Every year the Administrative Office of the United States Courts publishes, as it must, a report of wiretap orders issued by federal and state judges during the preceding year. This year the number went down, a cause for concern, because it means that more and more electronic surveillance is taking place outside the protections of the Wiretap Act.
Looking at this chart, it is apparent that the federal government began losing interest in applying for wiretap orders in 2004. State interest began to decline in 2008. Under-reporting might partially explain the drop in wiretap orders. But I suspect that the numbers are dropping because listening in on a telephone call is becoming less valuable to law enforcement officials than poring through the mountains of electronic data we all throw off as part of our day-to-day activities.
A wiretap order can be difficult to obtain. Law enforcement officials must present evidence to a judge indicating probable cause to believe that the wiretap will turn up evidence of a wiretap-eligible offense; wiretap orders contain minimization requirements and they typically expire after a brief period of time. In the online world, only the contemporaneous surveillance of our e-mail traffic is similarly protected. All the rest of it -- stored e-mail read or unread, Web browsing history, cell phone location, personal files, online purchases, the whole lot of digital life -- is simply a "record." And records are available via a subpoena under very permissive if any judicial intervention. No wonder court-ordered wiretaps are declining. The good stuff is elsewhere, and it's easier to obtain.
The AO's findings on wiretap location revealed another facet of modern life. Modern life is mobile, and cell phones are ubiquitous. By a wide margin, law enforcement is relatively not interested in wiretapping a criminal suspect's home. They go for the mobile device. During 2008, 1,793 wiretap orders were issued for mobile devices but just 31 orders were issued for a personal residence.
The AO's full report is available here.
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