Electronic Surveillance: Valid Evidence or Unconscionable Invasion of Privacy?

October 26, 2012

Anyone who has ever seen a movie about the mob or watched a few episodes of "Law & Order" is probably familiar with the practice of electronic surveillance. That being said, though, Hollywood is focused on a compelling story, not about conveying the laws behind evidence-gathering practices and bringing criminal charges. Due in no small part to the prevalence of electronic surveillance in television shows and movies, most people think that all the police have to do is either set up a hidden camera or plant a "bug" in someone's phone before sitting back and watching the legitimate, admissible evidence pile up.

Obviously, real life does not operate the same way as it does on the big screen. Local, state or federal police cannot just gather electronic evidence on a whim. There are exacting criteria that should be satisfied before surveillance is authorized. Unfortunately, that is not always the case.

One "gray" area of electronic surveillance law is happening all over the country even as you read this. Law enforcement agencies around the country are seeking judicial permission to collate data about cell phone users' location relative to a cell phone tower or satellite. The authority to gather that information comes from a comprehensive federal law, the Electronic Communications Privacy Act of 1986 (ECPA).

What Types of Communications Can Be Collected Under the ECPA?

The standard for signing off on surveillance orders under the ECPA is, ironically enough, the same as the government needs to show to pull over a vehicle or stop a possible suspect on the street: "reasonable suspicion." In the ECPA context, the "reasonable suspicion" standard means that the party seeking the order -- the police or the prosecution -- for surveillance has "reasonable grounds to believe that the information sought is relevant and material to an ongoing criminal investigation."

What does that mean in layman's terms? Essentially, the government entity seeking to gather electronic evidence must affirm that the request is being made because it thinks that the evidence could further an investigation. That's it. Granted, the "reasonable suspicion" standard is only applicable to certain types of electronic surveillance, mainly geographical-type information, (i.e., that a party was within 10 miles from a particular cell phone tower or that an email was sent from a particular computer's digital address) but that seemingly innocuous information could be the cornerstone of the prosecution's case against a defendant.

Content-based surveillance is much more difficult to obtain, but a recent New York Times article shows that cell phone carriers responded to more than 1.3 million requests for electronic information about subscribers from law enforcement agencies around the nation last year alone. Clearly, requests are being granted at a frantic pace, so it is entirely possible that a number of surveillance orders being signed every day are not properly based on a reasonable belief that the information will be material to a criminal investigation.

The laws about electronic surveillance in Pennsylvania and around the country are ever-evolving to keep up with advances in technology. If you or a loved one is facing a criminal investigation or charges where electronic evidence is a factor, seek the guidance of an experienced criminal defense attorney in your area; only someone intimately familiar with the laws about electronic surveillance knows if that evidence has been properly gathered or if it should be deemed inadmissible.

Article provided by Patrick J. Artur & Associates
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