NCJ Number
202717
Journal
Criminal Justice Volume: 18 Issue: 3 Dated: Fall 2003 Pages: 4-8,10,19
Date Published
2003
Length
15 pages
Annotation
This article explains some of the important provisions of the American Bar Association's Standards on Technologically-Assisted Physical Surveillance and the Standards on Electronic Surveillance (third edition).
Abstract
The third edition of the Standards on Electronic Surveillance concludes that "private communications should be afforded the same level of protection whether they are spoken in person or transmitted by technological means, whether or not the communications include the human voice" [Standard 2-3.1(a)(iv)]. This standard suggests there is no justification for broadly dispersing the authority to approve applications for the interception of electronic communications, for increasing the list of crimes for which electronic communications may be intercepted, and for precluding suppression for the violation of a statute that regulates the interception of electronic communications, no matter how central the statute is to the overall legislative scheme. Regarding the jurisdiction in which the authorization for electronic surveillance is sought, the Standards require that the court issuing an order be one that has geographical jurisdiction over the crime for which the electronic surveillance is authorized. This means that a Federal judge can issue an order that authorizes the interception of communications "regardless of where those communications are occurring" so long as two requirements are met; first, that the "communications are to be intercepted within the United States;" and second, that the offense is being committed "within the territorial jurisdiction of the court" [Standard 2-4.7(a)]. To some extent, the Standards treat orders issued by State court judges similarly, but they also recognize and resolve other problems not applicable to Federal orders. Generally, they permit a State court judge with geographical jurisdiction over an offense to issue an order that authorizes the interception of communications that relate to that offense "regardless of where those communications are occurring," so long as the "communications are to be intercepted within the State" [Standard 2-4.7(b)(i)]. "Minimization" is the obligation placed upon law enforcement officers executing an electronic surveillance order to make a good faith attempt to limit their interceptions to those conversations that are relevant to the criminal activity they are authorized to investigate. The Standards require that the officer who analyzes intercepted communications disseminate to other officers only the pertinent communications, while not disclosing communications irrelevant to the targeted offense. The Standards further provide that any intercepted communications not pertinent to the targeted offense be disclosed to the defendant for possible exculpatory use. Like communications surveillance technology, surveillance technology that allows observation of physical activities and conditions is vastly improved over that of a few decades ago. The technology can be divided into five categories: video surveillance, tracking, illumination, and telescopic and detection devices. In each of these areas, developments have been dramatic. The Standards seek neither to expand nor contract those situations that require a warrant or a particular level of cause under the Fourth Amendment, nor are they intended to add to or detract from the constitutionally mandated remedies for violations of that amendment. The Standards also recognize that there are areas in which fourth amendment principles alone may not provide adequate protection for the privacy and related interests that are involved in the use of new technologies for criminal investigations. In these areas, the Standards recognize that it may be desirable to enact, by legislative or administrative rule, protections that go beyond those recognized in current fourth amendment case law. This article summarizes the six Standards that govern physical surveillance technology.