Fifty states, fifty statutes.
Just as federal agencies investigate federal crimes under statutes of Congress, state and local agencies investigate state crimes under statutes of fifty legislatures. The orders arrive on the same network. They do not come from the same law.
Federal courts, state courts, and both at once.
Federal investigations are supervised by the federal courts, which are governed by the statutes of Congress. State and local investigations — the Montana Highway Patrol, the Akron Police Department — are supervised by state courts, governed by 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, permit strictly limited exceptions for law-enforcement investigations, and regulate closely a court's power to approve and supervise them. If an agency departs from the process, the exclusionary rule may bar it from using the evidence at trial. Federal law also permits exceptions for other purposes — a provider monitoring its own traffic to maintain the network; a company recording a customer call with notice.
Wiretap
A lawful intercept: the agency overhears and records the content of a suspect's calls, or views and records the content of a suspect's Internet sessions.
Pen-trap
A pen register and trap-and-trace: only the non-content profile data — the metadata — of the suspect's calls or sessions.
Historical records
Where neither is available, a court order to a provider for a suspect's past records — widely considered less intrusive than listening in or tracking metadata in real time.
About half track the federal scheme. The rest do not.
About half the states have adopted surveillance statutes that track the federal one: they generally prohibit real-time surveillance, permit strictly limited exceptions for wiretaps and pen-traps, impose an exclusionary rule for improperly gathered evidence, and permit exceptions for certain non-law-enforcement purposes.
Some state criminal codes authorize courts to approve only one type of real-time surveillance — wiretaps but not pen-traps, or the reverse. Others do not let their courts approve either. In a state that permits neither, agencies are subject to the state's general prohibition on real-time surveillance and must solve crimes by other means: for example, serving an order on a provider for a suspect's past records to retrace calling activity. The fifty-state reference lists the statute for each state.
State orders, answered.
Does a state court order have to meet federal requirements?
It has to meet the requirements of the statute it was issued under — the issuing state's. State and local investigations are supervised by state courts under statutes of the state legislature. A joint federal–state investigation is subject to both legal hierarchies. Validation starts by identifying which statute the order invokes and what that statute permits.
Do all states allow wiretaps?
No. About half the states have adopted surveillance statutes that track the federal scheme and permit both wiretaps and pen-traps under strict limits. Some state criminal codes authorize courts to approve only one type of real-time surveillance; a few do not let their courts approve either. In those states, agencies use other methods — including historical records under the state equivalent of the Stored Communications Act.
What is the exclusionary rule and why does it matter to a provider?
If an agency departs from the statutory process, it may be barred from using the resulting evidence at trial. That is why an order with an error is returned for correction rather than implemented as written: the evidence would be at risk, and the provider that implemented a defective order would carry the consequences.
What non-law-enforcement exceptions exist?
Federal law permits, for example, a provider to monitor its own network traffic to maintain the network, and a business to record calls with notice ("this call may be recorded for quality assurance"). Most states that track the federal scheme carry similar exceptions.
What does Subsentio do with a state order?
The same thing it does with a federal one: validates it against the statute it was issued under, returns it with the deficiencies stated if it is defective, and — if it is valid — provisions, delivers, records and terminates it exactly as the order specifies.