1040

Introduction to Criminal Sanctions for Illegal Electronic Surveillance

Congress has enacted comprehensive legislation governing electronic surveillance. In 1968, Congress passed Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. In 1978, the Foreign Intelligence Surveillance Act of 1978 ("FISA"), 50 U.S.C. § 1801 et seq., was enacted. In 1986, Congress passed the Electronic Communications Privacy Act of 1986 ("1986 Act"), Public Law No. 99-508, which substantially revised Title III to provide coverage for the technological advances developed in the area of electronic communications since the passage of the original act. And most recently in 1994, Congress enacted the Communications Assistance for Law Enforcement Act ("1994 Act"), Public Law No. 103-414, which extended the protections of the 1986 Act to cordless phones and certain data communications transmitted by radio and also expanded criminal penalties for using certain devices to steal mobile phone service. Relatively minor amendments were also made by the Violent Crime Control and Law Enforcement Act of 1994, Public Law No. 103-322 and the Antiterrorism and Effective Death Penalty Act of 1996, Public Law No. 104-132. These sections explain the criminal provisions contained in Title III, as amended by the 1986 Act and the 1994 Act, other criminal provisions added by the 1986 Act, and the criminal prohibitions in the Federal Communications Act. The criminal sanction in FISA is dealt with in USAM 9-60.400. The statutes prohibiting illegal electronic surveillance discussed in these sections are: 18 U.S.C. § 2510, which defines the terms used throughout Title III; 18 U.S.C. § 2511, which prohibits the interception of wire, oral, and electronic communications and the subsequent disclosure or use of illegally intercepted communications; 18 U.S.C. § 2512, which prohibits the manufacture, possession, advertisement, sale, and transportation in interstate or foreign commerce of devices that are primarily useful for the surreptitious interception of communications; 18 U.S.C. § 2513, which provides for the forfeiture of any device which is used, manufactured, or possessed in violation of sections 2511 or 2512; 18 U.S.C. § 2701, which prohibits unauthorized access to a wire or electronic communication while it is in electronic storage; 18 U.S.C. § 3121, which prohibits the installation of a pen register or trap and trace device without court authorization; 18 U.S.C. § 2232(c), which prohibits giving notice of a court-approved electronic surveillance application in order to obstruct, impede, or prevent the interception; 18 U.S.C. § 2521, which authorizes the Attorney General to initiate civil proceedings to enjoin felony violations of Title III; 18 U.S.C. § 1367, which prohibits interference with the operation of a satellite; 47 U.S.C. § 605, which prohibits interception and divulgence or use of radio communications; 47 U.S.C. § 553, which prohibits receiving cable communications services without permission of the operator; and 47 U.S.C. § 502, which punishes willful and knowing violations of Federal Communication Commission regulations. [cited in USAM 9-60.100; USAM 9-60.200]