Section 2511(2)(c) of Title 18 provides that "It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception...."See United States v. White, 401 U.S. 745 (1971). As such, consensual interceptions need not be made under Title III procedures, interception orders under § 2518 are not available, and should not be sought in cases falling within § 2511(2)(c).

The Fourth Amendment to the U.S. Constitution, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986 (18 U.S.C. § 2510, et seq.), and the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801, et seq.) permit government agents, acting with the consent of a party to a communication, to engage in warrantless interceptions of telephone communications, as well as oral and electronic communications. White, supra; United States v. Caceres, 440 U.S. 741 (1979). Similarly, Title III, by its definition of oral communications, permits Federal agents to engage in warrantless interceptions of oral communications when the communicating parties have no justifiable expectation of privacy. 18 U.S.C. § 2510(2). (No similar exception is contained in the definition of wire communications and, therefore, the nonconsensual interception of wire communications violates 18 U.S.C. § 2511 regardless of the communicating parties' expectation of privacy, unless the interceptor complies with the court authorization procedures of Title III or with the provisions of the Foreign Intelligence Surveillance Act of 1978.) Since such interception techniques are particularly effective and reliable, the Department of Justice encourages their use by Federal agents for the purpose of gathering evidence of violations of Federal law, protecting the safety of informants and undercover law enforcement agents, or fulfilling other compelling needs. While these techniques are lawful and helpful, their use is frequently sensitive, so they must remain the subject of careful self-regulation by the agencies employing them.

The Department developed guidelines for the investigative use of consensual monitoring, which were promulgated most recently by the Attorney General on May 30, 2002. The guidelines do not apply to consensual monitoring of telephone conversations or radio transmissions. It was left to the enforcement agencies to develop adequate internal guidelines for the use of those aspects of this investigative tool. The following guidelines cover the investigative use of devices which intercept and record certain consensual verbal conversations where a body transmitter or recorder or a fixed location transmitter or recorder is used during a face-to-face conversation. In certain specified sensitive situations, under the regulations, the agencies must obtain advance written authorization from the Department of Justice. The guidelines on consensual monitoring set forth in the Attorney General's Memorandum of May 30, 2002, on that subject are contained in JM 9-7.302.

[updated September 2004]