{"database": "openregs", "table": "crs_reports", "rows": [["IF13317", "Federal Wiretaps and the Fourth Amendment", "2026-09-21T04:00:00Z", "2026-09-22T17:38:01Z", "Active", "Resources", "Tamsin G. Harrington", "Wiretapping, Civil Rights & Liberties, Fourth Amendment, Jurisprudence, Privacy, Surveillance, Search & Seizure", "The Fourth Amendment prohibits unreasonable searches and seizures, generally requiring that law enforcement obtain a warrant from a neutral and detached magistrate upon a showing of probable cause. In 1928, the Supreme Court determined in Olmstead v. United States that projected voices passing over telephone wires beyond a person\u2019s home were not protected by the Fourth Amendment, so no warrant was required for a wiretap installed outside of the home. Since the Olmstead decision, the case law and statutory framework governing law enforcement surveillance of real-time communications has changed significantly. This In Focus provides a brief history of the Fourth Amendment\u2019s application to such surveillance, an overview of the federal Wiretap Act, selected caselaw interpreting the statute, and considerations for Congress. \nSelected Legal History \nIn Olmstead, the Supreme Court determined the projection of voices outside the home by telephone to be outside the scope of the Fourth Amendment protections because the Court perceived the text of the Amendment to be focused on \u201cmaterial things\u2014the person, the house, his papers or his effects.\u201d By the 1967 case Berger v. New York, the Court\u2019s views had shifted. The Court held that a state statute\u2014which permitted a related type of surveillance, eavesdropping, when authorized by a court order\u2014was unconstitutional under the Fourth Amendment. Explaining its concern about the development of \u201csophisticated electronic devices,\u201d which \u201cpick up whispers in a room,\u201d the Court identified several aspects of the statute that did not \u201ccarefully circumscribe[]\u201d the circumstances under which courts could authorize electronic eavesdropping to prevent so-called \u201cgeneral searches\u201d through electronic listening devices. The Court held that the statute lacked the particularity required by the Fourth Amendment in that it did not require the applicant to describe a particular offense, particularly describe the property to be seized (i.e., the conversations sought), provide notice to parties, or obtain supervision from the court over the execution of the warrant. The decision also condemned the statute\u2019s unrestricted, two-month authorization and lack of sufficient probable cause for extensions. Later in 1967, in Katz v. United States, the Court clarified that the Fourth Amendment applies to \u201cpeople, not places,\u201d officially overturning Olmstead\u2019s physicality requirement and setting a threshold \u201creasonable expectation of privacy\u201d test for Fourth Amendment queries. \nLegislation\nFollowing Olmstead, in 1934, Congress enacted a federal law prohibiting the interception of communications over wires, including by federal law enforcement as evidence in criminal proceedings. In 1968, after the Berger and Katz decisions, Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III or the Wiretap Act) with the dual purpose of \u201cproperly protect[ing] the privacy of oral and wire communications, while providing a uniform basis for authorizing their interception in appropriate cases.\u201d \nCoverage and Relevant Exclusions\nTitle III, as amended, generally prohibits the interception of wire, oral, and electronic communications (including wiretapping and eavesdropping). The categories of information cover aural transfers of the human voice using wires, cables or like connections (such as telephones), communications between two people with an expectation of privacy, and transfers of signs, signals, writing and other data, such as emails and text messages. Courts have generally found the statute to apply to the real-time, contemporaneous interception of communications, not to prior recordings. There are numerous exceptions to Title III\u2019s coverage, including for certain types of electronic communications, intelligence interceptions and technical assistance, and certain interceptions when one of the parties to the communication consents. \nIn 18 U.S.C. \u00a7 2518, the statute sets forth detailed procedures for federal law enforcement to obtain court-ordered interceptions of communications and authorizes certain state interceptions in conformity with that section. The statute also permits emergency interception in specific situations, usually involving an imminent threat to life, while requiring a full application to a court within 48 hours of interception. \nAuthorization\nUnder 18 U.S.C. \u00a7 2516, only a specifically designated Deputy Assistant Attorney General or higher official at the Department of Justice (DOJ) may authorize an application for a federal wiretap of wire or oral communications. In contrast, any attorney for the government, as defined by the Federal Rules of Criminal Procedure, may authorize an application for electronic communications. Reviewing \u00a7 2516, in United States v. Giordano, the Supreme Court stated that \u201c[t]he mature judgment of a particular, responsible Department of Justice official is interposed as a critical precondition to any judicial order\u201d and suppressed evidence obtained through an application signed by the Attorney General\u2019s executive assistant. \nRelying on Giordano, the Second Circuit determined that a similar requirement that the interception order be authorized only from a \u201ccourt of competent jurisdiction\u201d precludes a federal judge\u2019s delegation of authority to a magistrate judge. \nProbable Cause\nTo issue an interception order under Title III, a judge must find probable cause that \u201cparticular communications\u201d about an enumerated offense will be obtained through interception of the facility (usually a phone, device) or target location. The law enforcement officer\u2019s affidavit must generally establish probable cause to believe that the suspects are using the targeted facility to conduct the criminal activity. DOJ has historically imposed strict time constraints on such probable cause evidence to avoid staleness challenges.  \nStatement of Facts\nFederal application packages for Title III authorization typically comprise an application, affidavit, and draft order. Each application for an interception requires the identification of the applicant and a sworn \u201cfull and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued.\u201d This statement must identify the suspects, the target facilities or locations, and the criminal offenses under investigation. The application package must describe the facility to be intercepted with particularity; however, upon a showing that targets are evading law enforcement\u2019s detection, the statute authorizes a roving wiretap tied to a person in lieu of a facility under certain conditions. Reviewing courts have generally distinguished between roving wiretaps and wiretap authorizations for cell phones (including those encompassing changing cell phone numbers associated with a listed serial number or other identifier).\nNecessity\nThe law enforcement application package must include a \u201cfull and complete\u201d statement of investigative techniques that have been \u201ctried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous\u201d to \u201cassure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.\u201d Such traditional techniques typically include surveillance, interviews, infiltration, search warrants, and review of call records. Although the application\u2019s description of such techniques must avoid generalities and conclusory statements and \u201cspecifically relate to the individuals targeted by the wiretap,\u201d courts have found that this requirement is not \u201cdesigned to force the government to exhaust all other conceivable investigative procedures.\u201d \nMinimization\nInterception must be conducted \u201cin such a way as to minimize the interception of communications not otherwise subject to interception.\u201d In Scott v. United States, the Supreme Court explained that this provision does \u201cnot forbid the interception of all nonrelevant conversations\u201d but requires law enforcement\u2019s minimization to be reasonable based on the facts and circumstances of each case. In determining the reasonableness of the minimization, lower courts have looked at the factors identified in Scott, such as the percentage of non-pertinent calls intercepted, the length of calls, the use of code language, the extent of the conspiracy, and the stage of the investigation. \nThe application package typically includes a minimization plan, which can rely on civilian monitors if supervised by an investigative or law enforcement officer and noticed to the court. Minimization is conducted in real time with the exception of communications in a foreign language or code, which must be minimized as soon as practicable. \nDuration, Disclosures, and Other Protections\nAddressing the concerns of the Berger Court as to the extent and length of eavesdropping and wiretapping orders, 18 U.S.C. \u00a7 2518(5) limits the duration to not \u201clonger than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days,\u201d with strict requirements for extensions. \nNotice to the intercepted parties after the fact is required, as are protections for intercepted communications and applications. Individuals in violation of the provisions of Title III are subject to potential criminal and civil liability. \nThe statute contains annual reporting requirements for state and federal judges issuing wiretap orders. In 2025, judges reported a total of 1,735 state and federal wiretaps authorized. Drug offenses were the most prevalent type of offense identified, and the average cost was $92,963 per wiretap. \nSuppression\n18 U.S.C. \u00a7 2518(10)(a) provides for suppression of wire and oral communications evidence if (i) the interception was unlawful, (ii) the order was insufficient on its face, or (iii) the interception was not made in conformity with the order of authorization or approval. In Giordano, the Supreme Court found that the statute required suppression for an unauthorized delegation because the authorization provision \u201cplay[s] a central role in the statutory scheme.\u201d After Giordano, courts concluded that \u201cnot every failure to comply fully with . . . Title III necessitates suppression.\u201d To determine whether suppression was mandatory, courts generally have focused on whether the transgressed statutory provision played a central or substantive role in the regulatory system established by Congress. \nIn 2018, the Supreme Court clarified that \u00a7 2518(10)(a)(i) applies when the \u201cGovernment\u2019s use of a wiretap is unconstitutional or violates a statutory provision that reflects Congress\u2019 core concerns.\u201d Subparagraph (ii) applies when the order lacks information required by the statute; and subparagraph (iii) applies when the \u201cGovernment fails to comply with conditions set forth\u201d in the authorization.\nBoth Title III and the Giordano decision predate the judicially created exception to the exclusionary rule, which can preserve evidence if the government acted in good faith. Federal appeals courts have disagreed whether the doctrine can be applied to avoid suppression of wiretap evidence or whether the statute requires suppression, irrespective of a showing of good faith.\nConsiderations for Congress\nThe Supreme Court has interpreted the Fourth Amendment to establish discrete parameters around law enforcement\u2019s interception of real-time communications. Through Title III, Congress codified the Court\u2019s standards and provided uniform guidance to law enforcement and courts to enable criminal investigations and prosecutions. Congress has amended the statute through the Antiterrorism and Effective Death Penalty Act, the Communications Assistance for Law Enforcement Act, and the Electronic Communications Privacy Act, among others, to encompass new technology and to facilitate law enforcement access to these investigative tools. Congress may continue to examine these provisions in the face of emerging technology and caselaw and legislate, if it chooses to, in line with the Court\u2019s Fourth Amendment jurisprudence.", "https://www.congress.gov/crs_external_products/IF/PDF/IF13317/IF13317.1.pdf", "https://www.congress.gov/crs_external_products/IF/HTML/IF13317.html"]], "columns": ["id", "title", "publish_date", "update_date", "status", "content_type", "authors", "topics", "summary", "pdf_url", "html_url"], "primary_keys": ["id"], "primary_key_values": ["IF13317"], "units": {}, "query_ms": 0.2620532177388668, "source": "U.S. government sources, plus a few identifier registries; each is listed on the methodology page", "source_url": "https://datadawn.org/methodology#data", "license": "Public Domain (U.S. Government data)", "license_url": "https://www.regulations.gov/faq"}