting devices prohibited
This make it illegal to manufacture, sell, or advertise wiretapping devices primarily useful for illegal interception. There is an exception, however, for law enforcement. They, in fact, are allows to purchase devices to intercept calls.
18 U.S.C. § 2513 – Confiscation of wire, oral, or electronic communication intercepting devices
Illegal wiretapping equipment can be confiscated by authorities. Hence, possession of the like is a crime.
18 U.S.C. § 2515 – Prohibition of use as evidence
While wiretapping can be executed legally, it will not be allowed to be admitted in a federal or state case if obtained illegally.
18 U.S.C. § 2516 – Authorization for interception
This statute is critical to act of wiretapping. It lists specific serious crimes (like murder, kidnapping, drug trafficking, terrorism) for which wiretap orders can be sought. There are specific government officials (typically high-ranking DOJ officials) listed here who can authorize wiretap applications. Furthermore, a framework is established for lawful law enforcement wiretapping.
18 U.S.C. § 2517 – Authorization for disclosure and use
Set out in this section are the ways lawfully intercepted communications can be disclosed. Obviously, it is possible to disclose wiretaps to law enforcement, in testimony, or when authorized by a judge. It can also be provided to commission of other crimes
18 U.S.C. § 2518 – Procedure for interception
There are very strict requirements for obtaining a wiretap order from a judge. Specifically, one must show: (1) probable cause a specific crime is being committed, (2) normal investigative procedures have failed or are unlikely to succeed, (3) probable cause the facilities to be tapped are being used in connection with the crime.
A wiretap order must specify the crime suspected, the location or facility to be type and the type of communications sought.
18 U.S.C. § 2519 –
This requires judges and law enforcement to file annual reports on wiretap authorizations and results
18 U.S.C. § 2520 – Recovery of civil damages
It is possible to obtain damages for illegal wiretaps.
FAQS on Wiretaps
What should I do I suspect I am being wiretapped?
Answer: Call a lawyer immediately, so they can advise you of your rights.
How long can I be a subject of a wiretap?
Answer: Typically, a wiretap order must be limited in scope and time. That means you cannot simply be the subject of a wiretap for an interminable period. A financial crime attorney or criminal defense lawyer (New York) can go into further detail.
What type of lawyer advises on wiretaps?
Answer: A criminal lawyer in Manhattan, New York defense lawyer, financial crime lawyer or white collar defense lawyer can advise you.