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TABLE D.1 Court-ordered Electronic Surveillance Authorized Under Title III, 1994

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The U.S. Code, in Section 2511 of Title 18 and Sections 1809-1810 of Title 50, provides specific criminal and civil penalties for individuals (law enforcement officials and private citizens alike) who conduct electronic or wire surveillance of communications (defined below) in a manner that is not legally authorized.1 Legal authorization for such surveillance is provided for specific circumstances in law enforcement and foreign intelligence collection as described below.

56 For a detailed analysis of ECPA's additions to electronic surveillance law, see Fishman,  1994, sections 7.21-7.28, 7.32.

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Electronic surveillance governed by FISA includes interception of wire, radio, and other electronic communications. Interception of these communications is regulated only if they take place under conditions of a reasonable expectation of privacy, in which a warrant would be required for law enforcement surveillance. It addresses only communications occurring at least partly within the United States (wholly, in the case of radio communications), although listening stations used by investigating officers may be located elsewhere. FISA also covers the use of pen registers and trap-and-trace devices.

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One of the more intrusive aspects of electronic surveillance, in comparison to physical search and seizure, is the fact that the invasion of privacy continues over a period of time and is likely to intercept many communications that are irrelevant to the investigation. To restrict this invasion of privacy, Title III requires law enforcement officials to perform a procedure known as In the context of a wiretap or bug, minimization requires real-time monitoring of the surveillance device. When conversations are intercepted concerning irrelevant subjects, such as family gossip, monitoring officers must turn off the device. At intervals thereafter, they must turn on the device to spot-check for relevant communications, which may then be recorded. Minimization procedures must be described in the application for the intercept order. Failure to minimize properly may result in suppression of evidence.

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ties of U.S. persons, and FISA surveillance may be performed only against foreign powers or their agents. FISA regulates signals intelligence collection conducted in the United States and signals intelligence collection directed at a known U.S. person located in the United States; Executive Order 12333 regulates signals intelligence collection directed at a known U.S. person located outside the United States. (See Table D.3 for a description of what approvals are required for electronic surveillance of communications in various circumstances.) To conduct surveillance of a U.S. person within the United States, the executive branch must demonstrate to a special court, the Foreign Intelligence Surveillance Court (discussed below), probable cause to conclude that the U.S. person is an ''agent of a foreign power." The phrase includes persons who engage in, or aid or abet individuals who engage in, espionage, terrorism, or sabotage. Each FISA warrant application is signed, under oath, by the applicant, certified by the Secretary of Defense or Deputy Secretary of Defense that it is directed against a bona fide "foreign power" or "agent of a foreign power," reviewed by the Department of Justice and endorsed by the Attorney General, and approved by a judge of the Foreign Intelligence Surveillance Court. The warrant application must also identify the type of foreign intelligence information sought; communication media, facilities, and persons to be monitored; devices and procedures to be used, including those for minimization; duration of the order, up to 90 days (or 1 year if the target is a foreign power); review of previous surveillance

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Like Title III, FISA provides statutory procedures for authorizing electronic surveillance within the United States. Executive Order 12333 specifically states that no foreign intelligence collection may be undertaken for the purpose of acquiring information concerning the domestic activi-

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31 The reported that one of the first publicized instances of law enforcement use of a Title III intercept order to monitor a suspect's electronic mail occurred in December 1995, when a CompuServe Information Services customer was the subject of surveillance during a criminal investigation. See January 2, 1996, p. B16.