Q: What is the statutory authority for reports concerning wire, oral, or electronic communications?
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Pub. L. No. 90-351) requires the Administrative Office of the United States Courts (AO) to report to Congress the number and nature of federal and state applications for orders authorizing or approving the interception of wire, oral, or electronic communications. This report is commonly referred to as the Wiretap Report and is codified at 18 U.S.C. § 2519(3).
Q: Have there been any changes to the reporting requirements section of the statute over the years?
The Federal Judiciary Administrative Improvements Act of 2010 (Pub. L. No. 111-174, § 6) amended 18 U.S.C. § 2519 to change the deadlines for judges and prosecutors to submit reports to the AO on approved or denied orders for wiretaps. Judges now must submit reports to the AO by January 31 on all wiretap orders that expired during the previous calendar year. Prosecutors now must submit reports to the AO by March 31 on wiretap orders they applied for that expired during the previous calendar year. In addition, the Director of the AO now must submit this annual report of wiretap activity to Congress in June.
Pub. L. No. 106-197, § 2(a) (2000) amended 18 U.S.C. § 2519(2)(b) to require that reporting should reflect the number of wiretap applications granted for which encryption was encountered and whether such encryption prevented law enforcement officials from obtaining the plain text of communications intercepted pursuant to the court orders.
The Electronic Communications Privacy Act of 1986 (Pub. L. No. 99-508, Title I, §§ 101(c)(1)(A) and 106(d)(4)) amended 18 U.S.C. § 2519(1)(b) to require the AO to report on whether the type of order requested was an ordinary specification order or a relaxed specification order under 18 U.S.C. § 2518(11). The Act also added electronic communications to the types of intercepts the AO must report.
The Foreign Intelligence Surveillance Act of 1978 (Pub. L. No. 95-511, Title II, § 201(h)) amended 18 U.S.C. § 2519(3) to clarify that the reporting requirements are limited to intercepts specified in Chapter 119 of Title 18 U.S.C.A. The AO is not authorized to collect information on intercepts governed by the Foreign Intelligence Surveillance Act of 1978 (FISA).
Q: Who formulates the reporting requirements?
The Director of the AO is empowered to develop and revise the reporting regulations and reporting forms for collecting information on intercepts. Wiretap reports dating back to 1997 are available on uscourts.gov. To obtain the reporting forms, visit the Court Form by Number page on uscourts.gov. The wiretap reporting form numbers are WT-1, WT-2, and WT-3.
Q: How does the AO collect information for the annual wiretap report?
Each federal and state judge is required to file a report with the Director of the AO on each application for a court order authorizing the interception of a wire, oral, or electronic communication (18 U.S.C. § 2519(1)) that expired during the preceding year. The judge reports for all wiretap orders must be submitted to the AO by January 31 of the subsequent year after expiration of the court order (after all extensions have expired) or after denial of the application.
Prosecuting officials who applied for interception orders, including the Attorney General of the United States or his or her designee at the federal level and any prosecuting attorneys with statutory authority at the state level, are required to submit reports to the AO by March 31 on all orders that expired during the previous calendar year (18 U.S.C. § 2519(2)).
Q: What information does the AO receive from judges?
A judge reports the name and jurisdiction of the prosecuting official who applied for the order, the criminal offense under investigation, the type of intercept device, the physical location of the device, and the duration of the intercept.
Q: What information does the AO receive from prosecutors?
A prosecutor reports information related to the cost of the intercept, the number of days the intercept device was in operation, the number of persons whose communications were intercepted, the number of intercepts, and the number of incriminating intercepts recorded. Results of the interception orders such as arrests, trials, convictions, and the number of motions to suppress evidence are also noted in the prosecutor reports.
Q: What information is not reported to the AO?
Neither the judges’ reports nor the prosecuting officials’ reports include the names, addresses, or phone numbers of parties investigated. The AO is not authorized by statute to collect this information.
No report to the AO is needed when an order is issued with the consent of one of the principal parties to the communication. Examples of such situations include the use of a wire interception to investigate obscene phone calls; the interception of a communication to which a police officer or police informant is a party; or the use of a body microphone.
No report to the AO is required for the use of a pen register (a device attached to a telephone line that records or decodes impulses identifying the numbers dialed from that line) unless the pen register is used in conjunction with any wiretap devices whose use must be recorded. No statistics are collected on the number of devices used in conjunction with each order.
The AO does not receive any information on interceptions regulated by the Foreign Intelligence Surveillance Act of 1978 (FISA).
Q: Is a prosecutor required to send the AO a report of “no activity” when no interceptions of wire, oral, or electronic communications occurred during the preceding year?
A report of “no activity” is not required. However, when additional activity (including costs, arrests, trials, convictions, or motions to suppress) occurs related to a wiretap reported in a prior year, the additional results must be reported (see 18 U.S.C. § 2519(2)(g)).
Q: What happens if a judge or prosecutor report is received by the AO after the deadline?
Each year, the AO receives reports after the deadline has passed. The filing of some of these reports may be delayed to avoid jeopardizing ongoing investigations. Information received after the deadline will be included in next year’s report.