State Lawful Intercept Statutes
A federal order and a state order arrive on the same network, but they come from different courts under different statutes. About half the states track the federal scheme. The rest do not — and a few authorize neither wiretaps nor pen-traps at all.
State Statutes for Lawful Intercept — a fifty-state reference
Just as federal law enforcement agencies investigate federal crimes, state and local agencies investigate state-level crimes. Federal investigations are supervised by the federal courts under the statutes of Congress; state and local investigations are supervised by state courts under the statutes of the state legislatures. A joint federal–state investigation is subject to both.
The federal statutes generally prohibit real-time electronic surveillance as a violation of privacy, with strictly regulated exceptions for law enforcement; an agency that departs from the process may be barred by the exclusionary rule from using the evidence. There are two basic ways an agency may monitor a suspect's communications in real time: a lawful intercept, or wiretap, which captures content; and a pen register and trap-and-trace ("pen-trap"), which gathers only the non-content signaling. Federal law permits both.
About half the states have adopted surveillance statutes that track the federal scheme. Some state criminal codes authorize courts to approve only one type of real-time surveillance; others do not let their courts approve either. In a state that permits neither, agencies solve crimes by other means — for example, a court order to a provider for a suspect's historical records, which is widely considered less intrusive than real-time monitoring. The compilation below lists the statute for each state.
The parts that matter to a provider.
Two courts, two statutes
A state order is valid under its own state's statute, not the federal one. Validation starts by identifying which statute the order was issued under and what that statute allows.
Wiretap and pen-trap
Content versus signaling. Some states permit both, some one, some neither. The order must match what the issuing state's law authorizes.
The exclusionary rule
Evidence gathered outside the statutory process may be excluded at trial — which is why an order with an error is returned for correction rather than implemented.
Historical records instead
Where real-time surveillance is unavailable, agencies turn to stored records under the state equivalent of the Stored Communications Act — the records-production side of the same desk.
Does this apply to you?
Every provider that operates in more than one state, and every provider served by a state or local agency. Subsentio validates state orders against the issuing state's statute before anything is provisioned.
State statutes for lawful intercept
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Other primary documents.
CALEA Act of 1994
What CALEA (1994) requires, section by section — definitions, capability, security, safe harbor, enforcement — with the full text to download.
CALEA Broadband Coverage Order (2005)
The 2005 FCC order that extended CALEA to facilities-based broadband and interconnected VoIP providers — what it decided, why, and what it left open.
CALEA Capability Order (2006)
The 2006 FCC order that set the May 14, 2007 deadline, permitted Trusted Third Parties, required SSI filings and monitoring reports, and settled who pays.
ECPA (1986)
What ECPA did: extended the Wiretap Act to electronic communications and created the Pen Register Act and the Stored Communications Act — the tiers of process.
The Wiretap Act (1968)
The 1968 statute behind every Title III order: a general prohibition on intercepting communications, with a court-supervised exception on probable cause.
FISA (1978)
What FISA authorizes — foreign-intelligence surveillance of foreign powers and their agents under the FISA court — and what a FISA order means for a carrier.