Title III contains a provision which allows for the warrantless, emergency interception of wire, oral, and/or electronic communications. Specifically, under 18 U.S.C. § 2518(7), the Attorney General (AG), the Deputy Attorney General (DAG), or the Associate Attorney General (AssocAG) may specially designate a law enforcement or investigative officer to determine whether an emergency situation exists that requires the interception of wire, oral, and/or electronic communications before a court order authorizing such interception can, with due diligence, be obtained. As defined by 18 U.S.C. § 2518(7), an emergency situation involves either: (1) immediate danger of death or serious bodily injury to any person; (2) conspiratorial activities threatening the national security interest; or (3) conspiratorial activities characteristic of organized crime. The only situations which will likely constitute an emergency are those involving an imminent threat to life, i.e., a kidnapping or hostage taking. See United States v. Crouch, 666 F. Supp. 1414 (N.D. Cal. 1987)(wiretap evidence suppressed because there was no imminent threat of death or serious injury); Nabozny v. Marshall, 781 F.2d 83 (6th Cir.)(kidnapping and extortion scenario constituted an emergency situation), cert. denied, 476 U.S. 1161 (1986). The emergency provision also requires that grounds must exist under which an order could be entered (viz., probable cause, necessity, specificity of target location/facility) to authorize the interception. Once the AG, the DAG, or the AssocAG authorizes the law enforcement agency to proceed with the emergency Title III, the government then has forty-eight (48) hours, from the time the authorization was granted, to obtain a court order approving the emergency interception. 18 U.S.C. § 2518(7). The affidavit supporting the application for the order must contain only those facts known to the AG, the DAG, or the AssocAG at the time his or her approval was given, and must be accompanied by a written verification from the requesting agency noting the date and time of the authorization. Failure to obtain the court order within the forty-eight-hour period will render any interceptions obtained during the emergency illegal.

Prior to the agency's contact with the AG, the DAG, or the Associate AG, oral approval to make the request must first be obtained from the Assistant Attorney General (AAG) or a Deputy Assistant Attorney General (DAAG) of the Criminal Division. This approval is facilitated by the Office of Enforcement Operation's Electronic Surveillance Unit, which is the initial contact for the requesting United States Attorney's Office and the requesting agency. Once the Electronic Surveillance Unit attorney briefs and obtains oral approval from the AAG or the DAAG, the attorney notifies the agency representative and the Assistant United States Attorney that the Criminal Division recommends that the emergency authorization proceed. The agency then contacts the AG, the DAG, or the AssocAG and seeks permission to proceed with the emergency Title III.

Please contact ESU prior to submitting a request for emergency authorization. In many situations, expedited review of a standard Title III application will better serve the needs of the investigation than would a emergency authorization.

[revised January 2020]