18 U.S.C. § 2518 — Procedure for interception of wire, oral, or electronic communications

submitted 58 years ago by Pub. L. 90-351 to r/title-18-CRIMES-AND-CRIMINAL-PROCEDURE · 2,861 words · no verdicts yet

in plain englishAI-generated · not legal advice

Investigators must get a judge's written approval, based on probable cause, before wiretapping calls or conversations. In emergencies, they may start listening first but must get approval within 48 hours. Wiretap orders cannot exceed 30 days without renewal, and recordings must be sealed and protected. People who were tapped must generally be notified within 90 days. Illegally obtained wiretap evidence can be thrown out of court.

This section spells out exactly how law enforcement must apply for, and use, a court order allowing them to secretly intercept wire, oral, or electronic communications — a wiretap. (1) Every application must be written, made under oath, and state the applicant's legal authority to apply. It must include: (a) who the applying officer is, and who authorized the application; (b) a full statement of facts backing the request — including details of the specific crime, a specific description of where the interception will happen (except when subsection (11) applies), a specific description of the kind of communications sought, and the identity of the person targeted, if known; (c) whether other investigative methods have been tried and failed, or would likely fail or be too dangerous; (d) how long the interception needs to run, and — if it shouldn't stop automatically the first time the target communication happens — facts showing probable cause more of that same kind will keep occurring; (e) a full account of every earlier application known to the applicant involving the same people, places, or facilities, and what each judge decided; and (f) if this is a request to extend an existing order, the results obtained so far, or a reasonable explanation for the lack of results. (2) The judge can demand more testimony or documents to support the application. (3) The judge can issue the order — without notifying anyone in advance — covering interception within the judge's own district (and, for a mobile device authorized by a federal court there, anywhere else in the U.S.), but only after finding probable cause that the person is committing, has committed, or is about to commit an offense specifically listed in section 2516; probable cause that relevant communications about that offense will be captured; that normal investigative methods have been tried and failed, or would likely fail or be too dangerous; and — except when subsection (11) applies — probable cause that the facility or place is being used, or about to be used, for that crime, or is leased to, listed under, or commonly used by that person. (4) Every order must specify the identity of the target, if known; the location and nature of the facility or place covered; a specific description of the communications sought and the crime involved; the agency authorized to intercept and who authorized the application; and how long interception is authorized, including whether it stops automatically once the target communication is captured. If asked, the order can direct a communications provider, landlord, custodian, or similar party to give whatever help and technical support is needed to carry out the interception smoothly, with minimal disruption to their normal service — and that party must be paid back for reasonable expenses. An order can also enforce a provider's obligations under the Communications Assistance for Law Enforcement Act, through section 2522. (5) No order can authorize interception longer than needed, and never more than 30 days — a clock that starts on whichever comes first, the day interception actually begins or 10 days after the order is signed. Extensions require a brand-new application meeting all of (1)'s requirements and a fresh finding under (3), each capped at 30 days. Every order must require interception to start as soon as practical, to minimize picking up unrelated communications, and to stop once the goal is met or 30 days pass. If communications are in code or a foreign language and no expert is reasonably available during interception, that minimizing can happen afterward instead. Interception can be carried out by government staff or a contractor, as long as a supervising officer is in charge. (6) The order can require periodic progress reports to the judge, at whatever intervals the judge sets. (7) In a true emergency — immediate danger of death or serious injury, a national-security conspiracy, or organized-crime-type activity that makes it impossible to get an order first — a specially designated federal or state prosecutor can start intercepting without an order, but must apply for one, following the usual process, within 48 hours. If no order is obtained, interception must stop immediately once the target communication is captured or the application is denied, whichever is first. If the application is denied, or interception ends without ever getting an order, everything captured is treated as illegally obtained, and the target must be served the notice described below in (8)(d). (8)(a) Intercepted communications must be recorded if possible, protected against tampering, and — as soon as the order or its extensions expire — turned over to the judge and sealed under the judge's direction. They can't be destroyed except by court order, must be kept 10 years regardless, and duplicates can be made for the investigative purposes allowed under section 2517(1) and (2). Before recordings can be used or disclosed more broadly under section 2517(3), there must be either that seal or a satisfactory explanation for its absence. (b) Applications and orders themselves must also be sealed by the judge, unsealed only on a good-cause showing, never destroyed except by court order, and kept 10 years. (c) Breaking these rules can be punished as contempt of the judge. (d) Within 90 days after a denied emergency application, or after an order's authorized period ends, the judge must serve an "inventory" notice on the people named in the order or application (and anyone else justice requires), saying that an order or application was filed, when and for how long interception was authorized, and whether anything was actually intercepted. On request, the judge can let that person inspect relevant material if that serves justice, and can delay the notice on an ex parte showing of good cause. (9) Intercepted communications, or evidence from them, can't be used at trial or any hearing unless every party got a copy of the court order and application at least 10 days beforehand — a rule a judge can waive if that timing wasn't possible and the delay won't unfairly hurt the party. (10)(a) Anyone with a personal stake can move to suppress intercepted communications on the grounds that the interception was illegal, the authorizing order was legally defective, or the interception didn't actually follow what the order allowed — generally before the proceeding starts. If granted, everything intercepted is treated as illegally obtained, and the judge can allow inspection of relevant material in the interest of justice. (b) The government can appeal a ruling suppressing evidence, or denying an application, if the U.S. Attorney certifies the appeal isn't just to cause delay — within 30 days, pursued without delay. (c) For nonconstitutional violations involving electronic communications, the remedies in this chapter are the only ones available. (11) The requirement to specifically name the facility or place being tapped doesn't apply if: (a) for an oral communication, a federal officer applies with approval from the Attorney General or a deputy/assistant, the application fully explains why naming a place isn't practical and identifies the target, and the judge agrees; or (b) for a wire or electronic communication, the same approval applies, the application identifies the suspect and shows probable cause they could act to defeat interception if a specific facility were named, the judge agrees, and the order is limited to the time it's reasonable to assume that person is near the device. (12) When (11)(a) applies, interception can't start until the person carrying out the order actually pinpoints where the communication is happening. A provider served with an (11)(b) order can ask the court to modify or cancel it if it can't reasonably or promptly help — a request the court must decide quickly, after notifying the government.

facts

- Codified at 18 U.S.C. § 2518, titled "Procedure for interception of wire, oral, or electronic communications," part of Chapter 119 governing wiretap procedures. - Originally enacted by Pub. L. 90–351, title III, § 802, on June 19, 1968 (82 Stat. 218). - The statute has been amended seven times, most recently by Pub. L. 105–272, title VI, § 604, Oct. 20, 1998. - The provision spans 2,861 words, detailing application requirements, judicial authorization standards, order specifications, and emergency interception procedures. - Source credit reflects amendments across six separate public laws between 1968 and 1998, including Pub. L. 91–358, 95–511, 98–473, 99–508, 103–414, and 105–272.

the actual law source: uscode.house.gov ↗public domain

(1)

Each application for an order authorizing or approving the interception of a wire, oral, or electronic communication under this chapter shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information:

(a)

the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application;

(b)

a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) except as provided in subsection (11), a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted;

(c)

a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;

(d)

a statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;

(e)

a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire, oral, or electronic communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application; and

(f)

where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.

(2)

The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.

(3)

Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting (and outside that jurisdiction but within the United States in the case of a mobile interception device authorized by a Federal court within such jurisdiction), if the judge determines on the basis of the facts submitted by the applicant that—

(a)

there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;

(b)

there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;

(c)

normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;

(d)

except as provided in subsection (11), there is probable cause for belief that the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.

(4)

Each order authorizing or approving the interception of any wire, oral, or electronic communication under this chapter shall specify—

(a)

the identity of the person, if known, whose communications are to be intercepted;

(b)

the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;

(c)

a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;

(d)

the identity of the agency authorized to intercept the communications, and of the person authorizing the application; and

(e)

the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.

An order authorizing the interception of a wire, oral, or electronic communication under this chapter shall, upon request of the applicant, direct that a provider of wire or electronic communication service, landlord, custodian or other person shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such service provider, landlord, custodian, or person is according the person whose communications are to be intercepted. Any provider of wire or electronic communication service, landlord, custodian or other person furnishing such facilities or technical assistance shall be compensated therefor by the applicant for reasonable expenses incurred in providing such facilities or assistance. Pursuant to section 2522 of this chapter, an order may also be issued to enforce the assistance capability and capacity requirements under the Communications Assistance for Law Enforcement Act.

(5)

No order entered under this section may authorize or approve the interception of any wire, oral, or electronic communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days. Such thirty-day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or ten days after the order is entered. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of this section and the court making the findings required by subsection (3) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days. In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception. An interception under this chapter may be conducted in whole or in part by Government personnel, or by an individual operating under a contract with the Government, acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception.

(6)

Whenever an order authorizing interception is entered pursuant to this chapter, the order may require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the judge may require.

(7)

Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that—

(a)

an emergency situation exists that involves—

(i)

immediate danger of death or serious physical injury to any person,

(ii)

conspiratorial activities threatening the national security interest, or

(iii)

conspiratorial activities characteristic of organized crime,

that requires a wire, oral, or electronic communication to be intercepted before an order authorizing such interception can, with due diligence, be obtained, and

(b)

there are grounds upon which an order could be entered under this chapter to authorize such interception,

may intercept such wire, oral, or electronic communication if an application for an order approving the interception is made in accordance with this section within forty-eight hours after the interception has occurred, or begins to occur. In the absence of an order, such interception shall immediately terminate when the communication sought is obtained or when the application for the order is denied, whichever is earlier. In the event such application for approval is denied, or in any other case where the interception is terminated without an order having been issued, the contents of any wire, oral, or electronic communication intercepted shall be treated as having been obtained in violation of this chapter, and an inventory shall be served as provided for in subsection (d) of this section on the person named in the application.

(8)(a)

The contents of any wire, oral, or electronic communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire, oral, or electronic communication under this subsection shall be done in such a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. Custody of the recordings shall be wherever the judge orders. They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for ten years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections (1) and (2) of section 2517 of this chapter for investigations. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom under subsection (3) of section 2517.

(b)

Applications made and orders granted under this chapter shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. Such applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for ten years.

(c)

Any violation of the provisions of this subsection may be punished as contempt of the issuing or denying judge.

(d)

Within a reasonable time but not later than ninety days after the filing of an application for an order of approval under section 2518(7)(b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of—

(1)

the fact of the entry of the order or the application;

(2)

the date of the entry and the period of authorized, approved or disapproved interception, or the denial of the application; and

(3)

the fact that during the period wire, oral, or electronic communications were or were not intercepted.

The judge, upon the filing of a motion, may in his discretion make available to such person or his counsel for inspection such portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent jurisdiction the serving of the inventory required by this subsection may be postponed.

(9)

The contents of any wire, oral, or electronic communication intercepted pursuant to this chapter or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a Federal or State court unless each party, not less than ten days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved. This ten-day period may be waived by the judge if he finds that it was not possible to furnish the party with the above information ten days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving such information.

(10)(a)

Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that—

(i)

the communication was unlawfully intercepted;

(ii)

the order of authorization or approval under which it was intercepted is insufficient on its face; or

(iii)

the interception was not made in conformity with the order of authorization or approval.

Such motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter. The judge, upon the filing of such motion by the aggrieved person, may in his discretion make available to the aggrieved person or his counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interests of justice.

(b)

In addition to any other right to appeal, the United States shall have the right to appeal from an order granting a motion to suppress made under paragraph (a) of this subsection, or the denial of an application for an order of approval, if the United States attorney shall certify to the judge or other official granting such motion or denying such application that the appeal is not taken for purposes of delay. Such appeal shall be taken within thirty days after the date the order was entered and shall be diligently prosecuted.

(c)

The remedies and sanctions described in this chapter with respect to the interception of electronic communications are the only judicial remedies and sanctions for nonconstitutional violations of this chapter involving such communications.

(11)

The requirements of subsections (1)(b)(ii) and (3)(d) of this section relating to the specification of the facilities from which, or the place where, the communication is to be intercepted do not apply if—

(a)

in the case of an application with respect to the interception of an oral communication—

(i)

the application is by a Federal investigative or law enforcement officer and is approved by the Attorney General, the Deputy Attorney General, the Associate Attorney General, an Assistant Attorney General, or an acting Assistant Attorney General;

(ii)

the application contains a full and complete statement as to why such specification is not practical and identifies the person committing the offense and whose communications are to be intercepted; and

(iii)

the judge finds that such specification is not practical; and

(b)

in the case of an application with respect to a wire or electronic communication—

(i)

(ii)

the application identifies the person believed to be committing the offense and whose communications are to be intercepted and the applicant makes a showing that there is probable cause to believe that the person’s actions could have the effect of thwarting interception from a specified facility;

(iii)

the judge finds that such showing has been adequately made; and

(iv)

the order authorizing or approving the interception is limited to interception only for such time as it is reasonable to presume that the person identified in the application is or was reasonably proximate to the instrument through which such communication will be or was transmitted.

(12)

An interception of a communication under an order with respect to which the requirements of subsections (1)(b)(ii) and (3)(d) of this section do not apply by reason of subsection (11)(a) shall not begin until the place where the communication is to be intercepted is ascertained by the person implementing the interception order. A provider of wire or electronic communications service that has received an order as provided for in subsection (11)(b) may move the court to modify or quash the order on the ground that its assistance with respect to the interception cannot be performed in a timely or reasonable fashion. The court, upon notice to the government, shall decide such a motion expeditiously.

Source credit: (Added Pub. L. 90–351, title III, § 802, June 19, 1968, 82 Stat. 218; amended Pub. L. 91–358, title II, § 211(b), July 29, 1970, 84 Stat. 654; Pub. L. 95–511, title II, § 201(d)–(g), Oct. 25, 1978, 92 Stat. 1797, 1798; Pub. L. 98–473, title II, § 1203(a), (b), Oct. 12, 1984, 98 Stat. 2152; Pub. L. 99–508, title I, §§ 101(c)(1)(A), (8), (e), 106(a)–(d)(3), Oct. 21, 1986, 100 Stat. 1851–1853, 1856, 1857; Pub. L. 103–414, title II, § 201(b)(1), Oct. 25, 1994, 108 Stat. 4290; Pub. L. 105–272, title VI, § 604, Oct. 20, 1998, 112 Stat. 2413.)

history & why it existsrecord from the source credit

1968Enacted · Pub. L. 90-351 · 82 Stat. 218
1970Amended · Pub. L. 91-358 · 84 Stat. 654
1978Amended · Pub. L. 95-511 · 92 Stat. 1797, 1798
1984Amended · Pub. L. 98-473 · 98 Stat. 2152
1986Amended · Pub. L. 99-508 · 100 Stat. 1851
1994Amended · Pub. L. 103-414 · 108 Stat. 4290
1998Amended · Pub. L. 105-272 · 112 Stat. 2413

The record establishes that this section was added by Public Law 90–351, title III, § 802, enacted June 19, 1968, and published at 82 Stat. 218. The source credit shows the section has since been amended on numerous occasions—by Public Law 91–358 (1970), Public Law 95–511 (1978), Public Law 98–473 (1984), Public Law 99–508 (1986), Public Law 103–414 (1994), and Public Law 105–272 (1998)—indicating sustained congressional attention to its provisions over three decades. Public Law 90–351 is widely known as the Omnibus Crime Control and Safe Streets Act of 1968, and Title III of that Act is commonly cited as the federal framework governing wiretapping and electronic surveillance. The Act is generally understood to have responded to concerns in the 1960s about organized crime, rising crime rates, and the constitutional limits on electronic surveillance following Supreme Court decisions of that era addressing privacy and Fourth Amendment protections. Title III's procedures, including the application and judicial authorization requirements reflected in this section, are commonly described as an effort to reconcile law enforcement's investigative needs with judicial oversight and statutory privacy safeguards. The specific legislative purpose behind the particular subsections here, and the precise reasons for each subsequent amendment, are not established by the record provided. The source credit identifies only the enacting and amending acts, not the underlying deliberations, and no further inference should be drawn beyond the general historical understanding of Title III's origins.

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