I. DEFINITIONS

The term “oral” means in-person, non-wire or non-electronic communication.

The term "agency" means all of the Executive Branch departments and agencies, and specifically includes United States Attorneys' Offices which utilize their own investigators, and the Offices of the Inspectors General.

The terms "interception" and "monitoring" mean the aural acquisition of oral communications by use of an electronic, mechanical, or other device. Cf. 18 U.S.C. §2510(4).

The term "public official" means an official of any public entity of government, including special districts, as well as all federal, state, county, and municipal governmental units.

The term “federal judge” means Article III and Article IV judges, and the judges of the following Article I courts: the D.C. judiciary, the U.S. Court of Appeals for the Armed Forces, the U.S. Court of Appeals for Veterans Claims, U.S. Bankruptcy Courts, U.S. Tax Courts and the U.S. Court of Federal Claims.

II. NEED FOR WRITTEN AUTHORIZATION

1. A. Investigations Where Written Department of Justice Approval is Required
   1. 1. A request for authorization to monitor an oral communication without the consent of all parties to the communication must be approved in writing by a Deputy Assistant Attorney General, Criminal Division, U.S. Department of Justice, when it is known that the monitoring concerns an investigation into an allegation of misconduct committed by a Member of Congress, a federal judge, a member of the Executive Branch at Executive Level IV or above (as defined in 5 U.S.C. §§ 5312-5315), or a person who has served in such capacity within the previous two years. In all other investigations involving a Member of Congress or congressional staff, prosecutors must consult with the Public Integrity Section, Criminal Division, U.S. Department of Justice. See JM 9-85.100.
   2. 2. A request for authorization to monitor an oral communication without the consent of all parties to the communication must be approved in writing by the Director of the Office of Enforcement Operations, Criminal Division, U.S. Department of Justice, when it is known that:

(a) the monitoring relates to an investigation of the Governor, Lieutenant Governor, or Attorney General of any State or Territory, or a judge or justice of the highest court of any State or Territory, and the offense investigated is one involving bribery, conflict of interest, or extortion relating to the performance of his or her official duties;

(b) any party to the communication is a member of the diplomatic corps of a foreign country;

(c) any party to the communication is a current or former participant in the Federal Witness Security Program and that fact is known to the agency involved or its officers;

(d) the consenting or nonconsenting person is in the custody of the Bureau of Prisons or the United States Marshals Service; or

(e) the Attorney General, Deputy Attorney General, Associate Attorney General, any Assistant Attorney General, or the United States Attorney in the district where an investigation is being conducted has requested the investigating agency to obtain prior written consent before conducting consensual monitoring in a specific investigation.

In all other cases, approval of consensual monitoring will be in accordance with the procedures set forth in part V. below.

1. B. Monitoring Not Within Scope of This Section. Even if the interception falls within one of the six categories above, the procedures and rules in this Section do not apply to:

   (1) extraterritorial interceptions;

   (2) foreign intelligence interceptions, including interceptions pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. §1801, et seq.);

   (3) interceptions pursuant to the court-authorization procedures of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended (18 U.S.C. §2510, et seq.);

   (4) routine Bureau of Prisons (BOP) monitoring of oral communications that are not attended by a justifiable expectation of privacy, to include monitoring of conversations on existing BOP systems;[1]

   (5) interceptions of radio communications;

   (6) interceptions of telephone communications;

   (7) monitoring of communications during an interview conducted by a law enforcement officer in the course of his or her official duties, provided that the law enforcement officer consented to the monitoring; and

   (8) monitoring of communications during a Group One Undercover Operation approved by the Criminal Undercover Operations Review Committee (CUORC), pursuant to The Attorney General’s Guidelines on Federal Bureau of Investigation Undercover Operations, § IV.C(2).

   1 Monitoring of wire and electronic communications over contraband telephones inside federal prisons must be authorized pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended (18 U.S.C. §2510, et seq.). See Part II.B.(3) above.

III. AUTHORIZATION PROCEDURES AND RULES

1. A. Required Information. The following information must be set forth in any request to monitor an oral communication pursuant to part II.A.:

   (1) Reasons for the Monitoring. The request must contain a reasonably detailed statement of the background and need for the monitoring.

   (2) Offense. If the monitoring is for investigative purposes, the request must include a citation to the principal criminal statute involved.

   (3) Danger. If the monitoring is intended to provide protection to the consenting party, the request must explain the nature of the danger to the consenting party.

   (4) Location of Devices. The request must state where the monitoring device will be hidden: on the person, in personal effects, or in a fixed location.

   (5) Location of Monitoring. The request must specify the location and primary judicial district where the monitoring will take place. A monitoring authorization is not restricted to the original district. However, if the location of monitoring changes, notice should be promptly given to the approving official. The record maintained on the request should reflect the location change.

   (6) Time. The request must state the length of time needed for the monitoring. Initially, an authorization may be granted for up to 90 days from the day the monitoring is scheduled to begin. If there is the need for continued monitoring, extensions for additional periods of up to 90 days may be granted. In special cases (e.g., "fencing" operations run by law enforcement agents or long-term investigations that are closely supervised by the Department's Criminal Division), authorization for up to 180 days may be granted with similar extensions.

   (7) Names. The request must give the names of persons, if known, whose communications the department or agency expects to monitor and the relation of such persons to the matter under investigation or to the need for the monitoring.

   (8) Attorney Advice. The request must state that the facts of the surveillance have been discussed with the United States Attorney, an Assistant United States Attorney, or the previously designated Department of Justice attorney responsible for a particular investigation, and that such attorney advises that the use of consensual monitoring is appropriate under this Section (including the date of such advice). The attorney must also advise that the use of consensual monitoring under the facts of the investigation does not raise the issue of entrapment. Such statements may be made orally. If the attorneys described above cannot provide the advice for reasons unrelated to the legality or propriety of the consensual monitoring, the advice must be sought and obtained from an attorney of the Criminal Division of the Department of Justice designated by the Assistant Attorney General in charge of that Division. Before providing such advice, a designated Criminal Division attorney shall notify the appropriate United States Attorney or other attorney who would otherwise be authorized to provide the required advice under this paragraph.

   (9) Renewals. A request for renewal authority to monitor oral communications must contain all the information required for an initial request. The renewal request must also refer to all previous authorizations and explain why an additional authorization is needed, as well as provide an updated statement that the attorney advice required under paragraph (8) has been obtained in connection with the proposed renewal.

2. B. Written Requests. Unless a request is of an emergency nature, it must be in written form and contain all of the information set forth above. Emergency requests in cases in which written Department of Justice approval is required may be made by telephone to the Director or an Associate Director of the Criminal Division's Office of Enforcement Operations, or to the Assistant Attorney General, the Acting Assistant Attorney General, or a Deputy Assistant Attorney General for the Criminal Division, and should later be reduced to writing and submitted to the appropriate headquarters official as soon as practicable after authorization has been obtained. An appropriate headquarters filing system is to be maintained for consensual monitoring requests that have been received and approved in this manner. Oral requests must include all the information required for written requests as set forth above.
3. C. Authorization. Authority to engage in consensual monitoring in situations set forth in part II.A. of this Section may be given by the Attorney General, the Deputy Attorney General, the Associate Attorney General, the Assistant Attorney General or Acting Assistant Attorney General in charge of the Criminal Division, a Deputy Assistant Attorney General in the Criminal Division, or the Director or an Associate Director of the Criminal Division's Office of Enforcement Operations. Requests for authorization will normally be submitted by the headquarters of the department or agency requesting the consensual monitoring to the Office of Enforcement Operations for review.
4. D. Emergency Monitoring. If an emergency situation requires consensual monitoring at a time when none of the individuals identified in part III.B. above cannot be reached, the authorization may be given by the head of the responsible department or agency, or his or her designee. Such department or agency must then notify the Office of Enforcement Operations as soon as practicable after the emergency monitoring is authorized, but not later than three working days after the emergency authorization.

   The notification shall explain the emergency and shall contain all other items required for a nonemergency request for authorization set forth in part III.A. above.

IV. SPECIAL LIMITATIONS

When a communicating party consents to the monitoring of his or her oral communications, the monitoring device may be concealed on his or her person, in personal effects, or in a fixed location. Each department and agency engaging in such consensual monitoring must ensure that the consenting party will be present at all times when the device is operating.

In addition, each department and agency must ensure: (1) that no agent or person cooperating with the department or agency trespasses while installing a device in a fixed location, unless that agent or person is acting pursuant to a court order that authorizes the entry and/or trespass, and (2) that as long as the device is installed in the fixed location, the premises remain under the control of the government or of the consenting party. See United States v. Yonn, 702 F.2d 1341, 1347 (11th Cir.), cert denied, 464 U.S. 917 (1983) (rejecting the First Circuit's holding in United States v. Padilla 520 F.2d 526 (1st Cir. 1975), and approving use of fixed monitoring devices that are activated only when the consenting party is present). But see United States v. Shabazz, 883 F.Supp. 422 (D.Minn. 1995).

Outside the scope of this Memorandum are interceptions of oral, nonwire communications when no party to the communication has consented. To be lawful, such interceptions generally may take place only when no party to the communication has a justifiable expectation of privacy—for example, burglars, while committing a burglary, have no justifiable expectation of privacy. Cf. United States v. Pui Kan Lam, 483 F.2d 1202 (2d. Cir. 1973), cert. denied, 415 U.S. 984 (1974) —or when authorization to intercept such communications has been obtained pursuant to Title III or the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. § 2510, et seq.) or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. § 1801, et seq. Each department or agency must ensure that no communication of any party who has a justifiable expectation of privacy is intercepted unless proper authorization has been obtained.

V. PROCEDURES FOR CONSENSUAL MONITORING WHERE NO WRITTEN APPROVAL IS REQUIRED

Prior to receiving approval for consensual monitoring from the head of the department or agency or his or her designee, a representative of the department or agency must obtain advice that the consensual monitoring is both legal and appropriate from the United States Attorney, an Assistant United States Attorney, or the Department of Justice attorney responsible for a particular investigation. The advice may be obtained orally from the attorney. If the attorneys described above cannot provide the advice for reasons unrelated to the legality or propriety of the consensual monitoring, the advice must be sought and obtained from an attorney of the Criminal Division of the Department of Justice designated by the Assistant Attorney General in charge of that Division. Before providing such advice, the designated Criminal Division attorney shall notify the appropriate United States Attorney or other attorney who would otherwise be authorized to provide the required advice under this paragraph.

Even in cases in which no written authorization is required because they do not involve the sensitive circumstances discussed above, each agency must continue to maintain internal procedures for supervising, monitoring, and approving all consensual monitoring of oral communications. Approval for consensual monitoring must come from the head of the agency or his or her designee. Any designee should be a high-ranking supervisory official at headquarters level, but in the case of the FBI may be a Special Agent in Charge or Assistant Special Agent in Charge.

Similarly, each department or agency shall establish procedures for emergency authorizations in cases involving non-sensitive circumstances similar to those that apply with regard to cases that involve the sensitive circumstances described in part III.D., including obtaining follow-up advice of an appropriate attorney as set forth above concerning the legality and propriety of the consensual monitoring.

Records are to be maintained by the involved departments or agencies for each consensual monitoring that they have conducted. These records are to include the information set forth in part III.A. above.

VI. GENERAL LIMITATIONS

This Section relates solely to the subject of consensual monitoring of oral communications except where otherwise indicated. This Section does not alter or supersede any current policies or directives relating to the subject of obtaining necessary approval for engaging in nonconsensual electronic surveillance or any other form of nonconsensual interception.

[cited in JM 9-7.301]

[updated June 2018]