Wiretapping Statute | People are often in totally opposite groups as far as their beliefs on whether or not, at any given time, it’s possible that a law enforcement agent could be listening to a phone call or conversation: some, the more paranoid, almost expect such intrusion, while others, the more naive assume this never actually happens in real life. Under what’s known as the federal wiretapping statute, along with Minnesota’s own state wiretapping statute, the reality is somewhere in the middle. Police and other law enforcement officers do use these statutes as part of investigations in some circumstances. And while The Wire may have provided a good introduction to wiretapping law, there’s a lot more to know about it.
The Federal Wiretapping Statute
The first thing to understand is that the statute is not simply about allowing police to listen in on suspects’ conversations. The statute has two equally important purposes: to protect the privacy of communications, and to set out circumstances in which interception of those communications is permissible. The privacy aspect is not just rhetoric—the law actually allows a person whose communications are unlawfully intercepted by a third party (which generally does not include a law enforcement agent) to sue over the illegal interception.
What the law does allow is the interception of wire, oral, or electronic communications by law enforcement officers if specific, detailed procedures are followed.
Procedure
Here’s where having watched The Wire comes in handy. In order to lawfully intercept wire, oral, or electronic communications, police officers must first submit an application to a judge. The judge can only grant the application if he or she finds probable cause, similar to that required for any other search. The judge must also find that normal investigative procedures have been tried and failed, or appear unlikely to succeed or to be too dangerous. In other words, a wiretap is intended to be an avenue of last resort, not a way for the police to begin an investigation.
Challenging Evidence Obtained From a Wiretap
If you are charged with a crime and the government intends to use wiretap evidence in its prosecution of you, you can challenge that evidence on several grounds. First, you can argue that the law enforcement agents who intercepted the communication did not in fact have an order allowing the interception. Second, if there was such an order, you can argue that the order was defective or that there was a failure to follow the law in obtaining the order. Additionally, you could argue that the way in which the communication was intercepted was not the same as that allowed by the order.
Minnesota’s Wiretapping Laws
Because one purpose of the federal wiretapping statute is to protect the privacy of communications, a state law that is more liberal in allowing interception of communications will be considered to be preempted by the federal law and thus invalid. States are therefore free to enact their own wiretapping statutes, but these must be equally or more restrictive as the federal law. In the case of Minnesota, the wording of the state law is nearly identical to the federal law. However, any future changes in the federal law can leave the corresponding portions of the Minnesota law open to challenge if, due to the federal change, the state law provision becomes less restrictive than its federal counterpart.
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