Difference Between Title III and FISA Warrants

In my previous blogpost, I briefly discussed the law regarding the Foreign Intelligence Surveillance Act of 1978 (“FISA” for short) and how the law authorizes certain “wiretaps” to be implemented when there is suspicious activity that could be foreign espionage or terrorism. Today, I write to briefly discuss Title III warrants, which encapsulate the other context where the government seeks permission to listen in on phone calls or to read emails, etc.

Title III Warrants is the colloquial name for warrants that prosecutors seek to investigate criminal activity and to build a case against future defendants in a criminal trial. So if you believe the mafia or narcotics traffickers are using the phone to conduct their illegal activity and you want to listen in and record the conversations between these people, the kind of warrant you want is a Title III warrant. These eavesdropping warrants are far more common than the FISA ones and are frequently done on the local level (whereas FISA is only on the federal level).

The reason they are called Title III warrants is because the federal law that implemented the procedures of how these warrants are to be executed is called the “Title III of the Omnibus Crime Control and Safe Streets Act of 1968.” The acts basically does three things: (i) it prohibits the government (and private parties) from implementing unauthorized and non-consensual interception of communications over the phone, internet, email, etc; (ii) it establishes procedures for how the government can seek a court order to implement a wiretap; and (iii) it regulates the disclosures of intercepted communications.

This law is complicated and the intricacies of how it works is outside the scope of this blogpost. However, the big take away point is that the 4th Amendment to the U.S. Constitution protects private citizens from unreasonable searches and seizures and it requires that prosecutors and police get a warrant from a judge to search a person’s home, etc. The “Title III of the Omnibus Crime Control and Safe Streets Act of 1968” makes it an even bigger deal to try and intercept communications between private citizens, even if the government thinks those communications are conversations concerning illegal activity. So pursuant to the act, if a prosecutor wants to “listen in” on conversations of private citizens, the prosecutor must show the judge several things and must follow a rigid protocol in the interception of the communication. If the prosecutor or the police fail to follow rigid procedures or if they didn’t have probable cause to begin with, then the entire wiretap can be suppressed.

Two examples of factors that can lead to suppression include failures at “attempts at minimization” and failures “to use lesser intrusive means.” For example, suppose a person is arrested and charged with unspecified criminal activity and the prosecutor seeks to use intercepted phone calls. A defense attorney can make a motion to suppress that wiretap for a number of reasons, but the two common examples are (i) that the police failed to take steps to avoid listening in on non-criminal conversations and (ii) the police didn’t really need a wiretap because they could have proven the case against the defendant in other ways.

What this basically means is that the police have a duty to “turn off” the interception whenever there are conversations that have nothing to do with criminal activity. For example, if a mobster is calling his mother to wish her a happy birthday, the cops should turn off the bug and not listen once it’s clear they are not talking about criminal activity. Failure to do this can be grounds to suppress a wire. The other example is in situations in which the police don’t need a wire. Suppose for example that someone is selling crack on the street to anyone who will buy it and the police want to arrest him and charge him with crack-selling. In that situation, the police don’t need a warrant because they can just send in an undercover to buy drugs. In other words, they don’t need to intrude on his privacy rights because he isn’t doing anything to hide the illegal activity. Failure to do this can be another reason to suppress a wire.

As I mentioned, this is not an all-inclusive list. Needless to say, if you have been arrested and charged with a crime and the prosecutor wants to introduce a wire, you should contact an experienced criminal defense attorney immediately.