Wiretaps are not the legally preferred first tool of federal law enforcement, but federal law does allow applications for wiretapping in cases where it may be warranted.
On the other hand, the Fifth Circuit in U.S. v. North analyzed a situation in which the authorities did not apply for a wiretap in the correct court or use the proper safeguards to ensure protected conversations were not surveilled.
Turns out that little things like jurisdiction really do matter.
Wrong Federal Court, No Jurisdiction
The centerpiece of the North case is a Drug Enforcement Agency (DEA) investigation of the appellant's, North's, involvement in cocaine and marijuana trafficking based out of Jackson, Mississippi where agents applied for and used wiretap evidence to eventually arrest North for possession of cocaine.
North may have had a right to think the investigation was fishy; the facts of the case sound eerily similar to a NSA/DEA cover-up that employed pretextual traffic stops based on illegal wiretap evidence to apprehend drug offenders.
Unlike the NSA program, in this case agents had a legal wiretap application approved by a federal district judge in Mississippi, which unfortunately did not have territorial jurisdiction to grant the application. Under the federal wiretap statutory scheme, a court only has territorial jurisdiction to grant an application if either the listener or the tapped speaker is within the jurisdiction of the granting court.
The North court refused to follow Seventh Circuit precedent suggesting that interception of mobile phones was exempt from this law, citing the law's literal interpretation in concert with Congress' intent to limit wiretaps.
Failing to have jurisdiction in Texas or Louisiana (the locations of North and the listening post, respectively) was more than just a technical defect in the wiretap application, it touched on the core of the law's protections against overreaching wiretaps.
Failure to Minimize
In addition to the wiretap application being fundamentally without jurisdiction, the wiretap itself was performed in such a way that did not minimize the risk of surveilling privileged conversation.
DEA respondents really blew it by not providing any evidence to the contrary that they listened in for almost an hour to a call between North and his girlfriend, surveillance that was not objectively reasonable under the Court's standards.
Between the lack of jurisdiction and the failure to minimize, the wiretap evidence didn't have a prayer. Federal agents should try to go to the correct courts with their wiretap application next time.
- MA Supreme Court: MA Wiretap Statute Covers Cell Phones and Texts (FindLaw's U.S. 1st Circuit Blog)
- Leaks, FISA Curb State Secrets Privilege in EFF Wiretap Lawsuit (FindLaw's Technologist)
- NSA Warrantless Wiretapping Lawsuit's Dismissal Affirmed (FindLaw's Decided)
- 9th Cir: Google's Wifi Sniffing May Have Violated Wiretap Laws (FindLaw's Technologist)