History of Police Wiretaps
Wiretapping refers to the process of listening in (secretly) on the conversation of another party, via a telephone line, a computer, or any other type of communication device. Prior to the 1960s, there was no burden on law enforcement to obtain a warrant before engaging in eavesdropping. Telephone wiretapping began in the 1890s following the invention of the telephone recorder, used in the Prohibition-Era to convict bootlegger Roy Olmstead. Many U.S. Presidents have used wiretapping—sometimes with a lawful warrant, and sometimes without.
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In fact, Attorney General Robert F. Kennedy authorized the FBI to wiretap the communications of Rev. Martin Luther King Jr.—wiretaps that remained in place at his home and office until 1965 and 1966 respectively. In 1967 the U.S. Supreme Court ruled that wiretapping or intercepting communications required a warrant (Katz v. the United States). According to a New Yorker article, Dutch Schultz, an American mobster, loathed wire-tappers, often ending his telephone conversations with “I hope your ears drop off.” By 1978, in response to findings from Watergate, the Foreign Intelligence Surveillance Act created a “secret federal court,” for issuing wiretap warrants in national security cases.
While today there are specific laws regarding wiretaps, law enforcement has been known to amuse themselves while on the job by tapping nearby wires at random, defending the practice on the grounds that you “never can tell” when something criminal is going on. The Supreme Court dictates that we have an expectation of privacy in our phone conversations and that a warrant must be obtained before an individual’s phone is wiretapped.
What About Wiretapping in the State of Pennsylvania?
In the state of Pennsylvania, it is a crime to record a telephone conversation or any two-way oral communication without both party’s consent. The Pennsylvania Wiretapping and Electronic Surveillance Control Act does not apply to text messages and emails which are equated to leaving a voicemail message. Pennsylvania is one of only eleven states with such a two-party consent law, with most states having a one-party consent law.
Of course, there are exceptions to these wiretapping laws for investigative or law enforcement entities, as well as for some other reasons as well, such as:
- Prison phone systems
- Police and Emergency communication systems
- In situations where all parties have consented to the recording
- On school buses, for disciplinary or security reasons
- Public utilities that are providing electronic communication services
- A private investigator, witness, or victim may record an oral conversation if there is a reasonable suspicion that the party being recorded is either currently committing, or is about to commit a violent crime.
If the police want to wiretap your phone or other oral conversations, the Attorney General or District Attorney for your county must make a written application to a Superior Court Judge, asking for an order to authorize the wiretap.
In other words, the police can use a wiretap to secretly record you so long as they have a valid search warrant. To obtain such a warrant, the police officer must clearly articulate the facts and circumstances leading to a probable cause of suspected criminal activity. The warrant requirement is fairly steep for a wiretap—more so than a warrant to search an area. Law enforcement must identify the individuals whose communications will be wiretapped—including any third party—and divulge whether there has been a prior application for a wiretap.
Law enforcement must also include a statement that explains that every other less intrusive investigative tool has been used to no avail. The state of Pennsylvania considers a wiretap more invasive than most other types of investigative tactics and is also concerned about the privacy of a potentially innocent third-party. If you have been charged with a crime due to a wiretap, your First Amendment rights may have been violated and you could greatly benefit from speaking to an experienced Pennsylvania criminal attorney.
Federal Laws Regarding Wiretaps
Many believe there is a legal “cloud” hanging over police wiretaps, due to ambiguous interpretations of federal law regarding wiretapping. The theory is that giving law enforcement this level of authority could potentially deprive American citizens of important privacy protections. Yet wiretapping by the police is so prevalent—despite fairly stringent warrant requirements in some states such as Pennsylvania—that it could be time to either grant law enforcement total wiretap authority, or outlaw the practice altogether.
The Justice Department consistently maintains that the authors of the Communications Act had no intention of preventing wiretapping by law enforcement, although diverse state laws and many court opinions on the subject have left us with a hodge-podge of opinions, rules, and laws regarding the legality of police wiretaps. Over the past few years, there have been court decisions regarding police wiretapping practices that have hindered criminal prosecutions in states where police wiretaps were standard operating procedures.
Practically speaking, however, a considerable amount of police wiretapping takes place every single day in the United States—the full extent of which we really have no way of knowing. In fact, while official records of police wiretapping show a relatively small number of authorized taps (with a warrant), according to some, law enforcement has far more unauthorized wiretaps than authorized ones. What we do know is that the practice of police wiretapping is widespread and growing every year. Virtually no individual is safe from having his or her most private telephone conversations listened to and recorded by the police, often with fairly flimsy evidence of a crime.
Many years ago, according to the CQ Researcher, the Pennsylvania Bar Association Endowment sponsored a nationwide study that found members of law enforcement engaged in wiretapping on an extensive scale—even in those states where the practice is forbidden under the law. Among states that grant limited wiretapping privileges to law enforcement, a significant amount of wiretapping beyond the range of police authority was found to be taking place. Since our right to privacy is a cherished one, those who are illegally wiretapped by the police—or anyone else—may have legal recourse.
How Can You Tell if Your Phone Was Wiretapped?
In truth, you might never know if your phone was being wiretapped, however, if you are super-attentive you might be able to detect a wiretap. Keep an ear out for any static or background noises that you do not usually hear, as these could indicate a wiretap. Some—but not all—wiretaps will cause your phone to make a crackling noise when you are close to an FM radio. In some cases, your phone could make odd noises even when you are not currently making or receiving a call. These noises could include clicking noises, beeping noises, or unusual “pulses.”
If your phone typically makes no noise when you aren’t using it (and they rarely do)—then suddenly starts making noise when not in use, it could definitely be wiretapped. Another indication of a wiretap is a phone that suddenly needs almost constant charging or a phone battery that is easily overheated. Occasionally, a phone that is wiretapped will not shut down or start properly, or you may notice certain apps running on your phone that you do not generally see. Finally, if you see any type of strange charge on your phone bill for an SMS or other unauthorized apps, consider it a red flag.
Was Your Pennsylvania Wiretap Legal?
If you were arrested and charged in the state of Pennsylvania based on a police wiretap of your phone, you may well wonder whether the wiretap was entirely legal. Your attorney will require law enforcement to demonstrate whether there was probable cause for a wiretap by asking the following questions:
- Were you committing, had committed, or were about to commit specific offenses at the time the police requested a warrant to wiretap your phone?
- Did the police intercept specific communications related to those offenses?
- Did law enforcement first attempt other normal investigative procedures with respect to the offenses they believe you were committing, had committed, or were about to commit?
- Did those normal investigative procedures fail, or were reasonably unlikely to succeed if they were implemented?
- Were the normal investigative procedures deemed to be too dangerous to employ?
- Is the phone that was wiretapped in your name, or is it commonly used by you?
If it turns out that the law enforcement wiretap on your phone was not “by the book,” then any information garnered through the wiretap could be challenged in court. Perhaps the information submitted to the judge failed to comply with all the requirements under Pennsylvania law. Most particularly, did the government have sufficient probable cause to believe the phone that was tapped belonged to you or was commonly used by you? Your attorney may also ask whether the wiretap was in place for longer than it reasonably needed to be in place. The answers to all of these questions will determine whether the information garnered from your wiretap can be used against you in a court of law. Your attorney will ensure your rights are fully protected regarding a police wiretap.
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