ELECTRONIC SURVEILLANCE MANUAL PROCEDURES and …

ELECTRONIC SURVEILLANCE MANUAL PROCEDURES and CASE LAW FORMS

Revised June 2005 (complete in one voliime)

FOREWORD

This manual was prepared by the Electronic Surveillance Unit, Office of Enforcement Operations, Criminal Division, and is designed primarily to assist federal prosecutors and investigative agents in the preparation of electronic surveillance applications made pursuant to Title 18, United States Code, Sections 2510-2522 (2001) ("Title III") and associated statutes. It is not intended to confer any rights, privileges, or benefits upon defendants, nor does it have the force of a United States Department of Justice directive. See United States v. Caceres, 440 U.S. 741 (1979). In addition to outlining and discussing the statutory requirements of Title III applications, this manual also sets forth the Department's authorization process, provides guidance in filing Title III pleadings before the court, and discusses the applicable case law as well as both novel, and frequently arising, legal issues involved in Title III litigation. Samples of the most commonly filed pleadings follow the text.

INTRODUCTION

This manual sets forth the procedures established by the Criminal Division of the Department of Justice to obtain authorization to conduct electronic surveillance pursuant to Title 18, United States Code, Sections 2510-2522 (2001) (Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 198 6 (ECPA), the Communications Assistance for Law Enforcement Act of 1994 (CALEA), the Antiterrorism and Effective Death Penalty Act of 1996 (Antiterrorism Act)), the USA-Patriot Act of 2001, and the Homeland Security Act of 2002 and discusses the statutory requirements of each of the pleadings. Throughout this manual, the above federal wiretap statutes will occasionally be referred to collectively as "Title III."

This manual is divided into two sections. The first section provides an overview of the procedures to follow when applying for authorization to conduct electronic surveillance, and discusses format, statutory and policy requirements, and pertinent case law concerning specific electronic surveillance issues. The second section provides sample forms pertaining to electronic surveillance involving wire, oral and electronic communication interceptions, pen register/trap and trace procedures, access to transactional data and stored wire and electronic communications, and the use of tracking devices. These forms are intended only to provide general guidance in drafting the most frequently used pleadings and do not prohibit alternative approaches.

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TABLE OF CONTENTS

I. THE ELECTRONIC SURVEILLANCE UNIT

1

II. TITLE III AUTHORIZATION PROCESS

1

III. THE ELECTRONIC SURVEILLANCE PLEADINGS

3

1. The Application

3

2. The Affidavit

7

3. The Order

15

IV. ELECTRONIC COMMUNICATIONS

16

1. Coverage under Title III

16

2. Stored Electronic Communications - 18 U.S.C. ? 2703

16

V. EXTENSION AND SPINOFF APPLICATIONS

19

1. Extension Applications

19

2. Spinoff Applications

21

VI. ROVING INTERCEPTIONS

22

1. Roving Oral Interception

23

2. Roving Wire or Electronic Interception

24

VII. EMERGENCY PROCEDURES

2 4

1. Title III Interceptions

24

2. Pen Register/Trap and Trace Devices

26

3. How to Contact the ESU

27

VIII. PROGRESS REPORTS

27

IX. SEALING

27

1. Overview

27

2. When to Seal

28

3. Sealing Delays

29

4. How to Seal/Custody of the Tapes

30

5. Suppression for Failure to Seal Properly

30

6. Resealing

31

X. INVENTORY NOTICE

31

XI. DISCLOSURE OF TITLE III EVIDENCE

32

1. 18 U.S.C. ? 2517(1), (2), (6), (7), (8) - Use and

Disclosure of Interception Information

32

iii

2. 18 U.S.C. ? 2517(3) - Testimonial Use 34

3. 18 U.S.C. ? 2517(4) - Privileged Communications . . 35 4. 18 U.S.C. ? 2517(5) - Use of "Other Crimes" Evidence

35

XII. DISCOVERY

36

1. 18 U.S.C. ? 2518(9), 2518(10) (a)

36

2. The Federal Rules

37

XIII. PEN REGISTERS/TRAPS AND TRACES

38

XIV. CELL SITE SIMULATORS/DIGITAL ANALYZERS/TRIGGERFISH . . 40

XV. THE LEGAL AUTHORITIES REQUIRED TO LOCATE CELLULAR TELEPHONES

41

XVI. MOBILE TRACKING DEVICES

4 8

XVII. VIDEO SURVEILLANCE

4 8

XVIII. CONSENSUAL MONITORING 1. Consensual Monitoring by Law Enforcement 2. Consensual Monitoring by Private Parties

XIX. CUSTODIAL MONITORING 1. Law Enforcement Access to Monitored Prison Calls 2. Case Law on Custodial Monitoring

Samples

50

50 51 52 . 52 54

Application for Wire and/or Oral Interceptions

56

Affidavit for Oral and/or Wire Interception

63

Order for Interception of Wire and/or Oral Communications . . 72

Order to Service Provider

77

Sample Minimization Instructions

for Oral and Wire Communications

7 9

Application for Electronic Communications Interception . . . 85

Affidavit for Electronic Communications Interception . . . . 90

Order for Interception of Electronic Communications

99

IV

Sample Title III Roving Affidavit

103

Application for Approval of Emergency Interception of Wire, Oral or Electronic Communications Under 18 U.S.C. 2518(7) . . 137

Affidavit in Support of Application for Approval of Emergency

Interception of Wire, Oral or Electronic Communications

Under 18 U.S.C. 2518(7)

143

Order Approving Emergency Interception of Wire, Oral or

Electronic Communications Under 18 U.S.C. 2518(7) . . . 153

Application for Sealing

157

Order for Sealing

160

Application for 2703(d) Court Order

162

2703(d) Court Order

164

Application for Trap and Trace/Pen Register

166

Order for Trap and Trace/Pen Register

168

Application for Order Permitting Government To Use Its Own Pen Register/Trap and Trace Equipment (Triggerfish/Digital

Analyzer or Similar Device

171

Order Permitting Government To Use Its Own Pen Register/Trap and

Trace Equipment (Triggerfish/Digital Analyzer or Similar

Device)

173

Combined 3123/2703 Application

175

Combined 3123/2703 Order

189

Application for Video Surveillance

197

Order for Video Surveillance

201

Application for Disclosure

204

Order for Disclosure of Interceptions

207

Section 2517(5) Application for Testimonial Use

of Interceptions Relating to "Other Offenses"

209

V

Section 2517(5) Order Permitting Testimonial Use

of Interceptions Relating to "Other Offenses"

212

Inventory Application

214

Order for Inventory

216

Inventory Notice

218

Application for Destruction of Tapes

219

Order for Destruction of Tapes

222

Affidavit for Mobile Tracking Device

224

Order for Mobile Tracking Device

227

VI

I. THE ELECTRONIC SURVEILLANCE UNIT

The Electronic Surveillance Unit (ESU) operates within the Office of Enforcement Operations (OEO), Criminal Division, and handles all requests made pursuant to Title III to conduct non-consensual, domestic surveillance of wire, oral, and electronic communications for law enforcement purposes. The ESU does not handle state wiretaps or requests to conduct domestic national security electronic surveillance pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. ?? 1801, et seq.)(FISA). Questions concerning FISA taps should be directed to the Office of Intelligence and Policy Review at (202) 514-5600.

Attorneys in the ESU are responsible for reviewing and processing all Title III requests, and are available to assist in the preparation of Title III applications and to answer questions on any Title Ill-related issue. All such inquiries should be directed to (202) 514-6809. ESU attorneys will also provide assistance in responding to suppression motions and preparing briefs on Title III issues. For assistance in this area, contact the Chief or Deputy Chief of the ESU at the above number.

II. TITLE III AUTHORIZATION PROCESS

The following is a brief explanation of the Department of Justice's procedures for reviewing and authorizing Title III applications.

1. A copy of the proposed order, application, and affidavit is submitted to the ESU and to the Washington, D.C., office of the investigative agency handling the case. Those pleadings should be sent to the Office of Enforcement Operations, Electronic Surveillance Unit, 1301 New York Avenue, N.W., 12"^ Floor, Washington, D.C. 20005, and should be sent via overnight mail. If the documents are short enough, they may be faxed directly to the ESU at (202) 616-8256. For security reasons, these pleadings may not be sent via e-mail.

Except in the case of genuine emergencies, discussed below, most original applications require approximately one week to review and process from the time the ESU receives the affidavit. Spinoff requests (i.e., applications to conduct electronic surveillance at a new location or over a new facility that are related to an ongoing or previously conducted interception reviewed by the ESU) are considered original applications and are reviewed and processed in the same manner described below, and require agency approval. Extension requests (i.e., applications

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