1. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster Police Technology Police Technology Chapter Fourteen Police Technology Wiretaps

2. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster Learning Objectives Context and value of gathering covert information Context and value of gathering covert information Difference between device-identifying information and call-content information Difference between device-identifying information and call-content information Impact of Communications Assistance for Law Enforcement Agencies (CALEA) Impact of Communications Assistance for Law Enforcement Agencies (CALEA) Legal and practical aspects of wiretaps Legal and practical aspects of wiretaps PEN registries, traps, traces and the Internet PEN registries, traps, traces and the Internet The Patriot Act The Patriot Act

3. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster What is Electronic Surveillance? Intercepting information by electronic means from: Telephone calls. Private conversations Internet communications Photograph provided by Robert Eplett, California Governor’s Office of Emergency Services

4. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster Legal History of Wiretaps 1928 Olmstead v United States – not illegal unless trespass is involved. 1928 Olmstead v United States – not illegal unless trespass is involved. 1934, Congressional Communications Act – although it said that wiretaps were essentially illegal, it was still interpreted – no trespass, not illegal 1934, Congressional Communications Act – although it said that wiretaps were essentially illegal, it was still interpreted – no trespass, not illegal 1967 court decisions provided telephone communications with the full protection of the Fourth Amendment – No warrant no tap. 1967 court decisions provided telephone communications with the full protection of the Fourth Amendment – No warrant no tap.

5. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster Legal History of Wiretaps 1968 Omnibus Crime Control and Safe Streets Act - specified rules state and federal organizations must follow. 1968 Omnibus Crime Control and Safe Streets Act - specified rules state and federal organizations must follow. Required both prosecutorial and judicial review Required both prosecutorial and judicial review 1994 Communications Assistance for Law Enforcement Act (CALEA) - required commercial carriers cooperation. 1994 Communications Assistance for Law Enforcement Act (CALEA) - required commercial carriers cooperation.

6. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster Legal History of Wiretaps 1986 Electronic Communications Privacy Act (ECPA) – Established a lower threshold of judicial review for capturing device identifying information. 1986 Electronic Communications Privacy Act (ECPA) – Established a lower threshold of judicial review for capturing device identifying information. 2001 USA PATRIOT Act – reduced threshold for some federal wiretaps and, in some instances, for “roving” taps. 2001 USA PATRIOT Act – reduced threshold for some federal wiretaps and, in some instances, for “roving” taps.

7. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster Wiretap Definitions Call content is the substance of the call – the conversation. Call content is the substance of the call – the conversation. For internet communications this would be the subject line and body of the message in an email communication. For internet communications this would be the subject line and body of the message in an email communication. Device identifying information is the commonly the telephone number of the callers. Device identifying information is the commonly the telephone number of the callers. For internet communications it would be the to and from lines of an email message. For internet communications it would be the to and from lines of an email message.

8. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster Wiretap Definitions Operational Security refers to the concept that the target, or unauthorized persons, should not have knowledge of the wiretap during the investigation. Both the agency conducting the wiretap and the service provider have responsibilities. Primarily, the service provide must ensure transparency – that is a tapped call sounds no different to the target. Typical wiretap hardware. Photograph provided by ADACS Corp.

9. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster General Wiretap Rules Generally requires both prosecutorial and judicial review. Generally requires both prosecutorial and judicial review. Wiretaps require probable cause like any search warrant. Wiretaps require probable cause like any search warrant. Must focus on gaining specific information about a crime – not just general investigative information Must focus on gaining specific information about a crime – not just general investigative information

10. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster General Wiretap Rules To obtain court order, investigators must show that the information cannot be obtained in another manner. To obtain court order, investigators must show that the information cannot be obtained in another manner. Investigators must provide the court with: Investigators must provide the court with: Articulate specific offense. Articulate specific offense. Specific place to be tapped. Specific place to be tapped. Types of conversations believed to be overheard. Types of conversations believed to be overheard.

11. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster General Wiretap Rules Because wiretaps require judicial and prosecutorial review (and significant technology and personnel resources) it is likely the process will require significant bureaucratic review within their organization. Because wiretaps require judicial and prosecutorial review (and significant technology and personnel resources) it is likely the process will require significant bureaucratic review within their organization. Intercepted conversations must be recorded and protected from editing, alteration or deletion. Intercepted conversations must be recorded and protected from editing, alteration or deletion.

12. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster General Wiretap Rules Investigators must protect the Rights of non-involved persons. Generally, a conversation is monitored for a limited time and if it is not criminal in nature the tap is discontinued – a single call may be checked periodically to determine if a relevant conversation has begun.

13. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster General Wiretap Rules In most states, only investigator’s with specialized training can overhear live conversations. However, once a conversation has been recorded it is considered evidence and anyone with access to the evidence can listen to the conversations. In most states, only investigator’s with specialized training can overhear live conversations. However, once a conversation has been recorded it is considered evidence and anyone with access to the evidence can listen to the conversations.

14. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster General Wiretap Rules Every five days the investigators must provide the judicial authority with a thorough review of the conversations. Every five days the investigators must provide the judicial authority with a thorough review of the conversations. In addition to five day review, at the end of the tap, the investigator’s must provide both the judicial and prosecutorial authority with a complete review. In addition to five day review, at the end of the tap, the investigator’s must provide both the judicial and prosecutorial authority with a complete review. Thirty days after the conclusion of the tap, each person whose conversations were recorded must be notified in writing. Thirty days after the conclusion of the tap, each person whose conversations were recorded must be notified in writing.

15. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster Conducting a Wiretap Generally, wiretaps are expensive and technology intensive operations – the service provider intercepts the call and forwards it to a wire room. Generally, wiretaps are expensive and technology intensive operations – the service provider intercepts the call and forwards it to a wire room. Because of the investment required many jurisdictions use regional wire rooms – locations specifically designed and dedicated to wiretaps. Because of the investment required many jurisdictions use regional wire rooms – locations specifically designed and dedicated to wiretaps.

16. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster Conducting a Wiretap Technology has made compliance much simpler. For instance, software can now be used to record conversations and provide the necessary reporting. Screen Capture provided by Pen-Link™

17. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster Wiretap Software As investigators monitor telephone conversations they have the ability to connect to other databases and begin to integrate the information. Screen Capture provided by Pen-Link™

18. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster Pens, Traps and Traces A Pen register refers to capturing call- identifying information with the content…who is calling who, but not what they are taking about. This is an device connected to a local junction box and retrieved later. Photograph provided by Dianatek Corp.

19. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster Pens, Traps and Traces In compliance with with CALEA, cellular and hard- wired telephone identifying information is now routed to law enforcement via secure TCP/IP connection. With Cellular information, the cell site can be known and the target’s general location determined. Indicates cell reception Screen Capture provided by Pen-Link™

20. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster Pens, Traps and Traces Device identifying information may establish co-conspirators or draw a link between the target and a crime. Device identifying information may establish co-conspirators or draw a link between the target and a crime. TRAPS and TRACES are very much like the caller identification information commercially available to consumers. These devices let investigator’s who is calling – typically used in stalking or annoying telephone call investigations. TRAPS and TRACES are very much like the caller identification information commercially available to consumers. These devices let investigator’s who is calling – typically used in stalking or annoying telephone call investigations.

21. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster Internet Communications Through email, chat and websites, the internet has become a form of criminal communications. Like wire taps, identifying information and content information have different judicial thresholds.

22. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster Internet Communications Network diagnostic tools called packet sniffers are used to inspect data as it flows across the Internet. Network diagnostic tools called packet sniffers are used to inspect data as it flows across the Internet. These software programs can “sniff” for addressees, addressors and content in email communications. These software programs can “sniff” for addressees, addressors and content in email communications. Recently, the Federal Bureau of Investigation has not used its own “sniffer” Carnivore, but another commerical product. Recently, the Federal Bureau of Investigation has not used its own “sniffer” Carnivore, but another commerical product.

23. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster Magic Lantern There are any number of software programs that can be loaded onto a computer to record keystrokes. This is a way to surreptitiously gain passwords. Most recent referred to as Keylogger software, commercially available and used on home as well as commercial PCs.

24. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster Telephone and Investigations More than just receiving and sending information, the telephone is an investigative tool. Miranda requires detention and accusatory questions If the target is free to hang-up they are not detained and therefore no Miranda protection Photograph provided by Robert Eplett, California Governor’s Office of Emergency Services

25. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster USA PATRIOT Act Several sections are expiring and up for renewal in 2005. Several sections are expiring and up for renewal in 2005. Judicial review threshold lowered for “roving” warrants. Judicial review threshold lowered for “roving” warrants. A roving warrant means the target is the subject, not the telephone. If the target changes telephones the investigators can continue to monitor A roving warrant means the target is the subject, not the telephone. If the target changes telephones the investigators can continue to monitor Made telephone and Internet intercepts similar. Made telephone and Internet intercepts similar. Changed threshold on use of FISA courts and domestic surveillance. Changed threshold on use of FISA courts and domestic surveillance.

26. Copyright 2005 - 2009: Hi Tech Criminal Justice, Raymond E. Foster Police Technology Explore leadership at leadership www.pokerleadership.com