State Surveillance Statutes
50 States, 50 Different State Statutes for Lawful Intercepts
Click here to view a chart listing the state statutes governing real-time lawful electronic surveillance. To understand the chart some background is required.
Just as federal law enforcement agencies (LEAs) such as the Federal Bureau of Investigation and Drug Enforcement Administration investigate federal crimes, state and local LEAs such as the Montana Highway Patrol and the Akron Police Department investigate state-level crimes. Federal investigations are supervised by the federal courts, which are governed by the statutes of the U.S. Congress. State and local investigations are supervised by state courts, which are governed by statutes of the state legislatures. A joint-federal-state investigation is subject to both legal hierarchies.
The federal statutes generally prohibit real-time electronic surveillance as a violation of privacy rights. However, they permit limited exceptions from that rule for LEA investigations. These special provisions strictly regulate a federal court’s power to approve and supervise federal LEA surveillance activity. If an LEA departs from the process it may be barred by the “exclusionary rule” from using the resulting evidence at the suspect’s trial.
Federal law also permits exceptions from the general no-surveillance rule for other purposes. For example, a communication service provider may monitor its network traffic to maintain the network, and a company may initiate an automated response to a customer call with the message, “this call may be recorded for quality assurance.”
There are two basic ways an LEA may monitor a criminal suspect’s electronic communications in real time. One technique is known as a lawful intercept, or “wiretap.” A wiretap enables the LEA to overhear and record the content of a suspect’s telephone calls or view and record the content of a person’s Internet sessions. The other technique is called a pen register and trap and trace, or “pen-trap.” A pen-trap gathers only the non-content profile data, or “metadata,” of the suspect’s phone call or Internet session. Federal law permits both wiretaps and pen-traps.
About half the states have adopted surveillance statutes that track the federal scheme. In particular, they generally prohibit real-time surveillance, permit strictly limited exceptions for LEAs to use wiretaps and pen-traps, impose an exclusionary rule for evidence gathered through improper surveillance, and permit exceptions for certain non-LEA purposes.
Some state criminal codes (e.g. in Illinois and Massachusetts) authorize courts to approve only one type of real-time surveillance (e.g. wiretaps but not pen-traps). Other states (e.g. Kentucky and Michigan) do not let their courts approve either technique. For each state, the chart below cites the code provisions, if any, which authorize LEA wiretaps and/or pen-traps.
In a state that does not permit wiretaps or pen-traps, LEAs are subject to the state’s general prohibition against real-time surveillance. They must therefore solve crimes using other investigative methods. They could, for example, serve a court order on a phone company to disclose a suspect’s past phone bills so they can retrace the person’s past calling activity. Gathering such “historic records” is widely considered less intrusive of privacy than listening to phone conversations or tracking call metadata in real time.