When the government terminates a Title III electronic surveillance investigation, it must maintain under seal all of the Title III applications and orders (including affidavits and accompanying material) that were filed in support of the electronic surveillance. See 18 U.S.C. § 2518(8)(b); In re Grand Jury Proceedings, 841 F.2d 1048, 1053 n.9 (11th Cir. 1988) (although 18 U.S.C. § 2518(8)(b) refers only to "applications" and "orders," "applications" is construed to include affidavits and any other related documentation).

The purpose of this sealing requirement is to ensure the integrity of the Title III materials and to protect the privacy rights of those individuals implicated in the Title III investigation. See S.Rep. No. 1097, reprinted in1968 U.S. Code Cong. & Admin. News 2112, 2193-2194. The applications may be unsealed only pursuant to a court order and only upon a showing of good cause under 18 U.S.C. § 2518(8)(b) or in the interest of justice under 18 U.S.C. § 2518(8)(d).

Thus, the government attorney should not attach Title III affidavits or other application material as exhibits to any search warrant affidavit, complaint, indictment, or trial brief. The government attorney may, nevertheless, use information from these materials or the Title III interceptions in documents such as search warrant affidavits, complaints, indictments, and trial briefs. See 18 U.S.C. § 2517(8)(a); 18 U.S.C. § 2517(1) and (2); and S.Rep. No. 1097 at 2188. In using this information, however, the government attorney must use care not to disclose publicly information from the Title III affidavits or interceptions that would either abridge the privacy interests of persons not charged with any crime or jeopardize ongoing investigations.

When Title III materials are sought by defense counsel or other persons and the privacy interests of uncharged persons are implicated by the contents of those materials, the government attorney should seek a protective order pursuant to Rule 16(d)(1), Fed. R. Crim. P., that will forbid public disclosure of the contents of the materials. Likewise, a Rule 16 protective order should be sought to deny or defer discovery of those portions of the affidavits and applications that reveal ongoing investigations when disclosure would jeopardize the success of any such investigation.

[updated January 2020]