Wiretap Laws and Surveillance Equipment Wiretap and covert surveillance equipment is legally advertised and sold "for educational purposes only." That disclaimer protects the seller by doesn't mean it's permissible to use them in illegal applications. Wiretap equipment ("interception devices") and burglar tools are often advertised in survival magazines. If you buy such equipment be careful not to get caught with it. In most states, mere possession of these items is a felony. In Arizona, both are class 6 felonies. My recommendation is, don't buy anything, use it, or carry it if it can get you in trouble. If you have it, you'll be tempted to use it -- probably without legal sanction. Eventually you'll be caught red-handed. Never use such items unless you use them under police supervision. When you have a strong lead on an illegal activity, report it to the FBI as a partial disclosure and negotiate for rewards. At that time, if they feel that wiretaps or lock picks are needed, they may provide such equipment. They will also obtain needed warrants and operate the devices. A pocketbook called "Prince of the City" contains a lot of information on wiretapping, and how New York cops used it illegally, took bribes, concealed evidence, and were caught. It's a good example of wiretap abuse and the consequences of being caught. Another good pocketbook, "Cop Hunter," by Vincent Murano, a retired NYPD detective,is a sequel to "Serpico" and "Prince of the City." It's mainly about NYPD's Internal Affairs Division (IAD) who ferret out corrupt cops, how undercover cops work, and the dangers encountered. The author, Murano, complains frequently about the ineffective electronic equipment they use and that undercover agents risk their lives with it. With that comment in mind, perhaps Crime- Fighters should purchase their own equipment, use it at home, and to become familiar with and depend upon. But be sure to obtain legal authorization before using use it on a case. If you are found using it illegally (without a warrant when a warrant is required) you could be charged with a felony. Cordless Telephones Newspaper article by John Waggoner, in USA Today, July 30, 1990: "IRS cups its ear to cordless phones. If you're thinking about declaring a few imaginary dependents this year, don't mention it on your cordless phone. The Internal Revenue Service may be listening. Under new guidelines for its criminal investigators, the IRS can use radio scanners to eavesdrop on suspected tax dodgers while they chat on their cordless phones. No warrant is necessary. The IRS policy, issued as an update to a handbook for investigators, comes in the wake of a recent Supreme Court action. The high court declined in January (1990) to review a federal appeals court ruling that conversations on cordless phones are not subject to federal privacy laws. The IRS thinks that since there are no legal or constitutional protection against listening in to cordless phones, its agents aren't bound by any higher principles," says Janlori Goldman of the American Civil Liberties Union's Privacy Project. The ACLU has asked Congress to overhaul the 1986 Electronic Communications Privacy Act, which extended federal privacy protection to such areas as cellular telephones and electronic computer mail -- but specifically omitted the emerging technology of cordless phones. The current law makes no sense," says Goldman. "If your telephone happens to have a cord, your privacy is protected by federal law. If not, you have none." Unquote. Radio Shack and other companies now have cordless phone Scramblers to solve the privacy problem. The hand-held phone has a built-in scrambler that transmits garbled info to the base set, which unscrambles it and transmits normal conversations over the regular phone line. That eliminates air-waves eavesdropping. But, not everyone has them or are aware they're available. Cellular Phones Cellular phones are the latest target of eavesdroppers. Scanners are available on the market, similar to a CB or radio scanner, which seek out signals (broadcasts). The scanners automatically tune in and you can listen to other people's conversations -- like radio scanners. A newspaper article in USA Today (April 20, l990), featured an expose on this illegal practice. The article mentioned how David Murphy, of Boston, eavesdrops on cellular phone conversations taking place in the cars around him -- ably demonstrating an illegal but increasingly popular hobby. His headset looks like a Walkman radio so no one suspects his illegal but amusing high-tech hobby -- voyeurism by telephone. David says he hears all kinds of confidential matters discussed, such as credit card numbers and expiration dates when someone is making a purchase, plus intimate details between married people who live with other spouses. It would seem, according to David's accomplishments, the use of a cellular phone may be hazardous to your wealth or marriage --if cellular phone users aren't more careful. Normally, trying to eavesdrop on cellular phones is difficult, especially when travelling in a vehicle because "handoffs" from one cell to another often change the frequency. In crowded areas, where a lot of calls are on the air at the same time it's more difficult to "find" the conversation during handoffs. But it can be done. Cellular phone frequencies are between 800 to 900 megahertz. Hackers are adept at tracking the handoffs, and can fine-tune the reception to hear just as well as the two people on their respective phones who are unaware their security has been breached. There are no tell-tale clicks or background noise of the eavesdropper on a cellular phone because it's a short-wave radio broadcast. A hacker who finds an interesting conversation can also note the frequency being used, which is similar to a telephone number temporarily used for that particular transmission. In a stationary location, where no handoffs are needed, it's relatively simple to lock on to a frequency --identical to planting a wire tap but without any telltale evidence. When police want to, they can obtain wiretap authorization to tap cellular phones from switching stations. They don't have to use a scanner. This new hobby of eavesdropping is gaining popularity, and the costs are coming down to an affordable level. That's bad, not good. It's just a matter of time before enterprising crooks will be using them to "fish" for juicy gossip for blackmail purposes or credit card fraud. Why am I telling you all about an illegal activity? First, so you don't think it's legal (with the possible exception of cordless phones, it isn't). Second, because it's illegal, you should know the use of scanners and eavesdropping on cellular phones whether for fun or other purposes violates the laws mentioned in this chapter. However, it can be authorized like an ordinary wiretap, and therefore may be something you should know about. Last but not least, the bad guys, whose gang you may be trying to infiltrate, might know about it too. They might tap your cordless or cellular phone. Be careful of that, too! The only remedy for absolute confidentiality is to use a telephone scrambler, available for about $299 a pair. They're small units that slip over the telephone handset. You speak through them to the phone mouthpiece. The conversation is scrambled at the transmitting end and unscrambled by a similar device at the receiving end. They use a 9V battery so they're also portable and can be used with cordless or cellular phones. Both scrambler units are manually adjusted to use the same codes. There are 52,488 selectable codes so you can change codes at any time, or daily, to frustrate eavesdropping or bugging. More sophisticated and more expensive units automatically select random codes for each phone call. They are virtually impossible to decode -- even with powerful computers. If David Murphy, or anyone else, were to surreptitiously listen to a confidential telephone conversation and found a juicy bit of information that was damaging to one or both of the parties, he might be able to learn their names and addresses and be tempted to try a bit of blackmail, also illegal. However, there might be a situation in which you do not perceive the situation as illegal blackmail. CrimeFighters' Blackmail Blackmail in its usual form means obtaining or possessing damaging information about another person or company and threatening to disclose that information unless payment is made. Another form of blackmail is more subtle. Say that you found a company polluting water and liable for a million dollar fine. Under pollution laws, you might receive half of the fine when a fine is levied. However, the company may be expected to fight it all the way to the Supreme Court if possible to weaken the effect of bad publicity and to obtain extra time to earn the money to pay the expected fine. That could take many years and, charges might be reduced considerably because of plea bargaining, deals and compromises with the prosecution, and politics. The half a million dollar reward may or may not be paid, and if paid, may take a long time. You might be tempted to contact the company, advising them of your knowledge and conclusive proof of violation and suggest settling the matter out of court (provided the company stops polluting and cleans up the existing pollution) and you suggest payment of the reasonable sum of $250,000 instead of an much larger reward if the case were taken to court. You might reason to yourself that justice has been served, the same as if it had gone to court. Under normal circumstances you might be paid about $500,000, but for a quick settlement out of court, you would be happy to be paid $250,000 right away with no hassles and no waiting. While justice may seem to be served, it is also justice denied. The purpose of law enforcement is to take violators to court to punish them via due process to the appropriate extent of the severity of pollution. The added burden of legal fees and bad publicity, plus a conviction on the record, is also part of the punishment -- not to mention the half a million the EPA would lose by non-payment to the court. From a law enforcement perspective, the bad publicity serves as a warning to others that violators will be punished. When anyone interferes with enforcement of laws, by taking the law into their own hand in this manner no matter how good the intention, it's illegal! There is a law to discourage blackmail of any kind. Title 18 Section 873 Blackmail "Whoever, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demands or receives any money or other valuable thing, shall be fined not more than $2,000 or imprisoned not more than one year, or both." * * * * * * When a person has knowledge of a violation of any law he is required by law to report it. When a person makes a "deal" not to report it, he or she can expect to be charged with blackmail. (The penalty seems woefully inadequate when the expected "profit" from blackmail can be in the hundreds of thousands of dollars. That's a common problem with laws which state a specific amount or terms of imprisonment -- they aren't updated often enough to keep up with the times, technology, and inflation.) The Blackmail Double Cross In the above scenario, if you weren't aware you were using blackmail, the company's lawyer would be quick to recognize it. The company might encourage you to sign an agreement to not disclose the damaging information in exchange for the $250,000 check being offered. But, as soon as the agreement was signed, the company could refuse to pay (by putting a stop payment on the check). They might say "if you report our violation, we'll report your blackmail attempt." At that time, they would have evidence of your blackmail scheme and could use it in court to destroy your credibility as an "honest" witness. You might be charged and convicted of blackmail! Plea bargaining Isn't Blackmail! You can make almost the same deal as above, but make it in your legal capacity as prosecutor under Qui Tam law. For example: (a) Initiate a personal damage lawsuit for $90,000 plus $10,000 for the cost of investigation and other costs. (b) Lay charges. Use pending charges of criminal violations as leverage to settle the civil suit out of court if possible. (c) If your lawsuit has been settled, you can ask the (criminal) court for a $300,000 fine to be levied under appropriate pollution laws where you get half. If the civil suit is not easily settled, let it hang in abeyance, and ask for the $500,000 fine in the criminal suit. (d) Turn over the actual prosecution to the appropriate law enforcement agency. If the defendant loses, and pays the maximum fines you can still get half but may have to wait for it because of anticipated lengthy appeals. If plea bargaining is acceptable to both parties, the usual bargain is: in exchange for a guilty plea, the prosecutor (you) will recommend a smaller fine and possibly downgrade criminal charges. A guilty or nola contendere plea provides the evidence of liability in your civil suit, if it's not already settled, and allows you to ask for summary judgment. The result: you can offer almost the same deal as above as a prosecutor. The difference is, plea bargaining isn't blackmail. All prosecutors use plea bargaining to apply pressure on defendants to reduce their time and court costs. More details on this subject is in chapter 27 ("Problems with Prosecutors and Plea Bargaining"). Wiretapping or Eavesdropping It's important CrimeFighters fully understand this law as it's easy to cross the line from legal to illegal use. As mentioned earlier, many devices on the market can be used for eavesdropping or bugging. Sometimes it's legal, but most of the time it's illegal. It's important you avoid temptation to indiscriminately use such devices to obtain evidence. And, look for violations of anyone who might be illegally using such devices. There is a reward paid for information concerning violations of this law, section (18 USCS 2510 et seq.). Here's some background information. The laws on wiretapping are based on the Fourth and Fifth Amendments to the Constitution of the United States. The Constitution of the United States Fourth Amendment "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Comment: The Fourth Amendment guarantees the right against unreasonable searches, such as random searches or "fishing expeditions." Unauthorized wiretapping or bugging "without reasonable cause" and a court order violates the Fourth Amendment. Fifth Amendment "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment by a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation". Comment: The Fifth Amendment guarantees that no person shall be compelled to be a witness against himself or herself. Our lawmakers probably had in mind an admission of guilt obtained under coercion or mental duress. Often the threat of torture or other threats may result in phoney confessions such as those obtained in dictatorship controlled countries. In the U.S., overzealous law enforcement agents might also be tempted to mentally or physically force a confession from a suspect who is truly innocent. To prevent that from happening in the United States, the Fifth Amendment provides the right to remain silent and not answer questions that might incriminate an individual. An accused person is deemed innocent until proven guilty, and the burden of providing the proof is on the accuser via due process of law. The Miranda case is used as a precedent to illustrate the strength of the Fifth Amendment. Miranda was convicted by his voluntary admission of guilt under pressure by police officers, but the court found the admission of guilt was not admissible as evidence because the accused was not aware of his right to remain silent. ("No one shall be compelled to be a witness against himself"). Police are required to "read the rights" to a person before any questioning is used to determine guilt (not immediately after arrest as most people believe), to make sure the accused is aware of his rights. But after being advised of the rights, anything said by the accused can be used against that person in court. When police have sufficient reason (probable cause) to believe criminal activity is being planned, underway, or already executed, they can obtain a court order under the rules and procedures listed in 18 USCS 2516. In such a situation the search is "reasonable," for a specific person and purpose. When a court order authorizes the wiretap or bug, evidence obtained therefrom is admissible in court. Eavesdropping Devices Title 18 USCS 2510 lists the definitions of wiretapping and bugging devices in lengthy legal format. The listed items described, and manner in which they are used, can be condensed to read -- "any device or apparatus used to listen in on private communications in any manner". Advertising Advertisements are legal when they suggest personal use such as calling from a distant phone to check on your home by listening for sounds of an intruder, or to listen for a baby crying in a separate bedroom of the house, or sound magnifying devices that can be used for bird watching or hunting, or any other personal use which doesn't violate another person's private communications and confidentiality. Anyone can advertise and sell wiretapping equipment and other forms of surveillance equipment for "personal use." When an advertisement says, hints at, suggests or implies illegal use, the advertiser could be charged with violation of the law. There are many advertisements in Popular Science, Soldier of Fortune, and similar magazines selling surveillance equipment of various kinds that strongly suggests a person can listen to private conversations in one form or another. The manufacturing, advertising, sale, and use of any device that is specifically manufactured and used to intercept or record private and confidential conversation of other parties without their knowledge and consent is illegal. Upon conviction, the person or firm placing such an advertisement could forfeit his entire inventory of such equipment under confiscation law (Section 2513) and face a large fine. Design and Intended Use The case of United States vs. Bast (1974, 161 App DC 312, 495 F2d 138) stated an important definition, "manufacture of device may be illegal because it is primarily used for surreptitious interception, even though device may have innocent uses." Another case, United States vs. Schweihs (1978, CA5 Fla 569 F2d 965) mentioned that Congress intended to ban such devices as martini olive transmitters, spike mikes, and microphones disguised as wrist watches and fountain pens, which, by the nature of their design, are obviously intended to be used for covert listening, without prohibiting possession of other legitimate electronic devices merely because they are small or may be used for wire-tapping or eavesdropping. Wiretapping by Court orders Law enforcement agents must obtain a court order to tap a phone line or otherwise intercept private communication to obtain admissible evidence against criminal activity. Without a court order, it is not admissible as evidence. (18 USCS 2515) A court order is not easily obtained. Other evidence (or probable cause) is required first to indicate criminal activity is being planned or in progress and a wire tap or bug is essential to obtain information concerning the known or strongly suspected criminal activity. This legal requirement prevents overzealous police from going on fishing expeditions - tapping and listening to conversations at random ("unreasonable searches") until they found something that might indicate criminal activity or could be used as incriminating evidence. The following Sections spell out the details of his law. Notice that USCS 2513 offers a reward for information leading to an arrest for a violation of covert wiretapping or bugging, in any way. Title 18 USCS 2511. Interception and disclosure of wire or oral communications prohibited. This section is too lengthy to quote verbatim, but deals with the definitions of any person who "willfully" intercepts, directly or indirectly, any form of private communications without the consent of the parties thereto, and or discloses same to other parties, and the penalty for same, which "shall be fined not more than $10,000 or imprisoned not more than five years, or both." Paragraph (1)(a),(b) and (c) of this law says with words to the effect that, if the communication is overheard by accident or by the performance of a person's normal employment such as a switchboard operator or telephone repairman or any other person during their normal job activity without willful intent to eavesdrop, it is not a violation of this section. The following paragraphs are of interest to CrimeFighters: "(2)(c) It shall not be unlawful under this chapter (18 USCS 2510 et seq.) for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception." "(2)(d) It shall not be unlawful under this chapter (18 USCS 2510 et seq.) for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act." * * * * * * Unofficial interpretation: Private conversations may be (legally) recorded by one of the parties to the conversation, such as in business calls where the recording is made for convenience of one or more of the parties to the conversation and not intended to be used for illegal purposes. "Under color of law" means for law enforcement purposes. A CrimeFighter who carries a bug to record a conversation between a suspect and himself, with the intent to make a recording of their conversation, would seem to comply with the law as it's not illegal to make a recording of his own conversation. He doesn't need a court order or authorization for same. Another defense might be that it's not being made for illegal purposes (blackmail, for example) but rather for law enforcement purposes. Or, if it's made with police knowledge and a warrant it would be "under color of law." As such it would be admissible as evidence. Hypothetical situation: Supposing a CrimeFighter sets out to meet and become friendly with a known drug dealer called "Bob." During subsequent phone calls to and from Bob, the CrimeFighter makes (legal) recordings of his conversations and hints to Bob he'd like to make some money being a mule to transport drugs. When the conversation includes information concerning drugs, and proposals from Bob to become part of the drug scene, the first step has been established. After the conversation is recorded, the next step is to take the recording to the FBI. Let them listen to it. The tape recording is for law enforcement purposes. It isn't "misuse" of the information. At this point, the CrimeFighter might suggest to the FBI case agent that he would like to help them obtain further evidence for rewards available. Before a CrimeFighter does anything illegal, he should make sure he is officially authorized as an undercover agent working for law enforcement. Get a written agreement as to your role and specific rewards promised. There's a chance that "Bob" might be an undercover cop or another CrimeFighter. If both have disclosed their information to the FBI, both will be told to "back off." No harm has been done, and no time wasted. If Bob happens to be a local cop setting up a sting operation with you as the stingee, and arrests you, you'll have the FBI as a witness that it was a double sting operation - and help get you off the hook. (That's also a good reason to coordinate CrimeFighter activity with your CrimeFighters' group -- to avoid embarrassment and duplication of effort.) The recordings unofficially made by the CrimeFighter may or may not be admissible as evidence in court, but if the FBI hears tantalizing information on the first tape, they could probably convince a judge to authorize a legal wiretap for further taped conversations which could be used for evidence. The following law can be useful when analyzing advertisements of vendors who either manufacture or sell bugs and bugging devices. Title 18 USCS 2512 "Manufacture, distribution, possession, and advertising of wire or oral communication intercepting devices prohibited. (1) Except as otherwise specifically provided in this chapter (18 USCS 2510 et seq.) any person who willfully - (a) sends through the mail, or sends or carries in interstate or foreign commerce, any electronic, mechanical, or other device, knowing or having reason to know the design of such device renders it primarily useful for the purpose of surreptitious interception of wire or oral communications; (b) manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire or oral communications, and that such device or any component thereof has been or will be sent through the mail or transported in interstate or foreign commerce; or (c) places in any newspaper, magazine, handbill, or other publication any advertisement of - (i) any electronic, mechanical, or other device knowing or having reason to know that the design of such device renders it primarily useful for the purpose of surreptitious interception of wire or oral communications; or (ii) any other electronic, mechanical, or other device, where such advertisement promotes the use of such device for the purpose of surreptitious interception of wire or oral communications, knowing or having reason to know that such advertisement will be sent through the mail or transported in interstate or foreign commerce, shall be fined not more than $10,000 or imprisoned not more than five years, or both. (2) It shall not be unlawful under this section for - (a) a communications common carrier or an officer, agent, or employer of, or a person under contract with, a communications common carrier, in the normal course of communications common carrier's business, or (b) an officer, agent, or employee of, or a person under contract with, the United States, a State, or a political subdivision thereof, in the normal course of the activities of the united States, a State, or a political subdivision thereof, to send through the mail, send or carry in interstate or foreign commerce, or manufacture, assemble, possess, or sell any electronic, mechanical, or other device knowing or having reason to know that the design of such device renders it primarily useful for the purpose of surreptitious interception of wire or oral communications." Title 18 USCS 2513. "(5) 18 USCS Section 2513 Reward for information concerning Wire Tapping devices used, sold or manufactured in violation of Interception of Wire or Oral or Electronic Communications (wiretapping or deliberate eavesdropping on private communications with or without criminal intent). Confiscation of wire or oral communication intercepting devices. Any electronic, mechanical, or other device used, sent, carried, manufactured, assembled, possessed, sold, or advertised in violation of section 2511 or section 2512 of this chapter (18 USCS 2511 or 2512) may be seized and forfeited to the United States. All provisions of law relating to (1) the seizure, summary and judicial forfeiture, and condemnation of vessels, vehicles, merchandise, and baggage for violations of the customs laws contained in title 19 of the United States Code (19 USCS 1 et seq), (2) the disposition of such vessels, vehicles, merchandise, and baggage or the proceeds from the sale thereof, (3) the remission or mitigation of such forfeiture, (4) the compromise of claims, and (5) the award of compensation to informers in respect of such forfeitures, shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under the provisions of this section, insofar as applicable and not inconsistent with the provisions of this section; except that such duties as are imposed upon the collector of customs or any other person with respect to seizure and forfeiture of vessels, vehicles, merchandise and baggage under the provisions of the customs laws contained in Title 19 of the United States Code (19 USCS 1 et seq) shall be performed with respect to seizure and forfeiture of electronic, mechanical, or other intercepting devices under this section by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General." (Added June 19, 1968 Not Admissible as Evidence Title 18 USCS 2515 "Prohibition of use as evidence of intercepted wire or oral or electronic communications 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, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information is in violation of this chapter (18 USCS 2510 et seq.)." (As of June 19, 1968) * * * * * * Comments: Many people and firms advertise electronic bugs and sophisticated bugging equipment. While their advertising methods may seem to be in violation of the above laws, most have a legal disclaimer in the catalog that says, in effect, "The electronic devices in this catalog are for security, demonstrational and scientific purposes only. They are not to be used for surreptitious interception of oral communications and are sold subject to public law 90-351 Title 3, 18 USCS 2511 and all other pertinent laws, regulations and ordinances. It is the sole responsibility of the buyer (not the seller!) to ascertain through competent legal counsel how any law or laws may apply to the use of any items purchased and act accordingly." That lets them off the legal hook. Unfortunately, not everyone reads, understands, or pays attention to the fine print. All they see is dozens of ads selling the items. They assume it must be O.K. to buy and use them if they can make them and sell them. That assumption is not correct. The main thing for CrimeFighters to remember is, using such devices without legal sanction (under color of law) is illegal. The only exception is the instance in which one or more of the parties involved give their consent. A CrimeFighter who is one of the parties of a conversation may make a legal recording for his personal use. Wiretaps made without the consent of any of the parties involved, whether a recording is made or not made, is illegal. F9 for next Chapter