Peter A. Crusco
Peter A. Crusco (NYLJ/Rick Kopstein)

The ping pong drama being played out on the national media stage, and before Congress, concerning charges and counter charges of alleged Russian election hacking, complicity by the Republican administration, and domestic surveillance abuse of the intelligence apparatus by the former Democrat administration raises a cornucopia of legal issues.1 One interesting yet rarely litigated legal issue is whether individuals whose communications are intercepted, but are non-targets and never prosecuted, are entitled to notification and copies of the documents upon which the order for electronic surveillance was based. This article will address this issue.

Title III

Title III of the Omnibus Crime Control and Safe Streets Act of 1968,2 18 U.S.C. 2510, et seq., sets the federal standard and imposes on the states the minimum constitutional standards for electronic surveillance. On the other hand, the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§1861 et seq., governs electronic surveillance to collect foreign intelligence, that is, information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, or foreign persons or international terrorist activities.3

Title III deals with one of the most difficult areas confronting a technologically advanced society, that is, providing law enforcement officials with the tools for electronic surveillance while at the same time protecting its citizens’ privacy rights in their wire and oral communications. With respect to a criminal prosecution, 18 U.S.C. §2518(9) requires specific disclosure to the defense before the government may introduce evidence derived from intercepted communications at a trial.

Secrecy is absolutely essential for success when electronic surveillance is employed, so disclosure of such surveillance before the objectives of it are secured would be counter-productive as well as being unlawful.4 Under federal law, 18 U.S.C. §2518(9) the disclosure required after the commencement of criminal proceedings includes a copy of the warrant and application at least 10 days before the commencement of the hearing or trial, unless excused or extended by the court. The question then arises as to what disclosure applies when a prosecution is not commenced and §2518(9) is inapplicable.

Subdivision 8(d) of §2518 provides that the government, “[w]ithin a reasonable time but not later than ninety days after the filing of an application for an order of approval under section 2518(7)(b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interests of justice,(emphasis supplied) an inventory which shall include notice of (1) the fact of the entry of the order or the application; (2) the date of the entry and the period authorized, approved or disapproved interception, or the denial of the application; and (3) the fact that during the period wire, oral, or electronic communications were or were not intercepted.” The judge, upon the filing of a motion, may in his discretion, make available to such persons or his counsel for inspection such portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge the serving of the inventory required by this subsection may be postponed.

The parameters of this discretionary disclosure for non-target (non-defendant) interceptees has been discussed in few published decisions. For instance, In re Application for Order Authorizing Interception of Oral Communications, etc.,5 was a case before the U.S. District Court for the District of Puerto Rico, in which the movants, who had not been charged with a crime, received the statutory notification that their communications had been intercepted. The notices indicated that communications with their attorneys had been intercepted in the course of the execution of an electronic eavesdropping “bug” authorized in the premises of a law office. The movants petitioned the issuing court for disclosure contending that the disclosure was absolutely indispensable in order to ascertain the nature and extent of “any violation of their federal constitutional and/or statutory rights, privileges and immunities,” and in order to pursue civil remedies under 18 U.S.C. §2520.

The District Court reviewed the government’s responsive papers in camera finding that the importance in assuring that grand jury proceedings remain secret and free from prejudice outweighed the movant’s interest in discovering the degree to which the government intruded into their private affairs. Moreover, the court found that the material it reviewed was so sensitive that revelation of any of it would prejudice the government in the ongoing investigation. The court also opined that the prior determination of probable cause for the issuance of the order approving electronic surveillance which resulted in the interception of the movant’s communications was lawful, and the minimization of non-pertinent matters were properly conducted pursuant to the surveillance order. The U.S. Court of Appeals for the First Circuit affirmed the decision of the District Court.

Last month, the U.S. District Court for the District of Kansas faced a similar issue In re Interception of Oral Communs. of Steven.6 There the movants, employees of a newspaper, received letters of notice of interceptions as per §2518(8)(d) from the U.S. Department of Justice informing them that their phone calls had been intercepted pursuant to wiretaps on a prominent Wichita businessman and politician. Noone had been charged with a crime. The movants contended that their conversations must have been significant because a judge determined that it was in the interest of justice that they be served with notice (an inventory letter). The government, though, responded that their practice was to send notice to every single individual whose calls were intercepted, and accordingly there could be no inference that the movants were more than inconsequential interceptees.

The District Court found that neither the movant’s public or private interests compelled disclosure nor was disclosure in the interest of justice “at this time.” First, the court restated that Title III carries a statutory presumption against disclosure that outweighs any asserted right to judicial documents either under the common law or the First Amendment. Further, the integrity of the government’s investigation outweighed the movant’s desire to inform the public about the specifics of the electronic surveillance. The court also rejected the movant’s argument based upon their private right to know—that is, knowing which of their conversations the government intercepted and why it did so. Although the court opined that “in most circumstances the disclosure of information further the interest of justice more than its concealment … the presence of an ongoing investigation lead the Court to the result that the interest of justice is best served by allowing the Government to investigate and enforce the federal law.” The court found troubling that should no criminal prosecution ever be commenced, the movants may never be able to proceed on their claims. “In such a case, one could hardly expect the Government to simply announce that it was no longer conducting an investigation. And even if it wanted to, the Government is statutorily prohibited from disclosing wiretap information without a court order.” The court concluded that Title III might not provide an adequate recourse for people in the movant’s position.

New York CPL §700.50(3)

Under Title III, the states, are free to impose more restrictive procedures than those imposed by federal law.7 The comparable statute in New York is Criminal Procedure Law §700.50(3), which provides that the person named in an eavesdropping warrant and other parties to a intercepted communication as the issuing court determines, must be served with written notice of the fact and date of issuance of the eavesdropping warrant, and of the period of authorized eavesdropping. The notice must be served within 90 days after expiration of the warrant except that this requirement need not be satisfied if the provisions of C.P.L. §700.70 are satisfied within 90 days of the termination of the warrant, and if the defendant will not be prejudiced. Furthermore, the notice may be postponed for a reasonable time by order of the justice upon a showing of exigent circumstances.8 In a rare published decision concerning a disclosure motion pursuant to C.P.L. §700.50(3) by a non-target interceptee (non-defendant), the motion was denied and the decision affirmed by the Appellate Division for the Second Department in In re Placement and Secretion of Eavesdropping Devices.9

FISA

Applications pursuant to the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§1861 et seq., are reviewed by one of a select federal judges on the FISA court, a special court that reviews all such applications. Under the act, the warrants may only issue based upon a finding of probable cause to believe that the interceptions will result in foreign intelligence. Like the conventional wiretaps under Title III, the FISA court orders require the minimization of conversations not related to foreign intelligence. And like the conventional wiretaps under Title III, information obtained by the execution of these warrants may be shared with law enforcement officials in the proper performance of their duties.10 Moreover, given the national security implications involved disclosure of the contents of the applications are rare indeed, and it would be quite unusual that a non-target interceptee would obtain information about the interception of his or her communications unless a criminal prosecution would result therefrom.11

Conclusion

Recent events have illuminated the issue of the legal requirements of notice and remedies available to a person who is intercepted during the course of court-authorized electronic surveillance though not a target and not the subject of criminal prosecution. Courts have held in such cases that Title III carries a statutory presumption against disclosure that outweighs any asserted right to judicial documents either under the common law or the First Amendment. Such persons who move for disclosure of the application and related documents under which the electronic surveillance was based rarely succeed in their attempts to gain full disclosure either because of concerns by the court with the integrity of ongoing investigations in Title III scenarios or national security implications in FISA scenarios. Accordingly, it is clear that in this area of the law, the balancing of interests by the courts do not generally provide a solution that most movants for disclosure would find adequate.

1. See, e.g., Jamie Schram, Mark Moore, Bruce Golding, “Spyphone Cover Blown,” New York Post, March 8, 2017, p. 4; Mathew Rosenberg, Matt Apuzzo, “Court Approved Wiretap on Trump Aide Over Russia Ties,” N.Y. Times, April 12, 2017.

2. 18 U.S.C. §2510, et. seq.

3. 50 U.S.C. §1801 (e).

4. See, e.g., United States v. Forlano, 358 F. Supp. 56 (S.D.N.Y. 1973).

5. In re Application for Order Authorizing Interception of Oral Communications, etc., 545 F. Supp. 1271 (D.C. P.R. 1982) aff’d 723 F.2d 1022, 1025 (1st Cir. P.R. 1983).

6. In re Interception of Oral Communs. of Steven, 2017 U.S. Dist. LEXIS 39027 (D.C. Ka, March 17, 2017).

7. See Berger v. New York, 388 U.S. 41 (1967); People v. Shapiro, 50 N.Y. 2d 747 (1980).

8. See People v. Rodriguez, 19 N.Y.3d 166 (2012); People v. Bialostok, 80 N.Y.2d 738 (1993); People v. Hueston, 34 N.Y.2d 116 (1974).

9. In Re Placement and Secretion of Eavesdropping Devices, 205 A.D.2d 785 (2d Dep’t 1994).

10. See 50 U.S.C. §1806(k).

11. See 50 U.S.C. §1806.

The ping pong drama being played out on the national media stage, and before Congress, concerning charges and counter charges of alleged Russian election hacking, complicity by the Republican administration, and domestic surveillance abuse of the intelligence apparatus by the former Democrat administration raises a cornucopia of legal issues.1 One interesting yet rarely litigated legal issue is whether individuals whose communications are intercepted, but are non-targets and never prosecuted, are entitled to notification and copies of the documents upon which the order for electronic surveillance was based. This article will address this issue.

Title III

Title III of the Omnibus Crime Control and Safe Streets Act of 1968,2 18 U.S.C. 2510 , et seq., sets the federal standard and imposes on the states the minimum constitutional standards for electronic surveillance. On the other hand, the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§1861 et seq. , governs electronic surveillance to collect foreign intelligence, that is, information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, or foreign persons or international terrorist activities.3

Title III deals with one of the most difficult areas confronting a technologically advanced society, that is, providing law enforcement officials with the tools for electronic surveillance while at the same time protecting its citizens’ privacy rights in their wire and oral communications. With respect to a criminal prosecution, 18 U.S.C. §2518(9) requires specific disclosure to the defense before the government may introduce evidence derived from intercepted communications at a trial.

Secrecy is absolutely essential for success when electronic surveillance is employed, so disclosure of such surveillance before the objectives of it are secured would be counter-productive as well as being unlawful.4 Under federal law, 18 U.S.C. §2518(9) the disclosure required after the commencement of criminal proceedings includes a copy of the warrant and application at least 10 days before the commencement of the hearing or trial, unless excused or extended by the court. The question then arises as to what disclosure applies when a prosecution is not commenced and §2518(9) is inapplicable.

Subdivision 8(d) of §2518 provides that the government, “[w]ithin a reasonable time but not later than ninety days after the filing of an application for an order of approval under section 2518(7)(b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interests of justice,(emphasis supplied) an inventory which shall include notice of (1) the fact of the entry of the order or the application; (2) the date of the entry and the period authorized, approved or disapproved interception, or the denial of the application; and (3) the fact that during the period wire, oral, or electronic communications were or were not intercepted.” The judge, upon the filing of a motion, may in his discretion, make available to such persons or his counsel for inspection such portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge the serving of the inventory required by this subsection may be postponed.

The parameters of this discretionary disclosure for non-target (non-defendant) interceptees has been discussed in few published decisions. For instance, In re Application for Order Authorizing Interception of Oral Communications, etc.,5 was a case before the U.S. District Court for the District of Puerto Rico, in which the movants, who had not been charged with a crime, received the statutory notification that their communications had been intercepted. The notices indicated that communications with their attorneys had been intercepted in the course of the execution of an electronic eavesdropping “bug” authorized in the premises of a law office. The movants petitioned the issuing court for disclosure contending that the disclosure was absolutely indispensable in order to ascertain the nature and extent of “any violation of their federal constitutional and/or statutory rights, privileges and immunities,” and in order to pursue civil remedies under 18 U.S.C. §2520 .

The District Court reviewed the government’s responsive papers in camera finding that the importance in assuring that grand jury proceedings remain secret and free from prejudice outweighed the movant’s interest in discovering the degree to which the government intruded into their private affairs. Moreover, the court found that the material it reviewed was so sensitive that revelation of any of it would prejudice the government in the ongoing investigation. The court also opined that the prior determination of probable cause for the issuance of the order approving electronic surveillance which resulted in the interception of the movant’s communications was lawful, and the minimization of non-pertinent matters were properly conducted pursuant to the surveillance order. The U.S. Court of Appeals for the First Circuit affirmed the decision of the District Court.

Last month, the U.S. District Court for the District of Kansas faced a similar issue In re Interception of Oral Communs. of Steven.6 There the movants, employees of a newspaper, received letters of notice of interceptions as per §2518(8)(d) from the U.S. Department of Justice informing them that their phone calls had been intercepted pursuant to wiretaps on a prominent Wichita businessman and politician. Noone had been charged with a crime. The movants contended that their conversations must have been significant because a judge determined that it was in the interest of justice that they be served with notice (an inventory letter). The government, though, responded that their practice was to send notice to every single individual whose calls were intercepted, and accordingly there could be no inference that the movants were more than inconsequential interceptees.

The District Court found that neither the movant’s public or private interests compelled disclosure nor was disclosure in the interest of justice “at this time.” First, the court restated that Title III carries a statutory presumption against disclosure that outweighs any asserted right to judicial documents either under the common law or the First Amendment. Further, the integrity of the government’s investigation outweighed the movant’s desire to inform the public about the specifics of the electronic surveillance. The court also rejected the movant’s argument based upon their private right to know—that is, knowing which of their conversations the government intercepted and why it did so. Although the court opined that “in most circumstances the disclosure of information further the interest of justice more than its concealment … the presence of an ongoing investigation lead the Court to the result that the interest of justice is best served by allowing the Government to investigate and enforce the federal law.” The court found troubling that should no criminal prosecution ever be commenced, the movants may never be able to proceed on their claims. “In such a case, one could hardly expect the Government to simply announce that it was no longer conducting an investigation. And even if it wanted to, the Government is statutorily prohibited from disclosing wiretap information without a court order.” The court concluded that Title III might not provide an adequate recourse for people in the movant’s position.

New York CPL §700.50(3)

Under Title III, the states, are free to impose more restrictive procedures than those imposed by federal law.7 The comparable statute in New York is Criminal Procedure Law §700.50(3), which provides that the person named in an eavesdropping warrant and other parties to a intercepted communication as the issuing court determines, must be served with written notice of the fact and date of issuance of the eavesdropping warrant, and of the period of authorized eavesdropping. The notice must be served within 90 days after expiration of the warrant except that this requirement need not be satisfied if the provisions of C.P.L. §700.70 are satisfied within 90 days of the termination of the warrant, and if the defendant will not be prejudiced. Furthermore, the notice may be postponed for a reasonable time by order of the justice upon a showing of exigent circumstances.8 In a rare published decision concerning a disclosure motion pursuant to C.P.L. §700.50(3) by a non-target interceptee (non-defendant), the motion was denied and the decision affirmed by the Appellate Division for the Second Department in In re Placement and Secretion of Eavesdropping Devices.9

FISA

Applications pursuant to the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§1861 et seq. , are reviewed by one of a select federal judges on the FISA court, a special court that reviews all such applications. Under the act, the warrants may only issue based upon a finding of probable cause to believe that the interceptions will result in foreign intelligence. Like the conventional wiretaps under Title III, the FISA court orders require the minimization of conversations not related to foreign intelligence. And like the conventional wiretaps under Title III, information obtained by the execution of these warrants may be shared with law enforcement officials in the proper performance of their duties.10 Moreover, given the national security implications involved disclosure of the contents of the applications are rare indeed, and it would be quite unusual that a non-target interceptee would obtain information about the interception of his or her communications unless a criminal prosecution would result therefrom.11

Conclusion

Recent events have illuminated the issue of the legal requirements of notice and remedies available to a person who is intercepted during the course of court-authorized electronic surveillance though not a target and not the subject of criminal prosecution. Courts have held in such cases that Title III carries a statutory presumption against disclosure that outweighs any asserted right to judicial documents either under the common law or the First Amendment. Such persons who move for disclosure of the application and related documents under which the electronic surveillance was based rarely succeed in their attempts to gain full disclosure either because of concerns by the court with the integrity of ongoing investigations in Title III scenarios or national security implications in FISA scenarios. Accordingly, it is clear that in this area of the law, the balancing of interests by the courts do not generally provide a solution that most movants for disclosure would find adequate.

1. See, e.g., Jamie Schram, Mark Moore, Bruce Golding, “Spyphone Cover Blown,” New York Post, March 8, 2017, p. 4; Mathew Rosenberg, Matt Apuzzo, “Court Approved Wiretap on Trump Aide Over Russia Ties,” N.Y. Times, April 12, 2017.

2. 18 U.S.C. §2510 , et. seq.

3. 50 U.S.C. §1801 (e) .

4. See, e.g., United States v. Forlano , 358 F. Supp. 56 ( S.D.N.Y. 1973 ) .

5. In re Application for Order Authorizing Interception of Oral Communications, etc., 545 F. Supp. 1271 (D.C. P.R. 1982) aff’d 723 F.2d 1022, 1025 ( 1st Cir. P.R. 1983 ) .

6. In re Interception of Oral Communs. of Steven, 2017 U.S. Dist. LEXIS 39027 (D.C. Ka, March 17, 2017).

7. See Berger v. New York , 388 U.S. 41 ( 1967 ) ; People v. Shapiro , 50 N.Y. 2d 747 ( 1980 ) .

8. See People v. Rodriguez , 19 N.Y.3d 166 ( 2012 ) ; People v. Bialostok , 80 N.Y.2d 738 ( 1993 ) ; People v. Hueston , 34 N.Y.2d 116 ( 1974 ) .

9. In Re Placement and Secretion of Eavesdropping Devices, 205 A.D.2d 785 (2d Dep’t 1994).

10. See 50 U.S.C. §1806(k) .

11. See 50 U.S.C. §1806 .