Essay on Title III vs Article 13: Regulating Interception of Communications

Explain Title III's scheme for regulating interception of communications with a device. Compare this with Articvle 13 of the Basic Law for the Federal Republic of Germany.

In Title III, the proposition began by ECPA is that engaging in electronic eavesdropping or wiretapping is a federal crime unless provided otherwise. It is also a crime possessing electronic eavesdropping equipment; using or disclosing information acquired through illegal electronic eavesdropping or wiretapping; or disclosing information that is secured through electronic eavesdropping or wiretapping ordered by the court to obstruct Justice (Fishman, 2017). The ban on illegal wiretapping and electronic eavesdropping covering any intentional interception or planning to intercept oral, wire, or electronic communication through the use of mechanical, electronic, or any other device unless such device is expressly uncovered or the conduct specifically authorized is the first among them. For example, one of the parties involved in a conversation consent to the interception, and it occurs in agreement with the statutory requirement (and as is required, it is supervised by the judiciary) or foreign intelligence that gathers interception. The interception is done as part of regulating or collecting communication services, spousal wire papers, and in some cases, specific radio broadcasts (Fishman, 2017).

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There are detailed rules contained in the legal systems of Germany and the United States regulating the domestic law enforcement agencies surveillance of telecommunications. What many would like to know most is the relative levels of such surveillance activities in the U.S. and Germany. Conclusions cannot be drawn from the available statistics concerning the relative amount of surveillance in the two countries, any comparisons that are based on such data sets have proven to be illusory since they measure different phenomenon. Comparing the legal regulation of telecommunication surveillance in the two countries is, however possible despite the absence of a basis for an empirical exploration of telecommunications surveillance relative levels of rules. In both Germany and the United States, there is a well-developed law of information privacy (Schwartz, 2002). In other terms, information privacy in these two countries is a representation of the creation and maintenance of rules structuring the limit of access to and the use of personal data. Some of these rules are in most cases found in the social norms like the idea that limits the sharing of information on the number of your family members with those who are not members or part of your family, which is termed as a gossip. Such rules that touch on information privacy are also found in statutory and constitutional law. However, in this case, the primary concern was to compare the situation in Germany and that in the United States.

Explain the Foreign Intelligence Surveillance Act scheme for regulating the use of electronic surveillance to collect foreign intelligence.

The FISA legislation just like the Title III of the Omnibus Crime Control and Safe Streets Act of 1968, came as a result of the investigations by the congress into federal surveillance activities that are conducted under national security. The congress decided to provide congressional and judicial oversight through FISA to the foreign intelligence surveillance activities while at the same time, it maintained the necessary secrecy to the effective monitoring of the national security threats. The official enactment of FISA took place in 1978 whereby procedures were set out for electronic and physical collection and surveillance of foreign intelligence information. FISA initially address only electronic surveillance, but the amendments have now grown it to address other issues such as the use of physical searches, trap and trace devices, pen registers, and business records.

FISA also established the United States Foreign Intelligence Surveillance Court (FISC). It is a different federal court in the U.S holding nonpublic sessions considering the issuance of search warrants under FISA. The only party that is present in the proceedings is the government.

General Provisions - the amendment was done on FISA enables it to establish procedures for the use of pen registers, authorization of electronic surveillance, business records for the aim of gathering foreign intelligence, and the use of physical searches and trace devices. In Subchapter I of FISA, there are the procedures for conducting foreign intelligence surveillance, and at the same time, it also creates the Foreign Intelligence Surveillance Court (FISC) (Stolz, 2002). FISC must be applied by the Department of Justice in obtaining a warrant that authorizes foreign agents electronic surveillance. For the U.S native targets such as indigenous citizens and corporations, there are some instances where FISA requires heightened requirements.

The procedures, in this case, are quite different as opposed to those in domestic criminal surveillance where the warrants are issued under Title III of the Omnibus Crime Control and Safe Streets Act of 1968. In foreign agent investigations, there is need to develop probable cause by the agent to believe that the surveillance target is a foreign agent or power, and that the primary aim of such investigations is to obtain external intelligence information, and that there are appropriate minimization procedures in place. There is no need to demonstrate that the commission of a crime is imminent by agents. According to FISA, foreign power agents include groups involved in international terrorism, agents of foreign political organizations, and agents of foreign nations (Stolz, 2002). The government is required to destroy all the records in cases where it accidentally intercepts communications in cases where a person has reasonable privacy expectations and wherein law enforcement purposes there would be needed for a warrant. Another instance is when both the intended recipients and the sender are located within the United States. The only exceptional cases where the government cannot destroy such records is when the Attorney general determines that there is a threat of severe bodily harm or death contained in the content.

Outline the Fourth Amendment restrictions and exceptions on the use of video surveillance and tracking devices and why this is important for police officers to understand.

As the use of Global Positioning System GPS gains more recognition as an inexpensive, accurate, and efficient method for monitoring the public movement of suspects in an automobile, there is a continued expansion on the law enforcement on the use of such devices. The warrantless use of the tools has been upheld by federal courts determining that they do not infringe any person's right as per the Fourth Amendment concerning "reasonable expectation of privacy." The Columbian court of appeal recently held that it is unlawful to conduct a warrantless use of GPS devices in the monitoring of vehicles on public roads dor a prolonged period. The holding by the court was based on the belief that the whole of an individual's movement can be revealed if GPS is used for a long time (Myers, 2012).

Although it is now a requirement as per Jones that a legal installation of GPS is put on a vehicle, this ruling comes with expectations just like the case with Gant and Miranda. The most common hope perhaps falls under consent. A consent to install a GPS on a vehicle can be granted by the owner, a non-owner, or any other person demonstrating joint access to control of the car (Myers, 2012). Probable cause or reasonable suspicion of criminal activity is not necessary under the consent exception.

Under Jones is another common exception involving the vehicles entering the United States through an international border. A tracking device can be installed by a federal agent and not local or state officials on cars coming from another country into the U.S, and they can monitor the vehicle for up to 48 hours without any reasonable suspicion or a search warrant. Under the Fourth Amendment, the 48 hours is permissible, according to the U.S Department of Justice based on any constitutional precedent. However, the case agents are required to acquire a search warrant if the search hours are to exceed 48 hours.

The police officers need to understand such regulations so as not to violate the law as they conduct their duties. Lack of knowledge is a significant cause of violation of the law by the police officers, and to avoid this, they need to be undertaken through serious training to equip them with the necessary knowledge on their rights as they go over their duties (Myers, 2012).

Define a judicial interception order. When may police officers use/disclose information obtained under a judicial interception order? Discuss your findings.

A judicial interception order, otherwise known as a lawful interception is the surveillance by legal enforcement agencies of communications that take place between people. Such surveillance includes communication by email, phone, and other electronic means, and only a court order can guarantee them to be undertaken. Lawful interception can also be defined in the following way. It is a security process whereby communications between private citizens or organizations get collected by a service provider and given to law enforcement investigators. Such interceptions are majorly useful in the prevention and aiding of the prosecution of terrorism and crime. The method of collection of evidence and surveillance takes place globally, and most countries have laws that govern the interception and storage of private communications.

Police officers are only allowed to use or disclose information obtained through a lawful interception in certain situations. The law enforcement agents should have excellent reasons for requesting to conduct a lawful interception of communications, and usually, they must have their requests approved by a court of law. The officer may disclose such contents to the extent that the disclosure is appropriate to their official duty proper performance (United States Code, 2011). Any officer authorized to obtain knowledge of the contents of any communications may use such contents such that the use is appropriate to their official duties performance. The content may also be disclosed while the officer in the hold of it is giving testimony under affirmation or oath in a proceeding held under the United States authority or any political subdivision or state thereof.

References

Fishman, C. S. (2017). The Interception of Communications Without a Court Order: Title III, Consent, and the Expectation of Privacy. . John's L. Rev., 51, 41. https://scholarship.law.edu/cgi/viewcontent.cgi?article=1596&context=scholar

Myers, D. (2012). The Warrantless Use of GPS Tracking Devices: Fourth Amendment Protection Restored through Application of an Analytical Framework. Case W. Res. JL Tech. & Internet, 3, 1. http://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1015&context=jolti

Schwartz, P. M. (2002). German and US telecommunications privacy law: legal regulation of domestic law enforcement surveillance. Hastings LJ, 54, 751. https://cloudfront.escholarship.org/dist/prd/content/qt41s8v90m/qt41s8v90m.pdf

Stolz, B. A. (2002). The Foreign Intelligence Surveillance Act of 1978: The Role of Symbolic Politics. Law & Policy, 24(3), 269-298. https://scholar.google.com/scholar_url?url=https://onlinelibrary.wiley.com/doi/abs/10.1111/1467-9930.00136&hl=en&sa=T&oi=gsb&ct=res&cd=0&d=16439683592307532832&ei=EGE3XfrXAcuNmwG7oLPgCw&scisig=AAGBfm0dIwsqu6lwoFxA3_FZKH14RPCSIQ

United States Code (2011). Crimes And criminal Procedures: Wire and electr...