How The Court Order Process Works
Interview with Marc Hopper, Subsentio LEA Officer
Over the last decade, the needs of law enforcement for electronic surveillance to investigate and apprehend criminals have risen significantly, leading to a 150 percent rise in the number of court orders for lawful intercepts. The spike in court orders has, in turn, placed increased pressure on communications service providers to ensure they are in compliance with the Communications Assistance for Law Enforcement Act (CALEA).
Exactly what is the court order process for lawful intercept, how does it work, what is the CSP’s responsibility – and how does Subsentio help?
It’s a complex legal process. This month’s Squawk Box interviews Subsentio LEA Officer Marc Hopperfor a plain English explanation.
Subsentio: Let’s start by talking about your background and why this job is important.
Hopper: I joined Subsentio in early 2012 following a 27-year career with the FBI as a Supervisory Agent with technical training in lawful intercept. I’ve always taken pride in providing a public service that protects Americans by helping to get “bad guys off the street.” Lawful intercept, together with the system of checks and balances in the law that protect privacy, play a vital role in that process.
As the leader in Trusted Third Party solutions for lawful intercept, Subsentio provides an essential service that safeguards service providers, customers, the public trust and the security of our nation. To me, working here is a good fit both for my expertise and for what I believe in.
Subsentio: We often hear the terms “court order” and “subpoena” used interchangeably. Would you define each and explain the difference?
Hopper: In the lawful intercept arena, a court order is a document initiated by an LEA or prosecutor that has been signed by a sitting judge for the purpose of obtaining information to aid an investigation. The court order may in some instances apply to historical documentation of communications, but more often focuses on pending or future surveillance.
A subpoena is only for historical detail such as billing records and account status. A subpoena is not issued by a judge. It might be issued by a grand jury or in some instances by a federal agency without going through a prosecutor. Subpoenas are common in the investigation of narcotics trafficking and certain other types of crime.
Subsentio: Are there different types of court orders?
Hopper: There are basically three types of court order.
The first: “Pen Registers” that allow access to information about the caller, show who the target called and provide location data on the call.
The second: “Title III” wiretaps for criminal investigations only. These require the intercept to provide call details, the full content of the call, and sometimes the location data for cell phone calls.
And the third: a court order issued under the authority of the Foreign Intelligence Surveillance Act – or “FISA” – to investigate potential acts of terrorism. FISA court orders are typically handled by the FBI and can apply to both call detail records and full content intercepts. Just remember that whatever the type of court order, it must be lawfully authorized to ensure no erosion of privacy.
Subsentio: What is the role of a communications service provider’s CALEA Compliance Plan in the court order process?
Hopper: The Compliance Plan spells out who is responsible for managing the lawful intercept process within the CSP. Responsibility for this function can include a general counsel, a security department or trained staff such as engineers, and a single point of contact for Subsentio and the LEA. The plan also details the steps to take, in proper sequence, on receiving a court order.
Subsentio: Should a CSP create its own compliance plan, and if so, how do they go about that?
Hopper: Yes, Subsentio’s policy is that each CSP should create its CALEA Compliance Plan, tailored to the needs of their own company. Because each carrier’s network may be slightly different, there is no “cookie cutter” plan that meets all needs. Subsentio doesn’t create compliance plans, but we can provide advice. In fact, our Compliance Manual provides a good checklist of what to include in the Plan.
Subsentio: Does any government agency need to see the plan?
Hopper: Indeed they do. It is the responsibility of every CSP to ensure that they file their CALEA Compliance Plan with the Federal Communications Commission (FCC).
Subsentio: How does a CSP determine whether a court order is facially valid?
Hopper: Every court must fulfill eight requirements. [See Sidebar – “The Eight Requirements”]
If Subsentio’s attorneys find an issue with a court order we will work with the LEA to come to a common understanding. Sometimes this process requires a revision to a court order because the issuing authority was not aware of a recent change in state or local laws.
Ensuring the validity of the court order is extremely important. If the court order is not correctly done, then the evidence gathered may not be admissible in court.
Subsentio: How does an LEA know where to deliver a court order?
Hopper: To find the correct contact within the CSP, the LEA can reach out to the FBI’s Carrier Outreach Program located in Quantico, Virginia. This program serves as a clearing house for details on who the LEA should contact with a court order. The contact person may be someone within the CSP who is charged with that responsibility, or, when Subsentio is serving as the trusted third party, it may be us.
Before the court order is sent, it is common practice for the LEA to reach out to the CSP and ask if specific wording is required in the court order. LEAs usually accommodate such requests in order to ensure that a court order is correct in every detail beforehand.
When the court order is ready, the delivery steps take place. One of two things will happen.
The LEA can send the court order directly to Subsentio – many LEAs have already worked with Subsentio before and know us. Or the court order may go to the designated contact person at the CSP. Here, too, when Subsentio is the trusted third party for that CSP, the carrier hands off the court order to us.
Subsentio: Once the court order is deemed valid, how do you proceed?
Hopper: There are two pieces of paperwork needed to begin the surveillance process: The Service Authorization Form and what the Law Enforcement Request (LER) form, commonly called the CALEA Worksheet.
The Service Authorization provides the go-ahead to Subsentio to perform the lawful intercept. This form includes the number of the target, taken from the court order.
The LER or CALEA Worksheet spells out other information that Subsentio will need to do this job: the name of the LEA’s case agent, the LEA’s technical agent, and where the LEA wants the information from the lawful intercept to be delivered.
Subsentio: Speaking of delivery, describe how data on the target gets to the LEA.
Hopper: The destination can be any single law enforcement office location specified by the LEA, and the CSP only has to design one circuit for delivering the information. If Subsentio has a history of working with that particular LEA, then we already have the circuits ready. If not, then creating a new circuit takes only one hour in most instances. For security purposes, we use encrypted virtual private network circuits calls VPNs.
And, of course, for Subsentio clients the essential technology solution for gathering the target’s data, whether by pen register, Title III wiretap or FISA court orders, is already in place. That solution, typically a mediation device or probe, is fully tested and regularly maintained to ensure that it is 100 percent functional and ready to go when the need arises.
Subsentio: Switching gears, FISA is much in the news lately. Is there any difference between the way FISA dockets are handled?
Hopper: There are differences. FISA dockets are usually hand-delivered in person by the LEA. Whomever receives the docket, whether Subsentio or the CSP, is allowed to take just the minimal amount of information from the docket required to set up the lawful intercept. Neither the CSP nor Subsentio may keep a copy. The docket itself is filed by the authorizing government agency.
Most FISA dockets are delivered directly to Subsentio by the LEAs. The reason for that: Often there is no way for a CSP, which may be located anywhere in the country, to securely deliver the docket to us so we can get to work on implementing the court order. Individuals handling FISA court orders must have a security clearance – a requirement Subsentio meets but which most CSP personnel do not. When we receive a FISA docket, Subsentio notifies the CSP involved, then delivers the target information in a secure way that cannot be reconstructed or breached by an unauthorized party.
Subsentio: Are there ever extenuating circumstances – such as emergencies – where you are allowed to speed up or bypass the usual court order process?
Hopper: In the event of an emergency, such as a kidnapping or murder threat, the LEA can proceed under what are called “exigent circumstances.” At such times we pull out all the stops. If need be, we or the appropriate law enforcement agency can talk to a judge and take immediate action. A judge might even dictate a court order over the phone. Authority for acting under exigent circumstances lasts 48 hours. After that, the LEA must obtain a court order through the usual process.
Subsentio: Do you have an example of an exigent circumstance?
Hopper: We once received a call from an LEA about the abduction of a 10-month old child. We got the target number and were up on that line in 17 minutes. Within an hour we identified the suspect and local law enforcement officials recovered the child unharmed.
Such instances are rarely publicized, but they are proud moments for us all. Even then, however, rules are still rules: After all is said and done, we go back and do all the paperwork associated with a normal court order so that there is a detailed record of the event.
Subsentio: Thanks, Marc. We appreciate your straight talk and invaluable insights.