State and Federal Laws Pertaining to Electronic Surveillance
The legal climate surrounding wiretapping and electronic surveillance involves both federal statutes and state laws. Wiretapping is the practice of accessing telephone transmissions through the signal itself. Electronic eavesdropping involves using a device to monitor or "eavesdrop" on conversations and potentially record these communications.
At the federal level, the Foreign Intelligence Surveillance Act ("FISA") of 1978, the Electronic Communications Privacy Act of 1986 ("ECPA"), and the Stored Communications Act ("SCA") of 1986, are the most prominent pieces of legislation governing this area of law. Recently, on December 28, 2012, Congress approved a bill that extended FISA to allow government agencies the authority to continue surveillance of suspected foreign terrorists and spies. The bill grants agencies the power to monitor phone calls and emails oversees without a court order. However, the bill does not extend to American citizens, whether they are in the United States or abroad. In order to initiate surveillance of American citizens, government authorities must still obtain a warrant from a court of eleven U.S. district court judges. Dean Boyd, a representative of the Justice Department, explained that prolonging FISA would also allow the government to foresee and prevent cyber terrorist attacks, such as attacks on American computer networks.
In 1994, Congress also passed the Digital Telephony Act, under Title 18 U.S.C. §§ 2510-2522. This federal statute provides assurance for law enforcement officials that they will be permitted to access communications involving new digital technology. These communications include voice, text, and data transmissions. In the changing face of technology, this law provides legislatures with some flexibility to keep up with constant developments in the different communication mediums.
At the state level, statutes vary among the various jurisdictions. Under California Penal Code § 632, law enforcement agencies are permitted to utilize wiretaps in cases involving murder, solicitation to commit murder, aggravated kidnapping, crimes involving bombings, and conspiracy to commit any of these offenses. However, in all of these investigations, the agencies must still obtain the consent of all the parties to a communication before they are permitted to record or eavesdrop. Violating wiretapping laws in California may subject a party to both criminal and civil liability. Under California Penal Code § 637.2, a party may file a civil lawsuit for damages sustained under an illegal wiretap. In Washington D.C., the wiretapping law only requires consent from one party to the recorded conversation. According to District of Columbia Code § 23-542, a party to a conversation (including law enforcement agencies) may record the conversation, so long as they have consent from at least one of the parties to the conversation.
In November 2012, Google issued a study that suggests that the government is steadily increasing requests for user data. Meanwhile, the Federal Bureau of Investigation has voiced requests for new Internet surveillance laws in light of technological advances which limit surveillance capacities under current legislation.
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