Does the “Other Party” on a Wiretapped Line Have Any Privacy Rights?

Please note that this post is from 2007. Evaluate with care and in light of later events.

So when the government is targeting a person’s communications, what rights does the person calling — or being called — have? What about if the target is overseas and the “other party” is in the United States?

This is an area that seems pretty unclear to me right now, although it might be pretty important given the NSA warrantless wiretapping (both in the U.S. and abroad). Generally, courts seem to say that anyone whose voice (I don’t think I’d extend this to “communications” in general) is intercepted has standing to challenge the validity of that interception, based on factors such as a lack of probable cause, etc., although with limitations (courts are more restrictive about the minimization requirement, for example). But this analysis of standing appears to be based on Title III itself (i.e., statutory interpretation), not really on Constitutional grounds. So, I’d venture to say that if a wiretap is done overseas, then the U.S. citizen will not be able to base standing to contest it on Title III, since it isn’t a Title III wiretap.

Instead, it seems to me one would have to look more generally to Constitutional limitations on search and seizure, and try to pull in older, pre-Title III case law. Since modern courts haven’t needed to reach the Constitutional issues on wiretaps (they tend to look only to the statute), Constitutional case law hasn’t really advanced much in this area to match modern expectations of privacy (that’s my opinion, at least). I’m not quite sure how this would work with the international aspects, and I doubt the courts are very clear on that, either.

In addition to pre-Title III wiretap cases, other possible analogues might be people whose letters or documents in which they have a privacy interest are intercepted during a search targeted (perhaps a search with no warrant would be the best analogue?) at someone else. What are the rights of these persons under the Constitution? See Whitaker (below) for a start on this idea.

In terms of “unintended parties” whose telephone calls are intercepted under Title III, the courts have no problem with that at all, provided Title II requirements are adhered to (an inventory given to the court of identifiable persons and notice to those persons). Even when this isn’t perfectly done (either law enforcement should have known to name a specific person in advance, or screws up the inventory/notice) the courts seem generally OK with that (perhaps as long as it isn’t clearly intentional?)

Here’s some resources to look at:

• 18 USC § 2518 (10)(a) (“Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter [18 USCS §Â 2510 et seq.], or evidence derived therefrom.”)

• Executive Order 12,333 (1981) (“Agencies within the Intelligence Community shall use the least intrusive collection techniques feasible within the United States or directed against United States persons abroad. Agencies are not authorized to use such techniques as electronic surveillance, unconsented physical search, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the agency concerned and approved by the Attorney General. Such procedures shall protect constitutional and other legal rights and limit use of such information to lawful governmental purposes.”)

• United States v. Whitaker, 474 F.2d 1246 at 1247 (3rd. Cir. 1973) (“As with warrants to search for tangibles, Fed. R. Crim. P. 41, the warrant and notice requirements of Title III are directed to the protection of the primary target of the search. It has never been suggested that because letters in the possession of that primary target might contain communications from other parties those other parties are constitutionally entitled to notice and an inventory. Nor are such other parties aggrieved persons within the meaning of Title III. . . . Thus far the Court, despite the opportunity to do so, has declined to hold Title III to be unconstitutional.”)

• U.S. v. Kahn, 415 U.S. 143 (1974) (tap revealed info on wife, although she was not a named target — not suppressed when prosecuting wife because order listed “other persons yet unknown”)

• The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, Orin S. Kerr, 102 Mich. L. Rev. 801 at 853-54 (2004) (“[C]ourts have held that Fourth Amendment reasonableness hinges on whether the wiretapping complied with statutory law of the foreign country where the wiretapping occurred.”)

• United States v. Peterson, 812 F.2d 486 at 490 (9th Cir. 1987). (“If, however, United States agents’ participation in the investigation is so substantial that the action is a joint venture between United States and foreign officials, the law of the foreign country must be consulted at the outset as part of the determination whether or not the search was reasonable.”).