How Does Electronic Surveillance Work Legally? Title III warrant (content) Remember Katz case FISA order (content) Remember Truong case Transactional info order Remember Third-Party Doctrine

Title III Warrant (Content) Requirements Only certain high-level officials can approve application Warrant application goes to a court (magistrate) Establish facts giving rise to probable cause to believe that certain crime has occurred or will occur and that particular communications concerning the crime will be obtained through intercept Details must include particular description of facilities to be wiretapped, among other requirements Alternative techniques likely to be unsuccessful Minimize interception of irrelevant communications Problem of over-collection Need to sort and delete Materials turned over to the defendant

FISA Order (Content) For standard FISA wiretapping order, application goes to FISC FISC must find probable cause to believe target is foreign power or agent of a foreign power Application must be approved by senior DoJ officials and include detailed facts, including including nature of info sought, and certifcation of foreign intel purpose Procedures to minimize the acquisition, use, and retention of info concerning U.S. persons

Criminal Transactional Info Order (Metadata) Requirements “Pen register” = device which records or decodes dialing, routing, addressing, signaling info “Trap & trace device” = device which captures incoming numbers or other dialing, routing, addressing, signaling info Requires court order (not a warrant) Law enforcement official must represent to court that info likely to be obtained is relevant to ongoing criminal investigation For foreign intelligence, even easier