Wiretapping may be viewed as the stuff of secret agents, but if you watch enough true crime documentaries, you’re likely aware it’s a serious investigation tactic actually used by law enforcement. For those who find themselves as the target of a federal criminal investigation, and even those who aren’t necessarily the focus of an investigation, fears about the feds listening in to private phone calls and conversations are not out of the norm.
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While wiretaps may be a warranted concern in some cases, they aren’t used as freely as you may think, especially given the complex layers of oversight, laws, and constitutional rights on privacy and the government’s ability to intrude upon it. If and when wiretapping is used, though, it’s important to know how to respond – whether formal charges have already been filed against you or a loved one, or investigations are still pending.
Understanding Federal Wiretapping
To help you better understand wiretapping, its use in federal criminal cases, and how you can address the matter and channel any paranoia into a reasonable plan of action, our attorneys at Friedman Nemecek Long & Grant, L.L.C., L.L.C. Attorneys at Law have put together a few important things to know.
- Wiretapping defined – A wiretap refers to the interception and monitoring of real-time conversations by a third party. Named from the actual electrical tap once required on a telephone line, wiretapping in the context of criminal law involves a government agency (either the Feds or the State) engaging in what’s known as “lawful interception.” Wiretapping most commonly involves the interception of phone conversations (almost 85% of all federal wiretapping cases in 2016 involved phones, according to federal records), but it can and has been used for internet and e-mail correspondence, with varying degrees of success depending on the new types of encryption and messaging applications used today.
- Types of cases where wiretaps are used – Wiretaps are a form of electronic eavesdropping which allows investigators to collect evidence of criminal activity. From publicly released wiretap reports, wiretapping is most common in state and federal criminal investigations involving drug crimes and drug conspiracies. In fact, the use of wiretapping surged after the declaration of America’s War on drugs, and has remained a popular investigation tool for drug offenses and violent crimes. While it’s still used overwhelming in drug investigations, wiretapping has also become more common in other types of cases, including those involving white collar crimes, fraud, and insider trading, especially if they involve parallel civil investigations. The FBI, DEA, Secret Service, and the SEC are known for their use of wiretaps, though state agencies or investigations involving multi-agency law enforcement groups may also employ wiretapping in their investigations.
- Wiretaps and privacy – The most common misconception about wiretaps is that the government can legally intercept whatever communications it wants. That simply isn’t true. Given the premium we place on privacy, the use of wiretapping is strictly controlled and regulated. Wiretapping is intended to serve as a type of “last resort” in criminal investigations, and their initiation and continued use requires approval from a judge, and compliance within the limitations of the law. Investigators and prosecutors must provide ample evidence regarding the investigative steps they’ve exhausted, and effectively argue that the only available option left is legal interception of private conversations. Typically, they’ll point to fruitless grand jury inquiries, surveillance, pole cameras, and informants or cooperating witnesses when seeking approval from the court.
- Wiretaps and federal criminal cases – When wiretaps result in a criminal indictment, there may be options. Wiretaps, just like other forms of evidence obtained in a criminal investigation, must be secured and used in accordance to special rules and procedures. When they’re not, there may be room to argue that federal authorities failed to exhaust other available investigative resources (essentially taking an unlawful shortcut), violated Constitutional protections against unlawful searches and seizures, or used wiretaps outside of the limited scope permitted by the law and the circumstantial facts, which could result in evidence obtained through those wiretaps being suppressed, or thrown out of the case. Effectively arguing this point or challenging the use of wiretaps on other bases requires the keen insight of proven defense attorneys with extensive knowledge of federal investigations, case law, and ways to ensure the government doesn’t overstep its bounds.
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The mere possibility of a potential wiretap is enough to cause many people tremendous concerns. Though there are strict laws and procedural rules in place governing the use of wiretapping in federal criminal investigations, they can be and certainly are used in many cases – whether as a tool for obtaining evidence or as a means of applying pressure to individuals in a conspiracy (who can be held responsible for the conduct of co-conspirators even if they were involved to a lesser extent).
Wiretapping makes for complicated cases, and those cases demand the attention of highly experienced defense attorneys familiar with federal crime investigations and indictments. With decades of collective experience in federal courts throughout Ohio and beyond, Attorney Ian N. Friedman and our legal team have the insight needed to effectively evaluate and challenge the use of wiretapping, and provide the counsel and representation clients need as they navigate difficult and stressful experiences.
If you have questions about a federal criminal matter in Ohio or anywhere in the state of Ohio, Friedman Nemecek Long & Grant, L.L.C., L.L.C. Attorneys at Law is available to help. Call (888) 694-4645 or contact us online to speak with an attorney.
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