Electronic Surveillance

Fundamentals of Procedural Law by Adam J. McKee

Procedural law sets the roadmap for the legal process. It outlines the steps and rules to be followed in both civil and criminal legal actions. Procedural law ensures fairness, consistency, and justice. One key area where procedural law comes into play is electronic surveillance.

Introduction to Electronic Surveillance

Electronic surveillance involves using electronic devices to monitor someone’s activities. This can include wiretapping phone calls, recording video footage, or tracking internet activity. But, the Fourth Amendment of the U.S. Constitution protects individuals from unreasonable searches and seizures. This protection extends to electronic surveillance, and law enforcement often needs a warrant to conduct it.

Significant Supreme Court Cases

Katz v. United States (1967)

In this case, federal agents attached a listening device to a public phone booth used by Katz. They did this without a warrant and collected evidence of illegal gambling. The legal issue was whether this wiretapping violated Katz’s Fourth Amendment rights.

The Supreme Court decided in favor of Katz. They held that the Fourth Amendment protects people, not places. Thus, Katz had a reasonable expectation of privacy when he was in the phone booth, even if it was public. The agents needed a warrant to conduct the wiretap (Katz v. United States, 1967).

Kyllo v. United States (2001)

In Kyllo, law enforcement used a thermal imaging device to scan Kyllo’s house from outside. They were looking for the high-intensity lamps used for growing marijuana indoors, again without a warrant. The legal question was whether using thermal imaging in this way violated the Fourth Amendment.

The Supreme Court decided it did violate the Fourth Amendment. The court reasoned that using a device not commonly available to the public to gather details about the home that would otherwise be unknowable constitutes a search. Such a search requires a warrant (Kyllo v. United States, 2001).

Carpenter v. United States (2018)

In Carpenter, law enforcement acquired Carpenter’s cell phone location data without a warrant. This data detailed his movements over an extended period. The legal issue was whether collecting this data without a warrant violated the Fourth Amendment.

The Supreme Court held it did violate the Fourth Amendment. The court explained that individuals have a reasonable expectation of privacy in their physical movements over time. Therefore, collecting long-term cell phone records without a warrant infringes on this expectation (Carpenter v. United States, 2018).

Wiretapping Laws: A Statutory Perspective

Wiretapping is a specific kind of electronic surveillance where law enforcement intercepts and records telephone communications. Unlike most areas of procedural law, where Supreme Court cases heavily influence the rules, wiretapping law primarily comes from statutes. These are laws passed by the U.S. Congress or state legislatures.

Federal Wiretap Act (Title III)

The primary federal law regulating wiretapping is Title III of the Omnibus Crime Control and Safe Streets Act of 1968, often referred to as the “Federal Wiretap Act.” This statute sets strict limits on when and how the government can use wiretapping in criminal investigations (18 U.S.C. §§ 2510-2522).

Under Title III, the government needs a court order to conduct wiretapping. To obtain this, they must show probable cause to believe that a specific crime has been, is being, or will be committed and that the wiretap will likely provide evidence of this crime. Additionally, the government must show that other methods of investigation have been tried and failed, or are unlikely to succeed if tried (18 U.S.C. § 2518).

Electronic Communications Privacy Act (ECPA)

In 1986, Congress passed the Electronic Communications Privacy Act (ECPA) to extend the protections of Title III to electronic communications, such as emails (18 U.S.C. §§ 2510-2523). Like Title III, the ECPA requires the government to obtain a court order to intercept electronic communications.

State Wiretapping Laws

Many states also have their own wiretapping laws, some of which provide more protection than federal law. These state laws vary significantly. For example, some states require the consent of all parties to a conversation before it can be recorded. Other states only require the consent of one party.

In conclusion, while Supreme Court cases have influenced electronic surveillance law broadly, wiretapping law primarily comes from federal and state statutes. These laws set out when and how the government can use wiretapping as a tool in criminal investigations.


In summary, procedural law plays a vital role in determining how legal proceedings, including electronic surveillance and wiretapping, are conducted. The principles set forth by landmark Supreme Court cases, such as Katz v. United States, Kyllo v. United States, and Carpenter v. United States, have shaped our understanding of the Fourth Amendment’s application to electronic surveillance. These rulings maintain that, in most cases, electronic surveillance requires a warrant due to the constitutional right to privacy.

However, when it comes to wiretapping, the governing laws are primarily statutory rather than based on court cases. The Federal Wiretap Act, or Title III, and the Electronic Communications Privacy Act (ECPA), both federal laws, strictly regulate when and how the government can engage in wiretapping.

State laws also play a role and can offer more stringent protections against wiretapping. Understanding these statutory laws is key to appreciating how wiretapping fits within the broader scope of electronic surveillance and procedural law.

Modification History

File Created:  08/08/2018

Last Modified:  07/17/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

Open Education Resource--Quality Master Source License


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