To understand the core concepts of the legislative scheme of Title III, one must appreciate the history of this legislation and the goals of Congress in enacting this comprehensive law. By enacting Title III in 1968, Congress prohibited private citizens from using certain electronic surveillance techniques. Congress exempted law enforcement from this prohibition, but required compliance with explicit directives that controlled the circumstances under which law enforcement's use of electronic surveillance would be permitted. Many of the restrictions upon the use of electronic surveillance by law enforcement agents were enacted in recognition of the strictures against unlawful searches and seizures contained in the Fourth Amendment to the United States Constitution. See, e.g., Katz v. United States, 389 U.S. 347 (1967). Still, several of Title III's provisions are more restrictive than what is required by the Fourth Amendment. At the same time, Congress preempted State law in this area, and mandated that States that sought to enact electronic surveillance laws would have to make their laws at least as restrictive as the Federal law.

One of Title III's most restrictive provisions is the requirement that Federal investigative agencies submit requests for the use of certain types of electronic surveillance (primarily the non-consensual interception of wire and oral communications) to the Department of Justice for review and approval before applications for such interception may be submitted to a court of competent jurisdiction for an order authorizing the interception. Specifically, in 18 U.S.C. § 2516(1), Title III explicitly assigns such review and approval powers to the Attorney General, but allows the Attorney General to delegate this review and approval authority to a limited number of high-level Justice Department officials, including Deputy Assistant Attorneys General for the Criminal Division ("DAAGs"). The DAAGs review and approve or deny proposed applications to conduct "wiretaps" (to intercept wire [telephone] communications, 18 U.S.C. § 2510(1)) and to install and monitor "bugs" (the use of microphones to intercept oral [face-to-face] communications, 18 U.S.C. § 2510(2)). It should be noted that only those crimes enumerated in 18 U.S.C. § 2516(1) may be investigated through the interception of wire or oral communications. On those rare occasions when the government seeks to intercept oral or wire communications within premises or over a facility that cannot be identified with any particularity, and a "roving" interception of wire or oral communications is therefore being requested, the Assistant Attorney General or the Acting Assistant Attorney General for the Criminal Division must be the one to review and approve or deny the application. (See the roving interception provision at 18 U.S.C. § 2518(11), discussed at JM 9-7.111.)

In 1986, Congress amended Title III by enacting the Electronic Communications Privacy Act of 1986. Specifically, Congress added "electronic communications" as a new category of communications whose interception is covered by Title III. Electronic communications are non-voice communications made over a network in or affecting interstate commerce, and include text messages, electronic mail ("email"), facsimiles ("faxes"), other non-voice Internet traffic, and communications over digital-display pagers. See 18 U.S.C. § 2510(12).

Although the 1986 amendments permit any government attorney to authorize the making of an application to a Federal court to intercept electronic communications to investigate any Federal felony (18 U.S.C. § 2516(3)), the Department of Justice and Congress agreed informally at the time of ECPA's enactment that, for a three-year period, Department approval would nonetheless be required before applications could be submitted to a court to conduct interceptions of electronic communications. After that period, the Department rescinded the prior approval requirement for the interception of electronic communications over digital-display paging devices, but continued the need for Department approval prior to application to the court for the interception of any other type of electronic communications, including text messages, faxes, emails, and other non-voice communications over a computer. Applications to the court for authorization to intercept electronic communications over digital-display pagers may be made based solely upon the authorization of a United States Attorney. See 18 U.S.C. § 2516(3).

Because there are severe penalties for the improper and/or unlawful use and disclosure of electronic surveillance evidence, including criminal, civil, and administrative sanctions, as well as the suppression of evidence, it is essential that Federal prosecutors and law enforcement agents clearly understand when Departmental review and approval are required, and what such a process entails. See 18 U.S.C. §§ 2511, 2515, 2518(10), and 2520.

[revised January 2020]