Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping
Abstract:
This report provides an overview of federal law governing wiretapping and electronic eavesdropping. It also appends citations to state law in the area and contains a bibliography of legal commentary as well as the text of the Electronic Communications Privacy Act ECPA and the Foreign Intelligence Surveillance Act FISA. It is a federal crime to wiretap or to use a machine to capture the communications of others without court approval, unless one of the parties has given their prior consent. It is likewise a federal crime to use or disclose any information acquired by illegal wiretapping or electronic eavesdropping. Violations can result in imprisonment for not more than five years fines up to 250,000 up to 500,000 for organizations in civil liability for damages, attorneys fees, and possibly punitive damages in disciplinary action against any attorneys involved and in suppression of any derivative evidence. Congress has created separate but comparable protective schemes for electronic communications e.g., e-mail and against the surreptitious use of telephone call monitoring practices such as pen registers and trap and trace devices. Each of these protective schemes comes with a procedural mechanism to afford limited law enforcement access to private communications and communications records under conditions consistent with the dictates of the Fourth Amendment. The government has been given even more narrowly confined authority to engage in electronic surveillance, conduct physical searches, install and use pen registers and trap and trace devices for law enforcement purposes under the ECPA and for purposes of foreign intelligence gathering under FISA. This report includes a brief summary of the recently expired Protect America Act, P.L. 110-55 and of the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, P.L. 110-261 H.R. 6304. It is available in an abridged form without footnotes, quotations, or appendices as CRS Report 98-327.