Government surveillance can take many forms, some of which require a warrant or other court order, and some of which require no authorization whatsoever.1
If you’re in a place open to public view, you can be watched, photographed or videoed without notice or permission. This means that your picture can be taken while you’re walking around town, driving through an intersection or sitting in a stadium. In fact, you don’t necessarily have to be in a public place. If you’re visible through a window, your image can be recorded even though you’re inside your own house.
Law enforcement agents can also fly over your property in a plane or helicopter—even as low as 400 feet—looking for illegal activity such as marijuana cultivation. Naturally, they can take photos while they’re at it.
Conversely, there can be private spots in public places. In a public toilet, you can’t legally be watched or photographed while you’re inside a stall with the door closed, because then you’re not in the public view. Generally, when you’re in a place where passersby can’t see you—where you have a “reasonable expectation of privacy”2—the government is not entitled to observe you covertly.
Remember, though, that if you’re given notice of potential surveillance, you lose your reasonable expectation of privacy. Examples of such notices are: “dressing rooms are monitored to deter shoplifting” or “these premises are protected by a closed circuit security system.”
Video and photograph surveillance is used now to detect and record criminal activity. It will also be used in searching for particular individuals, as facial recognition technology becomes more effective.
1. As with most areas of the law, the rules concerning surveillance vary to some degree from state to state. This section discusses federal law, which in the context of surveillance constitutes the minimum standard of privacy protection (such as it is.) For detailed, up-to-date information on state and federal government surveillance, among other topics, see the Electronic Frontier Foundation's website: http://www.eff.org/.
2. "Reasonable expectation of privacy" is a phrase that comes up a lot in legal arguments involving searches and seizures. It relates to the rights provided by the 4th Amendment to the U.S. Constitution. See Searches Based on Consent.
Surveillance of Telephone Communications
When you’re speaking on the telephone, you have a reasonable expectation of privacy—unless there’s someone standing near enough to overhear. To listen to your phone conversations secretly, law enforcement agents need a wiretap warrant. Wiretap warrants have rather strict requirements. The officers:
1. must show probable cause that a specific crime has been or
is being committed;
2. must list names of specific person(s) to be overheard;
3. must give detailed descriptions of subjects to be overheard;
4. must stop listening within 30 days (or seek a 30-day
5. must include provisions for terminating the wiretap; and
6. must report to the judge concerning intercepted
Wiretap warrants are more trouble for the police to obtain and report on than regular search warrants, so they’re less commonly used. By contrast, law enforcement agents frequently employ a “pen register” and/or “trap and trace device.” A pen register is a list of the telephone numbers of outgoing calls from a particular phone line. A trap and trace device collects the phone numbers of incoming calls to a particular line. Both types of surveillance collect the time and length of the calls, as well. To utilize a pen register or trap and trace device, the police just need a court order, which they get by showing that the information derived would be relevant to an ongoing criminal investigation.
For an important case, the officers will still want a wiretap, since it reveals the actual conversations, while a pen register or trap and trace device just provides a list of phone numbers.
Note that law enforcement agents can obtain voice mail with a regular search warrant—they don’t need a wiretap warrant. Many people prefer to use an answering machine, rather than a voice mail service, because it provides more control over the privacy of stored messages.
There are two situations in which investigating officers can legally listen to and record your phone conversations without getting a wiretap warrant
• calls from a prisoner in a jail, prison or immigration detention
facility (including calls from a prisoner to a lawyer)
• calls to or from an undercover officer or an informant.
Sometimes, while on the phone, people speculate or make jokes about the line being tapped. This is a poor idea, since acknowledging that someone may be listening means that you don’t have a reasonable expectation of privacy. If you’re on the phone and someone does make a stupid comment about the line being tapped, say: “That’s a silly joke. I believe that I have a reasonable expectation of privacy in this phone conversation.”
There are certainly instances in which law enforcement agents listen to phone conversations illegally. Such unlawful activities may not come to light if the officers are clever in laundering the information they’ve obtained, for example, attributing it to a confidential informant. It’s easier for law enforcement to listen illegally to a cordless phone or a cell phone, than to a corded phone (the kind that has a curly cord running from the receiver to the phone itself).1
1. Although many telephones are advertised as being particularly secure against eavesdropping, surveillance technology is improving all the time. The system that ensures privacy today may not do so tomorrow. In the end, the most private conversations are those that are conducted while walking around outdoors – assuming the person you're talking to isn't an undercover officer or an informant.
Surveillance of Mail
Mail cannot be opened without probable cause, but no authorization is needed for mail to be sniffed by law enforcement dogs trained to seek drugs or other contraband.
Mail sent or received across the national border can be opened and searched, if there is “reasonable cause” to suspect that it contains contraband, however, the officers are not supposed to read any accompanying correspondence.
Mail sent to or from a prisoner in a jail, prison or immigration detention center, can be opened and read by the authorities. Letters to or from a prisoner’s lawyer can be opened and shaken out, but not read. However, it’s important to verify with the particular facility exactly how to label the envelope, to make sure it will be treated as confidential legal mail. For example, one institution may want you to write “attorney/client correspondence,” while another may tell you to put “legal mail—privileged and confidential.”
Surveillance of Garbage
Once you put your trash out to be picked up, on the curb or in a dumpster, you’re considered to have abandoned any claim to it. So, since it’s no longer your property, it’s not protected by the Fourth Amendment. You might consider using more thorough methods of disposal, such as incineration, when privacy is particularly important.
Surveillance of Internet Activity
The Internet is an efficient, but not particularly private, method of communication.
To begin with, whatever you say in a chat room or IRC channel is necessarily a public statement—you don’t have a reasonable expectation of privacy in this context. Using a nickname or handle doesn’t guarantee that you’re anonymous—such identifiers can generally be traced to their owners.
In addition, your Internet Service Provider (ISP) may have already put you on notice in their “Terms of Service” that, under certain circumstances, they’ll voluntarily disclose “content”—not just illegal content, but also material that may only be “vulgar” or “otherwise objectionable.” And with a simple subpoena, the government can obtain the content of users’ communications as well as information about users, including addresses and financial data (such as credit card or bank account numbers).
There has been an increasing amount of litigation and legislation concerning Internet privacy. For example, the USA PATRIOT Act1 allows law enforcement agencies to monitor Internet usage and communications to a high degree.
The USA PATRIOT Act extends the idea of pen registers and trap and trace devices to email. With an easily obtained court order, law enforcement can gather the addresses and routing information that are part of every email message. Yet there’s a big difference between phone calls and email. It’s easy to track phone numbers without listening to the content of phone conversations; but it’s hard to separate addresses and routing from the content of the email messages, because the information is packaged and transmitted together.
With somewhat more effort, the government can also get a wire-tap warrant for your email, which lays bare all aspects of your electronic communications.
The USA PATRIOT Act allows law enforcement agents to monitor “non-content” 2 web surfing, as long as they get a court order (for which they only need to state that the information is relevant to an ongoing criminal investigation). And the USA PATRIOT Act permits ISPs to give the government all “non-content” information about your online communications
To keep the content of your electronic communications private, encrypt them with PGP Mail. PGP stands for Pretty Good Privacy, and it’s been proven strong enough to deter government attempts to penetrate your email. To get the latest version of PGP Mail (either the complete version6 or the freeware version), go to http://www.philzimmermann.com/. (Note that Zimmermann ends with two n’s.).
1. The USA PATRIOT Act (Uniting and Strengthening Americans by Providing Tools Required to Intercept and Obstruct Terrorism Act of 2001) was made law on 10/26/01.
2. The USA PATRIOT Act repfers to "non-content" material, but this term has not yet been defined.
3. The complete version comes with PGP Disk, an application that encrypts data on your computer and your storage media – an excellent idea!
©2007 Katya Komisaruk
Republished by permission from the Just Cause Law Collective