Those privacy interests are even more acute when wiretaps are aimed at cell phones, which is almost always the case nowadays. Judges must closely supervise the use of wiretaps, making sure that they are still needed and are contributing useful information to prosecutors. The territorial limitations placed on wiretaps were designed to help judges keep a close watch on interceptions so they can ensure the intrusions into our private communications are as limited as possible. Law enforcement can access any other information-like photos or documents-that we exchange during these conversations. When Congress legalized wiretapping, it sought to ensure that a wiretap is approved, monitored, and overseen by the judge with the closest nexus to the investigation, in consultation with prosecutors and investigators in charge of the case. There are strong policy reasons supporting these territorial limitations. A wiretap is a massive invasion of privacy because it allows the government to listen-in real-time-on our phone, text, and email conversations. This clearly runs counter to Title III’s geographic limitations. U.S., a federal judge in Kansas issued a wiretap order allowing the defendants’ phones to be tapped anywhere in the country. So an order issued by a judge whose district is comprised of a single state, say Kansas, can only authorize the interception of calls on a phone in Kansas or from an interception point in Kansas. In other words, either the cell phone, the place of interception, or both, must be in the judge’s district for a wiretap to be valid under Title III. One of those requirements is that judges can only authorize wiretap orders for interceptions that occur within their districts. When law enforcement officials wiretap someone’s cell phone, the law doesn’t allow them to tap any phone they want anywhere in the country. The Wiretap Act (also known as “Title III” because it comes from Title III of the 1968 Omnibus Crime Control and Safe Street Act) permits wiretapping, but only under the narrowest of circumstances and subject to restrictive requirements carefully drawn to protect extremely sensitive privacy interests.
The Supreme Court should recognize and give teeth to the critical, privacy-protecting limitations Congress placed on wiretaps, EFF told the court in an amicus brief we filed with the National Association of Criminal Defense Lawyers.
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