30. Electronic Surveillance—Title III Orders
The Order must meet the following requirements:
The authorizing language of the order should mirror the requesting language of the application and affidavit, stating that there is probable cause to believe that the named subjects are committing particular Title III predicate offenses (or, in the case of electronic communications, any Federal felony), that particular communications concerning those offenses will be obtained through interception, and that normal investigative techniques have been tried and have failed, or are reasonably unlikely to succeed if tried, or are too dangerous to employ. 18 U.S.C. § 2518(3) and (4). The court then orders (again tracking the language of the application and affidavit) that agents of the investigative agency are authorized to intercept wire, oral, or electronic communications over the described facility or at the described premises. Id. The order should also contain language specifying the length of time the interception may be conducted, and, if necessary, authorizing surreptitious and/or forcible entry to effectuate the purpose of the order. Id. The order may also contain language mandating the government to make periodic progress reports (pursuant to 18 U.S.C. § 2518(6)), and ordering the sealing of those as well as the order, application and affidavit. In the case of a roving interception, the court must make a specific finding that the requirements of 18 U.S.C. § 2518(11)(a) and/or (b) have been demonstrated adequately. Any other special requests, such as enforceability of the order as to changed service providers without further order of the court, should also be authorized specifically in the order.
The court should also issue a technical assistance order to the communications service provider. 18 U.S.C. § 2518(4). This is a redacted order that requires the telephone company or other service provider to assist the agents in effecting the electronic surveillance. OEO does not review redacted service provider orders. An order to seal all of the pleadings should also be sought at this time.
The Application, Affidavit, and Order should be sent via email to OEO at ESU.Requests@usdoj.gov. Submissions must include a completed Title III cover sheet that includes the signature of a supervising attorney who reviewed and approved the Title III papers. Criminal Division policy requires that all Title III submissions be approved by a supervising attorney other than the attorney submitting the application. That supervisory attorney must sign the Title III cover sheet, demonstrating that he or she has reviewed the affidavit, application, and draft order included in the submission packet, and that, in light of the overall investigative plan for the matter, and taking into account applicable Department policies and procedures, he or she supports the request and approves of it. The Title III cover sheet, with a space for the supervisor's signature, may be found on ESU's DOJNet site.
Spinoff requests (e.g., additional applications to conduct electronic surveillance over a new facility or at a new location in the same investigation) and extension requests are reviewed in the same manner as described above. While the exigencies of investigative work occasionally make the normally required lead time impossible, the timeliness with which an application is reviewed and authorized is largely under the control of the Assistant United States Attorney handling the case. When coordinating an investigation or planning extension requests, it is important to allow sufficient time for the Title III application to be reviewed by OEO. OEO strongly recommends that extension requests be submitted up to a week in advance of the date on which the interception period expires.
Questions or requests for assistance may be directed to ESU at (202) 514-6809. Sample Title III forms are available by email from ESU or on ESU's DOJNet site.
[updated January 2018]