In the days before digitalization, obtaining and monitoring wiretaps was especially labor intensive and expensive. A court order needed to be approved, and once approved; the wiretap required constant monitoring in order to keep non-criminal recordings to a minimum. This involved employing several agents solely to listen for non-criminal calls, and to shut off the wiretap when non-criminal calls occurred. They also had to keep a detailed, handwritten log of the wiretapping in its entirety. This was done to ensure wiretaps adhered to 18U.S.C. 2518(5), which states that government must “minimize the interception of communications not otherwise subject to interception”.
Today, partly because of shrinking budgets and because of digital efficiency, many agencies, including the FBI, rely heavily upon electronic wiretapping and other surveillance programs. And, given the recent flooding of cases using or otherwise relying on wiretaps, it’s presumed that these electronic programs are not being monitored as before. Hence, the government is failing to shrink wiretapped calls as required by law. Most of us know that current surveillance technologies can tap incoming and outgoing calls and text messages from any mobile device or VoIP program. With some systems even allowing the agents to play back recordings, while the communications are being downloaded. But, here as well agents should keep a complete handwritten record. And, cases lacking this should be highly scrutinized.
Electronic wiretapping often fails to undergo rigorous critical examination by the courts, and cases of illegal wiretapping are being filed away unnoticed. One reason for this is because defense attorneys themselves fail to seek proper disclosure of the electronic wiretapping information related to their case. With these electronic monitoring programs and lazy wiretapping procedures continuing unquestioned, the government can say that non-criminal calls are being minimized, even if they are not. So in order to correct for wiretapping infringement, it is vital to ask the agency involved for a full log of the electronic wiretapping. As well as the signed and dated, handwritten log. As per United States v. Rivera, it is up to the government, not the defendant nor the defendant’s attorney, to provide proof illustrating the proper shrinking and minimization of non-criminal calls throughout the wiretapping.
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