Amicus Curiae Brief — Los Rovell Dahda, Petitioner v. United States
Supreme Court briefDec 7, 2017
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No. 17-43
In the
Supreme Court of the United States
LOS ROVELL DAHDA AND
ROOSEVELT RICO DAHDA,
Petitioners,
v.
UNITED STATES OF AMERICA,
Respondent.
On Writ of Certiorari to the United States
Court of A ppeals for the Tenth Circuit
BRIEF OF AMICI CURIAE ELECTRONIC
FRONTIER FOUNDATION AND NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE
LAWYERS IN SUPPORT OF PETITIONERS
Jeffrey T. Green
Co-Chair Amicus Committee
National A ssociation of
Criminal Defense Lawyers
1660 L Street, NW
Washington, DC 20036
(202) 872-8600
Ilana H. Eisenstein
Counsel of Record
Jason D. Gerstein
Marc A. Silverman
DLA Piper LLP (US)
One Liberty Place
Philadelphia, PA 19109
(215) 656-3300
ilana.eisenstein@dlapiper.com
Jennifer Lynch
A ndrew Crocker
Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109
(415) 436-9333
Counsel for Amici Curiae
277252
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii
Interest of Amici Curiae . . . . . . . . . . . . . . . . . . 1
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 1
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I.
T itle III, Includ i ng It s Ter r it or ia l
Limitation, Was Expressly Designed To
Limit Intrusion And Protect Privacy . . . . . . . . . 4
A. Wiretaps Pose A Serious Threat To
Privacy As Congress, States, And
This Court Have Long Recognized . . . . . . . 4
B. With Those Privacy Concerns At
The Forefront, Congress Enacted
Title III To Permit Wiretaps In
Only Limited Circumstances . . . . . . . . . . . . 6
C. The Privacy Concerns Animating
Title III Have Become More Acute
With Advancing Telecommunications
Technology . . . . . . . . . . . . . . . . . . . . . . . . . . 11
D. Since Title III’s Passage, Wiretapping
Has Drastically Expanded . . . . . . . . . . . . . 14
ii
Table of Contents
Page
II. Title III’s Territorial Limitation Is An
Important Component Of The Statute’s
Restrictive Framework . . . . . . . . . . . . . . . . . . . . 17
A. Title III’s Territorial Limits Are
Cr itical To The Function Of Its
Statutory Scheme . . . . . . . . . . . . . . . . . . . . . 17
B. Title III’s Territorial Limitation
Protects Privacy By Limiting Forum
Shopping . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
C. Territorial Limitations Have Long
Been Central To Our Nation’s Laws . . . . . 22
D. The Government Is Incorrect That
Title III Imposes No Territorial Limits
On Cell Phone Wiretaps . . . . . . . . . . . . . . . 25
III. Cong ress Imposed T he “Aut omat ic
Remedy” of Suppression To Enforce the
Statute as a Whole . . . . . . . . . . . . . . . . . . . . . . . . 26
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
iii
TABLE OF CITED AUThORITIES
Page
Cases
Berger v. State of N.Y.,
388 U.S. 41 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6
Katz v. United States,
389 U.S. 347 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Matter of Warrant to Search a Certain
E-Mail Account Controlled &
Maintained by Microsoft Corp.,
829 F.3d 197 (2d Cir. 2016), cert granted sub
nom. United State v. Microsoft Corp., No. 172, 2017 WL 2869958 (U.S. Oct. 16, 2017) . . . . . . . . . 22
Nardone v. United States,
302 U.S. 379 (1937) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8
Olmstead v. United States,
277 U.S. 438 (1928) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6
Riley v. California,
134 S. Ct. 2473 (2014) . . . . . . . . . . . . . . . . . . . . 2, 11, 14
Scott v. United States,
436 U.S. 128 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States v. Amanuel,
615 F.3d 117 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . 27
iv
Cited Authorities
Page
United States v. Dahda,
853 F.3d 1101 (10th Cir. 2017) . . . . . . . . . . . . . . . . . . 28
United States v. Emmanuel,
565 F.3d 1324 (11th Cir. 2009) . . . . . . . . . . . . . . . . . . 20
United States v. Giordano,
416 U.S. 505 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
United States v. Glover,
736 F.3d 509 (D.C. Cir. 2013) . . . . . . . . . . . . . . . . 28, 29
United States v. Gordon,
871 F.3d 35 (1st Cir. 2017) . . . . . . . . . . . . . . . . . . 20, 28
United States v. Jackson,
849 F.3d 540 (3d Cir. 2017) . . . . . . . . . . . . . . . . . . . . . 17
United States v. Krueger,
809 F.3d 1109 . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23, 25
United States v. Lefkowitz,
285 U.S. 452 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
United States v. Martin,
618 F.3d 705 (7th Cir. 2010), as amended
(Sept. 1, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. McLee,
436 F.3d 751 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . 13
v
Cited Authorities
Page
United States v. North,
735 F.3d 212 (5th Cir. 2013) . . . . . . . . . . . . . . . . . 20, 29
United States v. Ojeda Rios,
495 U.S. 257 (1990) . . . . . . . . . . . . . . . . . . . . . . . 1, 7, 19
United States v. Patane,
542 U.S. 630 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
United States v. Reed,
575 F.3d 900 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . 13
United States v. Scurry,
821 F.3d 1 (D.C. Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . 7
United States v. Vazquez,
605 F.2d 1269 (2d Cir. 1979) . . . . . . . . . . . . . . . . . . 18-19
United States v. Vest,
813 F.2d 477 (1st Cir. 1987) . . . . . . . . . . . . . . . . . . . . 27
Weinberg v. United States,
126 F.2d 1004 (2d Cir. 1942) . . . . . . . . . . . . . . . . . . . . 23
Statutes
Title III, Omnibus Crime Control and Safe
Streets Act of 1968, 18 U.S.C. 2510-22 . . . . . . . passim
18 U.S.C. 2515 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
vi
Cited Authorities
Page
18 U.S.C. 2516(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
18 U.S.C. 2518(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
18 U.S.C. 2518(1)(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 18
18 U.S.C. 2518(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19
18 U.S.C. 2518(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
18 U.S.C. 2518(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 18
18 U.S.C. 2518(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
18 U.S.C. 2518(8)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 18
18 U.S.C. 2518(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
18 U.S.C. 2518(10)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
18 U.S.C. 2519(1)-(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
18 U.S.C. 2519(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
42 U.S.C. 3711 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
47 U.S.C. 1001-1010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Fed. R. Crim. P. 41 . . . . . . . . . . . . . . . . . . . . . . . . 3, 23, 24
Federal Communications Act of 1934, ch. 652,
Title VI § 605, 48 Stat. 1064 (1934) . . . . . . . . . . . . . . . 6
vii
Cited Authorities
Page
Other Authorities
2016 Annual Report to Congress Concerning
Int ercept ed Wi re, Ora l, or Elect ron ic
Communications as Required by Title III of the
Omnibus Crime Control and Safe Streets Act of
1968 (2016 Wiretap Report), available at https://
tinyurl.com/2016WiretapReport . . . . . . . . . . . . passim
2016 Wiretap Report, Wire Table 4, available
at https://tinyurl.com/2016WiretapReport
Wire4Table . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16
2 016 W i r e t a p R e p o r t , W i r e T a b l e A 1 ,
Av a i l able at ht t p s: // t i ny u rl . c om /
2016WiretapReportWireA1Table . . . . . . . . . . . . . . . 16
2014 Annual Report to Congress Concerning
Int ercept ed Wi re, Ora l, or Elect ron ic
Communications as Required by Title III of
the Omnibus Crime Control and Safe Streets
Act of 1968 (2014 Wiretap Report), available at
https://tinyurl.com/2014WiretapReport . . . . . . . . . . 21
2015 Annual Report to Congress Concerning
Int ercept ed Wi re, Ora l, or Elect ron ic
Communications as Required by Title III of
the Omnibus Crime Control and Safe Streets
Act of 1968 (2015 Wiretap Report), available at
https://tinyurl.com/2015WiretapReport . . . . . . . . . . 21
viii
Cited Authorities
Page
Albert Gidari, Stanford Law School, Wiretap
Numbers Still Don’t Add Up, available at https://
tinyurl.com/WiretapNumbersDontAddUp . . . . . . . 15
AT&T Transparency Report First Half of
2 016 , ava i lable at ht tp s: //t i ny u rl.com /
ATTWireReport1stHalf2016 . . . . . . . . . . . . . . . . . . . 15
AT&T Transparency Report Second Half of
2 016 , ava i lable at ht tp s: //t i ny u rl.com /
ATTWireReport2dHalf2016 . . . . . . . . . . . . . . . . . . . 15
Electronic Surveillance Unit, Office of Enforcement
Operations, Criminal Division, U.S. Dep’t
of Justice, Electronic Surveillance Manual
Procedures and Case Law (2005), available at
https://tinyurl.com/USDOJElecSurManual . . . . . . 18
H.R. Rep. No. 827(I), 103rd Cong., 2d Sess.
(1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
S. Rep. No. 1097, 90th Cong., 2d Sess. 2153
(1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 17, 27
S. Rep. No. 541, 99th Cong., 2d Sess. 2 (1986) . . . 6, 8, 12
Stephanie K. Pell, Christopher Soghoian, Your
Secret Stingray’s No Secret Anymore: The
Vanishing Gover nment Monopoly over
Cell Phone Surveillance and Its Impact
o n Na ti o n a l Sec ur i ty a n d Co n s um e r
Privacy, 28 Harv. J.L. & Tech. 1 (2014) . 11, 12, 13, 14
ix
Cited Authorities
Page
T-Mobile/ Metro PCS Transparency Report
for 2016, available at https://tinyurl.com/
TMobileWireReport . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Verizon Transparency Report, available at,
https://tinyurl.com/VerizonWireReport . . . . . . . . . . 15
Spr int Transparency Repor t, available at
https://tinyurl.com/SprintWireReport . . . . . . . . . . . 15
William H. Erickson, et al., Report of the
Nat ion a l C om m i s s ion for t he R e v ie w
of Federal and State Laws Relating to
Wiretapping and Electronic Surveillance 73
(1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-7
Wiretap Orders – Stats, Title III Electronic
S u r ve i l l a nc e 19 6 8 - 2 015 , ava i l able at ,
ht t p s: //epic .or g / pr i va c y/ w i r et ap /st at s /
wiretap_stats.html . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Wiretap Report, Yearly Wiretap Reports from
1997 to 2016, available at https://tinyurl.com/
YearlyWiretapReports . . . . . . . . . . . . . . . . . . . . . . . . 10
Whitfield Diffie & Susan Landau, Privacy
on the Line: The Politics of Wiretapping
and Encryption (2007) . . . . . . . . . . . . . . . . . . . . . . . . 11
1
Interest of Amici Curiae1
Amici are organizations committed to ensuring
constitutional rights continue to be protected as
technology advances and include the Electronic Frontier
Foundation and National Association of Criminal Defense
Lawyers. These organizations have appeared previously
as amici before this Court. Their individual organizational
statements are contained in the Appendix following this
brief.
SUMMARY OF THE ARGUMENT
I. Congress and this Court have long recognized that
wiretapping poses a serious threat to privacy. Indeed, in
1934, Congress initially outlawed wiretapping outright. In
1968, after renewed and intense debate, Congress passed
Title III of the Omnibus Crime Control and Safe Streets
Act of 1968 and permitted wiretapping, but only under
the narrowest of circumstances and subject to restrictive
requirements “carefully drawn to protect extremely
sensitive privacy interests.” United States v. Ojeda Rios,
495 U.S. 257, 268 (1990) (Stevens, J., dissenting).
The privacy concerns that animated Title III’s
strict limits on wiretapping have become only more
acute with the proliferation of cellphones, smartphones,
and Internet-based communications. Modern wiretaps
1. Pursuant to Supreme Court Rule 37.3(a), all parties
consent to the filing of this brief. Pursuant to Supreme Court Rule
37.6, amici state that this brief was not authored in whole or in
part by counsel for any party, and that no person or entity other
than amici or their counsel made a monetary contribution to fund
the preparation or filing of this brief.
2
frequently intercept far more information than monitoring
a traditional phone call or even searching a home—the
interception of our cell phones exposes to the government
the digital records of “nearly every aspect of [our] lives—
from the mundane to the intimate.” Riley v. California,
134 S. Ct. 2473, 2490 (2014). But as communications
have evolved, wiretaps have become only easier for the
government. A wiretap no longer requires physical
intrusion into the phone wires. Now, from the comfort
of their office, government agents not only listen in on
voice conversations, but also read texts and view data
communications, pictures, and emails, sent from cellular
phones located anywhere in the country.
Meanwhile, since Title III’s passage, the number
of wiretaps has ballooned. Last year, over 43 million
conversations were intercepted, 93% of which were
from “portable devices,” largely cell phones. Meanwhile,
only a small fraction of those conversations were
incriminating, meaning that millions of personal and
innocent conversations (and data communications)
were monitored through court-ordered wiretaps. New
technology thus has enhanced the already-acute privacy
concerns posed by wiretapping.
II. The power and pervasiveness of new wiretapping
technology makes Title III’s territorial limits that
much more important. Title III requires a wiretap to be
authorized by a judge within the territorial location that
the wiretap is placed or heard.
That territorial limitation is not a mere technicality—it
is a critical component of the statute’s privacy protections.
Title III’s territorial limits mean that the wiretap is
3
approved, monitored, and overseen by the court with the
closest nexus to the investigation. Geographic restraints
also curtail forum shopping and prevent prosecutors from
seeking wiretap approval from only favorable jurisdictions.
Territorial limits further alleviate the substantial
burden of review, approval, and supervision of wiretaps by
dividing those duties among the various districts. Title III
vests the district courts with discretion whether to issue
a wiretap order, which may issue only after a robust and
detailed wiretap application and affidavit that satisfies
all statutory requirements. Once a wiretap commences,
Title III imposes on the court rigorous supervisory
responsibilities to monitor the progress of the wiretap,
ensure the continued necessity of the wiretap, and confirm
compliance with Title III’s many strictures. If properly
carried out, those statutory responsibilities require
significant attention by the district court, which would be
strained to the breaking point if a diminishing number of
district courts became the centralized hubs for wiretaps
nationwide.
Title III’s territorial limits parallel similar geographic
restrictions on the warrant power at common law and
embodied in the Fourth Amendment, which recognized
that a warrant reached only as far as the issuing official’s
authority. Those territorial limits persist in Federal
Rule of Criminal Procedure 41, which, with few limited
and enumerated exceptions, allow a magistrate judge
to issue search warrants for persons or property within
that judge’s district. See Fed. R. Crim. P. 41(b). Our
longstanding preference for geographically divided
search authority is a guard against abuse that inheres in
centralized power.
4
The government, however, has continued to dispute
that Title III places any meaningful territorial limits
on its authority to tap cellular phones anywhere in the
country. That interpretation of Title III is incorrect
and inconsistent with Title III’s statutory scheme. The
government’s position that wiretaps of cell phones could
issue from any court nationwide would drastically undercut
Title III’s carefully designed system of protections.
III. If law enforcement violates any of Title III’s
carefully drawn requirements, the statute requires
suppression of the wiretapping evidence—a remedy
that promotes compliance with Title III’s extensive
requirements and Congress’s primary objective to limit
and carefully regulate wiretaps’ substantial intrusions
on privacy.
Argument
I.
Title III, Including Its Territorial Limitation, Was
Expressly Designed To Limit Intrusion And Protect
Privacy
A.
Wiretaps Pose A Serious Threat To Privacy As
Congress, States, And This Court Have Long
Recognized
The privacy interest implicated by wiretapping is
acute. Wiretaps have long been viewed as more intrusive
than a physical search warrant. Wiretaps capture not only
the target’s words, but also any and all communications
between the target and third-parties—whether or not
those communications are criminal. Justice Brandeis
expressed this very concern over 90-years ago in his
familiar dissent in Olmstead v. United States:
5
Whenever a telephone line is tapped, the privacy
of the persons at both ends of the line is invaded,
and all conversations between them upon any
subject, and although proper, confidential, and
privileged, may be overheard. Moreover, the
tapping of one man’s telephone line involves the
tapping of the telephone of every other person
whom he may call, or who may call him. As a
means of espionage, writs of assistance and
general warrants are but puny instruments of
tyranny and oppression when compared with
wire tapping.
277 U.S. 438, 475-476 (1928) (Brandeis, J., dissenting).
Justice Brandeis further expressed concern that
“discovery and invention” continually provides “subtle[]”
and “far-reaching” means for the government to “obtain
disclosure in court of what is whispered in the closet.”
Id. at 473.
Recognizing wiretaps’ threat to privacy, as early
as 1862, California “found it necessary to prohibit the
practice by statute.” See Berger v. State of N.Y., 388 U.S.
41, 45 (1967). Other states, such as Illinois and New York,
soon followed suit. Ibid.
Likewise, in 1934, “Congress outlawed the interception
without authorization, and the divulging or publishing of
the contents of wiretaps.” Berger, 388 U.S. at 46; Nardone
v. United States, 302 U.S. 379, 384 (1937) (“For years
controversy has raged with respect to the morality of the
practice of wire-tapping by officers to obtain evidence.
It has been the view of many that the practice involves a
grave wrong.”). That statute made wiretapping a federal
6
criminal offense and made wiretap evidence inadmissible
in court. Federal Communications Act of 1934, ch. 652,
Title VI § 605, 48 Stat. 1064, 1103-04 (1934) (current
version at 47 U.S.C. 605 (2000)).
Forty years after Olmstead, in Katz v. United
States, 389 U.S. 347 (1967), and Berger, supra, this Court
“accepted Justice Brandeis’s logic” concerning the privacy
and threat of wiretaps. S. Rep. No. 541, 99th Cong., 2d
Sess. 2 (1986). In Berger, this Court recognized that
“[b]y its very nature eavesdropping involves an intrusion
on privacy that is broad in scope.” 388 U.S. at 56.
B. With Those Privacy Concerns At The Forefront,
Congress Enacted Title III To Permit Wiretaps
In Only Limited Circumstances
In 1968, Congress passed The Omnibus Crime Control
and Safe Streets Act of 1968, Pub. L. 90–351, 82 Stat.
197, codified at 42 U.S.C. 3711. Title III of the statute (the
Wiretap Act), codified at 18 U.S.C. 2510-22, authorizes
government interception of wire communications only
“under carefully subscribed circumstances.” See S. Rep.
No. 541, at 3556. Congress passed Title III with two
concerns in mind: “(1) protecting the privacy of wire and
oral communications, and (2) delineating on a uniform
basis the circumstances and conditions under which
the interception of wire and oral communications may
be authorized.” S. Rep. No. 1097, 90th Cong., 2d Sess.
2153 (1968). The “draftsman and sponsors of Title III”
further intended to “establish a system of prior review of
applications for surveillance orders.” William H. Erickson,
et al., Report of the National Commission for the Review
of Federal and State Laws Relating to Wiretapping
7
and Electronic Surveillance 73 (1976) (1976 Wiretap
Commission). Title III imposes stringent limitations on
the use of wiretapping, requiring careful adherence to
its requirements.
Congress understood that “[w]iretapping and other
forms of eavesdropping are recognized by even their
most zealous advocates as encroachments on a man’s
right to privacy * * * the most comprehensive of rights
and the right most valued by civilized men.” S. Rep.
No. 1097, at 2231; see also id. at 2180 (“The right here
at stake—the right of privacy—is a right arising under
certain provisions of the Bill of Rights and the [D]ue
[P]rocess [C]lause of the 14th [A]mendment.”). As the D.C.
Circuit recently observed:
The deliberations leading up to the passage
of Title III reveal deep unease over the risk
to privacy interests inherent in granting
wiretapping authority to law enforcement. With
telecommunications technology—and alongside
it eavesdropping technology—evolving rapidly,
members of Congress feared that if [Title III]
is successful, today’s narrowing enclave of
individual privacy will shrink to the vanishing
point.
United States v. Scurry, 821 F.3d 1, 9-10 (D.C. Cir. 2016)
(quoting S. Rep. No. 1097, at 2232) (internal citations and
quotation marks omitted). For that reason, the statute’s
particular requirements were “carefully drawn to protect
extremely sensitive privacy interests.” Ojeda Rios, 495
U.S. at 268 (Stevens, J., dissenting).
8
In 1986, Congress amended Title III to extend its
restrictions to electronic communications—i.e., data,
text messages, and email. See generally S. Rep. No. 541.
Congress recognized that communication technology
had again advanced significantly and that Title III’s
protections had “not kept pace with the development
of communications and computer technology.” Id. at
3556. The 1986 amendments to Title III expanded the
statute to cover “electronic mail operations, computerto-computer data transmissions, cellular and cordless
telephones, paging devices, and video teleconferencing.”
Ibid. Congress further recognized that Title III failed to
protect the “storage and processing of information” by
computers, on which many Americans came to significantly
rely to “lock away a great deal of personal and business
information.” Id. at 3557. Congress recognized that
“[f]or the person or business whose records are involved,
the privacy or proprietary interest in that information
should not change.” Ibid. As it did when it first passed Title
III, Congress again made its privacy concerns paramount:
Most importantly, the law must advance with the
technology to ensure the continued vitality of the
[F]ourth [A]mendment. Privacy cannot be left
to depend solely on physical protection, or it will
gradually erode as technology advances. Congress
must act to protect the privacy of our citizens. If we
do not, we will promote the gradual erosion of this
precious right.
Id. at 3559.
Title III thus broadly prohibits electronic surveillance,
providing for only narrow circumstances under which law
9
enforcement agents may use the technique. United States
v. Giordano, 416 U.S. 505, 515 (1974) (Congress “evinced
the clear intent to make doubly sure that the statutory
authority be used with restraint and only where the
circumstances warrant the surreptitious interception of
wire and oral communications. These procedures were
not to be routinely employed as the initial step in criminal
investigation.”); see also ibid. (Congress sought to limit the
use of wiretaps by “impos[ing] important preconditions
to obtaining any intercept authority at all.”).
Title III imposes a strict set of rules on the application,
authorization, oversight, and termination of a wiretap.
Title III’s requirements go far beyond the procedures
for a standard search warrant. A wiretap must first be
authorized by the Attorney General or another specified
high‐level Department of Justice official before district
court approval may be sought. 18 U.S.C. 2516(1). In
addition to establishing probable cause, Title III also
requires an applicant to establish the necessity of the
wiretap, i.e., wiretapping is a tool of last resort, to be only
used when all less intrusive law enforcement techniques
have failed or would be futile. 18 U.S.C. 2518(1)(c).
During a wiretap, law enforcement must “minimize” the
interception of irrelevant conversations. 18 U.S.C. 2518(5).
Wiretap orders only may remain in place for as long as
necessary, and for no more than 30 days.2 18 U.S.C. 2518(5).
And the wiretap recordings must be immediately sealed
by the district court upon the wiretap’s conclusion. 18
U.S.C. 2518(8)(a).
2. Wiretap orders may be renewed or extended, but
applications for extension are subject to the same requirements
and standards as the original application, with the added
requirement that the government report its results obtained so
far or explain why its failure to obtain results. 18 U.S.C. 2518(1)(f).
10
The authorizing district court is responsible for
oversight of the wiretap, and courts typically require
frequent, periodic reports during the duration of the
order. See 18 U.S.C. 2518(6). Those reports “contain
the prosecutors’ summaries of telephone conversations,
theories of the case, and additional investigative leads,”
and help the authorizing court determine what progress
has been made in a criminal investigation and the need
for continued interception, if any. See, e.g., Scott v. United
States, 436 U.S. 128, 131-32 (1978) (“The order also
required the agents to * * * report to the court every five
days ‘the progress of the interception and the nature of
the communication intercepted.’”). 3
To allow for continued public and Congressional
oversight of wiretapping activities, Title III requires
judges and prosecutors to report to the Administrative
Office of the United States Courts (Administrative Office)
broad-ranging and detailed statistics that reflect the
number of wiretaps and intercepts, their type and length,
and the results of wiretap investigations. See 18 U.S.C.
2519(1)-(2). The Administrative Office is required under
Title III to submit a “full and complete report” of that
information to Congress, which it publishes in an annual
report known as the “Wiretap Report.” 18 U.S.C. 2519(3);
see also, e.g., Wiretap Report, Yearly Wiretap Reports
from 1997 to 2016. 4
3. In addition, to ensure data integrity, 18 U.SC. 2518(8)
requires recording of intercepted communications to prevent
editing, immediate sealing, and judicially supervised custody.
4. Available at https://tinyurl.com/YearlyWiretapReports.
11
C.
The Privacy Concerns Animating Title III
Have Become More Acute With Advancing
Telecommunications Technology
New communication technolog y and advances
in wiretapping techniques have made it increasingly
possible to intercept communications from anywhere
in the country. The potential for intrusions into privacy
that led Congress to impose Title III’s strict limits on
wiretapping only have increased with the growth and
innovation of new technologies—cellphones, smartphones,
and internet-based communication—that are at once more
pervasive and more personal than traditional landlines.
Our cell phones frequently contain far greater information
than a simple voice call or even the search of a home
might reveal. Today, cell phones contain digital records
of “nearly every aspect of [our] lives—from the mundane
to the intimate.” Riley, 134 S. Ct. at 2490. But, when
the government wiretaps our cellphones, those private
moments are exposed to a degree that was not possible,
or imagined, at the time Title III was passed.
Until relatively recently, telephones used copper wires
to carry an electric current representing the sound waves
of your voice. Whitfield Diffie & Susan Landau, Privacy
on the Line: The Politics of Wiretapping and Encryption
131 (2007). Along the way, the signal was passed from
the phone to the wall socket, and then through a series of
wires to a local telephone exchange, where it was routed
to the receiving phone. That signal was “vulnerable to
wiretapping at every point along its path.” Id. at 131. And
traditional carrier-assisted wiretapping “once required
that the interception take place near the target, such as
at a call-switching center.” Pell, 28 Harv. J.L. & Tech at
8 n.33.
12
The advent of “digital telephony” technology altered
the transmission of communications from copper
transmission to “digital transmission modes.” H.R. Rep.
No. 827(I), 103rd Cong., 2d Sess. (1994). Before, “intrinsic
elements of wire lined networks presented access points
where law enforcement, with minimum assistance from
telephone companies, could isolate the communications
associated with a particular surveillance target and
effectuate an intercept.” Id. at 3493-94. The digital
technology, however, “complicated law enforcement’s”
ability to introduce a wiretap into the digital system. See
ibid. As a result, Congress passed the Communications
Assistance for Law Enforcement Act (CALEA), 47
U.S.C. 1001-1010, which required telephone companies
to build “government-mandated interception capabilities
* * * into their networks.” Stephanie K. Pell, Christopher
Soghoian, Your Secret Stingray’s No Secret Anymore:
The Vanishing Government Monopoly over Cell Phone
Surveillance and Its Impact on National Security and
Consumer Privacy, 28 Harv. J.L. & Tech. 1, 9 (2014).
Communication again advanced with the invention
of modern cellular phones, which facilitate mobile
communications “over the air on a radio frequency to a
cell site.” S. Rep. No. 541, at 3563. Despite the inherent
mobility of cellphones, however, with the right technology
and the help of the carriers through CALEA, law
enforcement need not leave the comfort of their police
headquarters to tap a cellular phone. See Pell, 28 Harv.
J.L. & Tech. at 8-9.
Once the cellular phone carrier receives a signed
wiretap order, the phone carrier simply transmits the
signal both to the receiving phone and to the police
13
listening post simultaneously. See United States v.
Reed, 575 F.3d 900, 916 (9th Cir. 2009) (“[T]he data was
compiled in real time by the telephone company and
transferred to the federal agents monitoring the wiretap
via wire.”); United States v. McLee, 436 F.3d 751, 764
(7th Cir. 2006) (describing how calls for “all ongoing
wiretap investigations” were “initially directed to a single
computer hard drive located in” the Chicago office of the
Drug Enforcement Administration). 5
Wiretaps have become even more invasive as they
focus increasingly on cell phones. See 2016 Annual Report
to Congress Concerning Intercepted Wire, Oral, or
Electronic Communications as Required by Title III of the
Omnibus Crime Control and Safe Streets Act of 1968 (2016
Wiretap Report) (93% of all wiretaps are cell phones). 6
Communication continues to evolve w ith the
proliferation of smartphones and the expansion of
Internet-based communication. Now, “hundreds of
millions” of people are communicating through smartphone
“apps,” such as Microsoft’s Skype, Apple’s FaceTime
and iMessage, Google’s Hangouts, and Facebook’s
WhatsApp. Pell, 28 Harv. J.L. & Tech. at 72. Those apps
5. Law enforcement also has the ability to capture signals “as
they are transmitted over the air,” or through active surveillance,
using a device called an International Mobile Subscriber Identity
(IMSI) Catcher, also known as a “cell site simulator.” Pell, 28 Harv.
J.L. & Tech. at 9, 11. The cell site simulator “trick[s] the target’s
phone into connecting to it” instead of a phone company’s cell
tower. Ibid. Cell site simulators can identify and locate all nearby
phones—not just the target’s phone—and can be configured to
intercept outgoing calls and text messages. Ibid. (citing sources).
6. Available at https://tinyurl.com/2016WiretapReport.
14
use internet protocols to transmit data over “cellular
data network[s], rather than the wireless carriers’ legacy
voice and text message systems.” Ibid. The evolution of
those new technologies, which allow many more ways to
communicate, has only enhanced the privacy concerns
addressed by Title III.
As this Court observed in Riley, “it is no exaggeration
to say that many of the more than 90% of American
adults who own a cell phone keep on their person a
digital record of nearly every aspect of their lives.” Riley,
134 S. Ct. at 2490. It is no surprise, therefore, that this
Court recognized that cell phones are quantitatively and
qualitatively different than physical searches and that cell
phones “hold for many Americans ‘the privacies of life.’”
Id. at 2494-2495 (citing Boyd v. United States, 116 U.S.
616, 625 (1886)).
D.
Since Title III’s Passage, Wiretapping Has
Drastically Expanded
Since Title III’s inception, the number of wiretaps
has exploded. In 1968, just 174 wiretaps were authorized.
Electronic Privacy Information Center, Title III Wiretap
Orders – Stats, Title III Electronic Surveillance 19682015. 7 By 2016, that number had ballooned to 3,168
wiretaps, according to the 2016 Wiretap Report, and
potentially far more than that according to “Transparency
Reports” published by telephone carriers themselves. 8
7. Available at https://epic.org/privacy/wiretap/stats/
wiretap_stats.html.
8. A large discrepancy exists between the w iretaps
reported in the recent Wiretap Reports and the number
reported in telephone carriers’ transparency reports. For
15
The number of interceptions has likewise exploded from
400,000 in 1968 to over 43 million interceptions in 2016.
Diffie, supra, at 213; 2016 Wiretap Report, Table A1.
T he rat io of i nt ercept ed com mun icat ions t o
incriminating communications is not encouraging.
According to the Administrative Office, on average, only
about 20% of intercepted conversations are incriminating.
See 2016 Wiretap Report, Wire Table 4. 9 Hence, 80% of
intercepted communications do not advance a criminal
example, the 2016 Wiretap Report identifies 3,168 wiretaps, while the
telephone carriers reported 11,868. Compare 2016 Wiretap Report
with AT&T Transparency Report First Half of 2016 (1,229 wiretaps),
available at https://tinyurl.com/ATTWireReport1stHalf2016;
AT&T Transparency Report Second Half of 2016 (1,219 wiretaps),
available at https://tinyurl.com/ATTWireReport2dHalf2016,
Sprint Transparency Report (2,359 wiretaps), available at
https://tinyurl.com/SprintWireReport; Verizon Transparency
Report (1,306 w iretaps), available at https://tinyurl.com /
VerizonWireReport; T-Mobile/Metro PCS Transparency Report
for 2016 (5,836 wiretaps), available at https://tinyurl.com/
TMobileWireReport. Similar large discrepancies have been noted
in 2014 and 2015. See Albert Gidari, Stanford Law School, Wiretap
Numbers Still Don’t Add Up, available at https://tinyurl.com/
WiretapNumbersDontAddUp (“[Administrative Office] reported
3554 wiretaps in 2014, the four major U.S. carriers reported
10,712 wiretaps implemented for the same period”); Ibid.
(“[Administrative Office] now reports that 4,148 wiretaps were
authorized in 2015 * * * [and] [t]he four major carriers (AT&T,
Sprint, Verizon and T-Mobile) reported a total of 11,633 wiretaps
in 2015”).
9. Available at https://tinyurl.com/2016WiretapReport
Wire4Table. A substantial number of wiretap orders lack
prosecutor’s reports that contain information on, inter alia, the
percentage of incriminating intercepts. Ibid.
16
investigation at all. See ibid. Some jurisdictions have
lower, even dramatically lower, rates of incriminating
intercepts. In 2016, for example, the federal wiretap
with the most intercepted communications occurred in
the Middle District of Pennsylvania involving a total of
“3,292,385 cell phone conversations or messages over
60 days.” 2016 Wiretap Report. But the total number of
incriminating interceptions identified from that order
was zero. 2016 Wiretap Report, Wire A1, Line 2685.10
While that may be the starkest example, it is by no
means the only one. There are numerous other wiretaps
that intercepted tens of thousands of conversations
without logging a single incriminating conversation.
See, e.g., 2016 Wiretap Report, Wire Table A1 at
Rows 1600 (14,459 interceptions, zero incriminating),
1853 (13,789 interceptions, zero incriminating), 1905
(12 ,49 0 interceptions, zero incr iminating), 2 2 6 6
(20,667 interceptions, zero incriminating), 2686 (12,421
interceptions, zero incr iminating), 2697 (12 ,9 9 0
interceptions, zero incriminating). The Wiretap Reports
also contain many examples where the number of
interceptions far exceeds the incriminating conversations.
For example, in the District of Columbia, a wiretap
intercepted 497,437 communications and only 807
were deemed incriminating—indicating that fully
98% of the intercepted communications were innocent
communications. 2016 Wiretap Report, Wire Table A1 at
Row 1068.
10. Available at https://tinyurl.com/2016WiretapReport
WireA1Table.
17
II. Title III’s Territorial Limitation Is An Important
Component Of The Statute’s Restrictive Framework
The power and pervasiveness of new wiretapping
technology underscores the critical importance of Title
III’s territorial limits. Title III requires a wiretap to be
authorized by a judge within the territorial location that
the wiretap is placed or heard.11 In other words, either
the cell phone, the place of interception, or both, must be
in the district for a wiretap to be valid under Title III.
See Pet. App. 16a-17a; United States v. Jackson, 849 F.3d
540, 551-552 (3d Cir. 2017) (citing the uniform view of the
courts of appeals). Title III’s territorial limitation works
in concert with Title III’s other statutory restrictions to
carry out the statute’s guiding purpose: “protecting the
privacy of wire and oral communications.” See S. Rep.
No. 1097, at 2153.
A.
Title III’s Territorial Limits Are Critical To
The Function Of Its Statutory Scheme
Title III’s territorial limitation provides important
privacy protection and is crucial to the proper function
of the statutory scheme, which features intensive district
court and prosecutorial oversight at its core.
11. Title III provides that a wiretap order “authorizing, or
approving the interception of wire, oral, or electronic communications”
may be issued “within the territorial jurisdiction of the court in
which the judge is sitting (and outside that jurisdiction but within the
United States in the case of a mobile interception device authorized
by a Federal court within such jurisdiction).” 18 U.S.C. 2518(3)
(emphasis added).
18
Adherence to Title III’s strict procedures is best
assured when “the jurisdiction having the strongest
investigative nexus to the object in which the monitoring
device is installed” oversees each intensive part of the
process. See Electronic Surveillance Unit, Office of
Enforcement Operations, Criminal Division, U.S. Dep’t of
Justice, Electronic Surveillance Manual Procedures and
Case Law 15 (2005).12 Stripping the territorial limitation
also would undermine, if not eliminate entirely, oversight
by a local, issuing court.
One way that territorial limits improve judicial
oversight is by preventing the concentration of wiretaps in
a few districts, which could easily become overloaded and
unable to discharge the weighty review functions that Title
III imposes. Those oversight functions require that the
authorizing judge review the affidavit and application for
probable cause, necessity and other Title III requirements,
supervise the wire throughout the investigation to ensure
compliance with statutory requirements,13 approve any
extensions,14 and immediately seal wire recordings at
the wiretap’s conclusion.15 Those reporting, renewal, and
1 2 . Ava i l able at ava i l able at ht t p s: // t i ny u rl .com /
USDOJElecSurManual.
13. See 18 U.S.C. 2518(6) (progress reports must be submitted
to the court at regular intervals).
14. 18 U.S.C. 2518(1)(f).
15. 18 U.S.C. 2518(8)(a) (When an interception period expires,
the “recordings shall be made available to the judge issuing such
order and sealed under his directions.”). The seal must be placed
according to the issuing court’s directions “immediately.” 18
U.S.C. 2518(8)(a). Some judges have required the sealing to be
done in their presence. E.g., United States v. Vazquez, 605 F.2d
19
sealing procedures all require careful supervision and
cooperation between the district court, prosecutors, and
investigators.
Geographic dispersion also ensures that district court
judges are able to exercise their discretion whether to
approve a Title III application or not. Congress specifically
declined to make mandatory the issuance of a Title III
order,16 and that discretion is a critical feature of the
statute’s privacy protections. Discretion only can be
properly exercised if the district court has the time and
attention to fully review and consider lengthy and detailed
wiretap applications and affidavits with the rigor that
Title III demands.
Territorial limits also promote investigators’ and
prosecutors’ compliance with Title III’s requirements.
Title III has “been found to be most effective” when
experienced prosecutors are “working closely with
experienced investigators” and in “close cooperation.” 1976
Wiretap Commission at xiv. In particular, it is important
to have close monitoring between the teams to ensure
that minimization requirements, ongoing necessity, and
any proper investigative action (including responses to
threats) are promptly and carefully carried out. Local
oversight and execution of a wiretap helps fulfill those
1269, 1278 (2d Cir. 1979); United States v. Martin, 618 F.3d 705,
709 (7th Cir. 2010), as amended (Sept. 1, 2010). The purpose of the
sealing requirement, bolstered by an in-presence requirement,
is to “ensure the reliability and integrity of evidence obtained by
means of electronic surveillance.” See Ojeda Rios, 495 U.S. at 263.
16. Upon application a “judge may enter” a wiretap order.
18 U.S.C. 2518(3) (emphasis added).
20
goals by forging close communications and links between
the physical surveillance teams and investigators posted
in the wireroom who monitor the communications.17
In short, the intensive procedural requirements that
are imposed to minimize intrusions on individual’s privacy
require close involvement between the investigators
on the ground and the overseeing court. A centralized
wiretapping jurisdiction or a wiretap issued from
a jurisdiction far removed from the on-the-ground
investigation team threatens that carefully circumscribed
congressional framework.
B. Title III’s Territorial Limitation Protects
Privacy By Limiting Forum Shopping
Title III’s territorial limitation further promotes
Congress’s intent to protect privacy by dissuading forum
shopping to preferred judges (or even one preferred
judge).
Stripping the territorial limitation would allow law
enforcement “to use forum manipulation to obtain a
warrant that may not be approved elsewhere.” United
States v. North, 735 F.3d 212, 219 (5th Cir. 2013) (DeMoss,
J., concurring). For that reason, compliance with the
territorial limitation is “a significant protection of
privacy.” Ibid.
17. During a wiretap, investigators are typically located at
a listening post often referred to as a “wireroom.” A wireroom
is the place where the investigators monitor the communications
in real time. See, e.g., United States v. Gordon, 871 F.3d 35, 42
(1st Cir. 2017); United States v. Emmanuel, 565 F.3d 1324, 1327
(11th Cir. 2009).
21
The 1976 Wiretap Commission noted “the dangers
that judge shopping presents to the fair disposition of
a case may be substantial.” 1976 Wiretap Commission
at 73. The Commission found that it is “apparent that
judge shopping with surveillance applications occurs in
several jurisdictions.” Id. at 74. Prosecutors, moreover,
acknowledged to the Wiretap Commission that the “classic
reason” that they sought to maneuver to a different court
was to “avoid a court likely to take unfavorable action
on the [wiretap] application.” Ibid. Responding to the
suggestion to limit wiretap authority to a particular
judge, the Commission found that “there is a danger
that the judge will come to consider himself a member of
the prosecution team, with the result that the quality of
judicial review will be diminished.” Ibid.
Nonetheless, wiretap authorizations are not evenly
distributed around the United States. For example, for
the past three years, the District of Arizona authorized
the most federal wiretaps—between 7 to 9 percent of
the applications approved by federal judges over the last
three years. 2016 Wiretap Report; 2015 Annual Report
to Congress Concerning Intercepted Wire, Oral, or
Electronic Communications as Required by Title III of
the Omnibus Crime Control and Safe Streets Act of 1968
(2015 Wiretap Report);18 2014 Annual Report to Congress
Concerning Intercepted Wire, Oral, or Electronic
Communications as Required by Title III of the Omnibus
Crime Control and Safe Streets Act of 1968 (2014 Wiretap
Report).19 In state courts, 82% of wiretaps were authorized
in just six states, with California and New York accounting
for 54% of all state wiretaps. 2016 Wiretap Report.
18. Available at https://tinyurl.com/2015WiretapReport.
19. Available at, https://tinyurl.com/2014WiretapReport.
22
Without a territorial limitation, there is nothing
stopping any district from becoming a centralized
wiretap district for the entire country. That outcome
would undermine Title III’s restrictive statutory scheme
designed to protect privacy and to promote careful
oversight of any government wiretaps.
C.
Territorial Limitations Have Long Been
Central To Our Nation’s Laws
History teaches “that territorial restraints on the
powers of magistrate judges are nothing new.” United
States v. Krueger, 809 F.3d 1109, 1121 (10th Cir. 2015)
(Gorsuch, J., concurring); Matter of Warrant to Search
a Certain E-Mail Account Controlled & Maintained by
Microsoft Corp., 829 F.3d 197, 201 (2d Cir. 2016), cert.
granted sub nom. United States v. Microsoft Corp., No.
17-2, 2017 WL 2869958 (U.S. Oct. 16, 2017) (“Warrants
traditionally carry territorial limitations.”). Above all, the
placement of a territorial limitation in a statute “evinces a
deeply rooted historical concern for limiting the territorial
reach of magistrate judges’ powers.” Krueger, 809 F.3d
at 1123. A centralized wiretapping forum is not in accord
with this Nation’s governing principles and threatens the
privacy of all Americans.
Territorial limits on search warrants have deep
roots in the common law and the Fourth Amendment. At
common law, a “warrant issued for a search or seizure
beyond the territorial jurisdiction of a magistrate’s powers
* * * was treated as no warrant at all.” Krueger, 809 F.3d at
1125. The principle “animating the common law at the time
of the Fourth Amendment’s framing was clear: a warrant
may travel only so far as the power of its issuing official.”
23
Id. at 1124. In particular, when this Court spoke of the
requirement that a warrant be issued by “magistrates
empowered to issue warrants,” United States v. Lefkowitz,
285 U.S. 452, 464 (1932), state and circuit courts have
“[t]ime and again” interpreted that to mean that “a
warrant issued in defiance of positive law’s restrictions
on the territorial reach of the issuing authority will not
qualify as a warrant for Fourth Amendment purposes.”
Krueger, 809 F.3d at 1124 (collecting cases); Weinberg v.
United States, 126 F.2d 1004, 1006 (2d Cir. 1942) (warrant
issued by the Eastern District of Michigan for property
in the Southern District of New York was invalid because
“constitutional provisions” prohibit a district court from
issuing “search warrants [that] may be used anywhere
in the country”).
Congress likewise has “repeatedly displayed a
preference for geographically divided power,” and with
good reason: “ours is not supposed to be [a] government
* * * with power centralized in one district, but a
government of diffused and divided power, the better to
prevent its abuse.” Krueger, 809 F.3d at 1125.
Those concerns have long been present in the rules
governing physical searches and seizures under the
Federal Rules of Criminal Procedure. Under Rule 41, a
search warrant must be issued by a “magistrate judge
with authority in the district * * * to issue a warrant to
search for and seize a person or property located within
the district.” Fed. R. Crim. P. 41(b)(1). When it was
adopted in 1944, Rule 41 was a “codification of existing law
and practice.” Fed. R. Crim. P. 41, Advisory Committee
Notes. There are only a few exceptions to that rule. Each
24
exception bears a nexus to the magistrate’s territory20
and each was added within the last decade and a half. 21
20. The exceptions to Rule 41’s territorial limitation allow
a magistrate judge to issue a warrant outside the district if:
(b)(2) “the person or property is located within the district when
the warrant is issued but might move or be moved outside the
district before the warrant is executed”; (b)(3) “terrorism may have
occurred” in that district; (b)(4) if a tracking device is installed
within the district, then “the warrant may authorize use of the
device to track the movement of a person or property located
within the district, outside the district, or both”; (b)(5) if a crime
occurs in the district, a judge may issue a warrant for property
outside of the jurisdiction within a U.S. territory, possession or
commonwealth, a premises of a U.S. diplomatic or consular mission
in a foreign state, or a residence owned or leased by the U.S. and
used by a diplomatic or consular mission in a foreign state; or,
(b)(6) a judge may “issue a warrant to use remote access to search
electronic storage media” outside the jurisdiction in two limited
situations: (A) if the location was “concealed through technological
means,” or, (B) in an investigation of fraud or related activity in
connection with computers, the “media are protected computers
that have been damaged without authorization and are located in
five or more districts.” Fed. R. Crim. P. 41(b).
21. Subsection (b)(3) was adopted in 2002 in response to the
terror attacks of September 11, 2011 as part of the USA Patriot
Act of 2001. Subsection (b)(4) was adopted in 2006 to address the
use of tracking devices. Subsection (b)(5) was adopted in 2008 to
cover parts of United States jurisdiction that are “outside any
State or any federal district.” Subsection (b)(6) was adopted in
2016 to address “two specific circumstances” where “a magistrate
judge in a district where activities related to a crime may have
occurred has authority to issue a warrant to use remote access to
search electronic storage media and seize or copy electronically
stored information even when that media or information is or may
be located outside of the district.” Fed. R. Crim. P. 41, Advisory
Committee Notes.
25
See Krueger, 809 F.3d at 1121 (“[T]hat rule grants to
magistrate judges the power to do certain specified
things—but only if they first have ‘authority within the
district.’ ”).
D.
The Government Is Incorrect That Title III
Imposes No Territorial Limits On Cell Phone
Wiretaps
The Government nonetheless has continued to dispute
that Title III places meaningful territorial limitations on
cellular or mobile phone interceptions—which constitute
93% of all interceptions last year. In the court of appeals,
the Government argued that the wiretap order in this case
was not facially deficient because the cellular telephones
were “mobile interception devices” not subject to Title
III’s territorial limits. Brief of Appellee, 2016 WL 4492935
at *22 (2016). Under the government’s view of the statute,
a federal district court or state court 22 could authorize
surveillance on cell phones located anywhere in the
country without any meaningful limits.
The Tenth Circuit correctly rejected that position
and concluded that the term “mobile interception device”
means a “listening device that is mobile.” Pet App. 17a-20a.
Applying the plain language of the statute, the court
found that the government’s interpretation, which would
“treat the cell phones themselves as ‘mobile interception
devices’ ” is “impossible to square with Title III.” Id. at
22. Title III sets a floor for any state wire, and preempts
more lenient wiretap authority. Title III’s jurisdictional limits
therefore also prevent states from exercising nationwide authority
to tap phones outside their geographic limits.
26
18a. The Court explained that the “cell phone is the thing
being intercepted, not the thing being used to intercept
the call.” Id. at 18a-19a.
Beyond being antithetical to the language and purpose
of Title III, the Government’s position for nationwide
jurisdiction to wiretap cellphones is simply impractical.
Just last year, there were 43 million intercepted calls. A
central wiretapping forum in only a handful of federal
district or state courts could not appropriately handle
such a volume of interceptions consistent with Title III’s
rigorous oversight duties including monitoring reports,
minimizing innocent interceptions, ensuring continuing
necessity, extensions, and sealing.
III. Congress Imposed The “Automatic Remedy” of
Suppression To Enforce the Statute as a Whole
Critically, suppression is the exclusive statutory
remedy for any violation of Title III. See 18 U.S.C. 2515
(“Whenever any wire or oral communication has been
intercepted, no part of the contents of such communication
and no evidence derived therefrom may be received
in evidence in any trial * * * if the disclosure of that
information would be in violation of this chapter.”); 18
U.S.C. 2518(10)(a). 23 As the legislative history of Title III
23. Section 2518(10) provides in pertinent part:
Any aggrieved person in any trial, hearing, or
proceeding in or before any court, department,
officer, agency, regulatory body, or other authority of
the United States, a State, or a political subdivision
thereof, may move to suppress the contents of any
wire or oral communication intercepted pursuant to
27
makes clear, that statutory suppression remedy is distinct
from and in addition to Fourth Amendment protection,
and it “is necessary and proper to protect privacy.” S. Rep.
No. 1097, at 2185; see also United States v. Vest, 813 F.2d
477, 482 (1st Cir. 1987) (“[W]e believe that if Congress
had intended to commit to the courts general authority to
create exceptions to section 2515 in the same manner as
the court might develop future exceptions to the [F]ourth
[A]mendment exclusionary rule, Congress could certainly
have said so more clearly.”); United States v. Amanuel, 615
F.3d 117, 125 (2d Cir. 2010) (Title III provides the remedy
of suppression for violations of the act that do not amount
to constitutional violations).
The 1976 Wiretap Commission found that “the
exclusionary evidence rule provided by Title III has
been effective in constraining potentially overzealous
investigators to conduct their electronic surveillances
carefully within the limits of the statute’s procedural
requirements.” 1976 Wiretap Commission at 11-12. The
Commission wrote that the chance of a motion to dismiss
succeeding “and an entire investigation may thereby be
ruined causes investigators seeking convictions to conduct
their electronic eavesdropping with the careful procedural
limits of Section 2518.” Ibid. The Commission concluded
that the “exclusionary evidence rule has special impact
with respect to these searches” and the Commission
“believe[d] it should be retained in Title III.” Id. Indeed,
this chapter, or evidence derived therefrom, on the
grounds that-- (i) the communication was unlawfully
intercepted; (ii) the order of authorization or approval
under which it was intercepted is insufficient on
its face; or (iii) the interception was not made in
conformity with the order of authorization or approval.
28
in interpreting the 1934 federal wiretapping statute,
this Court in Nardone v. United States, 302 U.S. 379,
383 (1937), “employed an exclusionary rule to deter []
violations” of the federal wiretap statute. United States
v. Patane, 542 U.S. 630 n.4 (2004) (discussing Nardone).
The Court in Nardone stated that “Congress may have
thought it less important that some offenders should go
unwhipped of justice than that officers should resort to
methods deemed inconsistent with ethical standards and
destructive of personal liberty.” 302 U.S. at 383.
This Court has strictly applied the suppression
remedy, noting that “Congress intended to require
suppression where there is failure to satisfy any of those
statutory requirements that directly and substantially
implement the congressional intention to limit the use
of intercept procedures.” See Giordano, 416 U.S. at
527-528 (suppressing wiretap because law enforcement
agents failed to obtain authorization from the required
high-level Department of Justice personnel); see also, e.g.,
Scurry, 821 F.3d at 11 (citing to Giordano and ordering
suppression in light of order’s failure to provide identity of
authorizing person); United States v. Glover, 736 F.3d 509,
513 (D.C. Cir. 2013) (citing to Giordano and stating that
“[s]uppression is the mandatory remedy when evidence is
obtained pursuant to a facially insufficient warrant. There
is no room for judicial discretion.” (emphasis added)).
The Tenth Circuit incorrectly held that Title III’s
territorial limitation was not a “core concern” of Title III,
and therefore that suppression was not an appropriate
remedy. See United States v. Dahda, 853 F.3d 1101, 1114
(10th Cir. 2017). Assuming the “core concern” test even
applies, the territorial limitation is not just surplusage
29
or a mere technicality; it is part of the set of carefully
subscribed rules devised by Congress to govern and
protect privacy. See North, 735 F.3d at 218 (DeMoss, J.,
concurring) (agreeing with defendant that “the district
court’s lack of territorial jurisdiction ‘is not a mere
‘technical defect’ but is in fact a central and functional
safeguard underlying [Title III].’”); Glover, 736 F.3d at
515 (“Nor do we think that the jurisdictional flaw in the
warrant can be excused as a ‘technical defect.’”). As such,
suppression is not only an appropriate remedy, it is the
only appropriate remedy.
****
Wiretapping presents a significant infringement of
an individual’s right to privacy. That concern continues
to grow as wiretapping focuses almost exclusively on
cell phones, which carry an individual’s most private
information along with them. Even more than a search of a
home, a wiretap of one’s phone can reveal intimate details
never imagined by the Founders of this country. Title III
balances the privacy concerns against law enforcement
needs by allowing wiretaps in narrow situations that are
closely monitored by local judges in tandem with the local
prosecutors and investigators. Territorial limitations have
been recognized for centuries in the common law and
the Fourth Amendment as a critical protection against
unwarranted government intrusions. Congress carried
forward the long-held tradition of decentralized search
authority into Title III. The territorial limitation in Title
III protects against government overreach by promoting
judicial oversight by a local judge in the jurisdiction having
the strongest investigative nexus to the monitored device,
limiting forum shopping, and dispersing the burdens
30
and duties of wiretap supervision among the various
district courts. This Court should not allow lower courts
or prosecutors to disregard the territorial limitation
Congress placed in Title III. A wiretap order that lacks
those limits is facially invalid, and the evidence collected
pursuant to that order must be suppressed under the
statute.
31
Conclusion
For the reasons stated above, this Court should
reverse the judgments of the United States Court of
Appeals for the Tenth Circuit.
Respectfully submitted,
Jeffrey T. Green
Co-Chair Amicus Committee
National A ssociation of
Criminal Defense Lawyers
1660 L Street, NW
Washington, DC 20036
(202) 872-8600
Ilana H. Eisenstein
Counsel of Record
Jason D. Gerstein
Marc A. Silverman
DLA Piper LLP (US)
One Liberty Place
Philadelphia, PA 19109
(215) 656-3300
ilana.eisenstein@dlapiper.com
Jennifer Lynch
A ndrew Crocker
Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109
(415) 436-9333
Counsel for Amici Curiae
APPENDIX
1a
Appendix
APPENDIX — LIST
OF AMICI CURIAE
The Electronic Frontier Foundation (EFF) is a
nonprofit, member-supported civil liberties organization
working to protect rights in the digital world. EFF actively
encourages and challenges government and the courts to
support privacy and safeguard individual autonomy as
emerging technologies become more prevalent in society.
EFF has served as amicus in multiple cases before this
Court addressing Fourth Amendment protection for data
and communications, including in Carpenter v. united
States, 137 S. Ct. 2211 (2017) (granting certiorari),
Rios v. united States, No. 16-7314 (petition for a writ of
certiorari pending), City of Los Angeles v. Patel, 135 S.
Ct. 2443 (2015), Riley v. California, 134 S. Ct. 2473 (2014),
maryland v. King, 133 S. Ct. 1958 (2013), united States v.
Jones, 565 U.S. 400 (2012), and City of Ontario v. Quon,
560 U.S. 746 (2010).
The National Association of Criminal Defense
Lawyers (NACDL) is a nonprofit voluntary professional
bar association that works on behalf of criminal defense
attorneys to ensure justice and due process for those
accused of crime or misconduct. NACDL was founded in
1958. It has a nationwide membership of many thousands
of direct members, and up to 40,000 with affiliates.
NACDL’s members include private criminal defense
lawyers, public defenders, military defense counsel, law
professors, and judges. NACDL is the only nationwide
professional bar association for public defenders and
private criminal defense lawyers. NACDL is dedicated to
advancing the proper, efficient, and just administration of
justice. NACDL files numerous amicus briefs each year
in the U.S. Supreme Court and other federal and state
2a
Appendix
courts, seeking to provide amicus assistance in cases that
present issues of broad importance to criminal defendants,
criminal defense lawyers, and the criminal justice system
as a whole.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.