Do the Police Have the Right to Tap My Telephone?

Law enforcement agencies can tap your phone under specific circumstances. You probably will not know if law enforcement begins to target you for an investigation. Understanding your rights and law enforcement's tools to tap your phone can help you protect your privacy.

Of course, any action within public view is available to law enforcement. The police can watch what you do in plain sight or in a public area, such as through the open window of a home or business. However, police may also access private communications, such as telephone conversations.

This article provides an overview of law enforcement's ability to monitor private communications. It also provides information regarding protections for safeguarding your right to privacy.

The Wiretap Order

Law enforcement agencies must get a wiretap order before eavesdropping on a phone conversation. A wiretap order is similar to a search warrant.

Because wiretapping is so intrusive, law enforcement officers are held to a high standard when seeking wiretap orders. To obtain a wiretap order from a judge, the requesting party must prove there is probable cause to believe tapping your phone lines will help the agency solve a serious crime or uncover criminal activity.

Examples of serious crimes include drug trafficking and money laundering. Tapping a phone to investigate a misdemeanor will not satisfy the requirements.

Restrictions on Wiretapping

State and federal laws regulate wiretapping and wiretap evidence. The Electronic Communications Privacy Act of 1986, otherwise known as the Wiretap Act, is a broad wiretapping law. It sets restrictions on the use of wiretaps. For example, agencies cannot listen in on privileged conversations. Officers must also minimize listening to conversations that are irrelevant to the criminal investigation.

Phone conversations from prison are generally exempt from the wiretap order requirement. Prisoners have a significantly reduced expectation of privacy. Therefore, they cannot expect that their phone conversations will remain private.

Pen Registers and Trap and Traces

Two other methods for tapping your phone are "pen registers" and "trap and traces." Pen registers record all numbers dialed from a particular phone line. Trap and traces record all the phone numbers that call a specific phone line. They do not record actual conversations. Therefore, they are considered less of a privacy intrusion. Because of this, police do not need to get a wiretap order first.

Government entities must obtain a court order to use pen registers or trap and traces. Instead of a wiretap order, government entities can receive a court order. To do so, they must certify that the information they will obtain is relevant to an ongoing criminal investigation.

Smartphones and Electronic Communications

The Wiretap Act also limits agencies' abilities to intercept electronic communications. Electronic communications include emails and text messages. The proliferation of smartphones has raised new privacy law issues.

In 1979, the Supreme Court held in Smith v. Maryland that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." This is known as the “third-party doctrine."

A cellphone provider is a third party. Most smartphone users constantly share various data with their providers. Smartphone users may share this information without knowing exactly what they share.

In 2018, the Supreme Court ruled in Carpenter v. United States that cell site location information (CSLI) is not subject to the third-party doctrine. CSLI is generated every time a cellphone communicates with a cellphone tower. Agencies could use this information to track a person's movements.

As technology continues to evolve, so too will privacy laws concerning technology.

The Right to Privacy

The U.S. Constitution does not explicitly provide a right to privacy. However, in 1965, the Supreme Court identified a right to privacy in Griswold v. Connecticut. Justice William O. Douglas wrote that the specific guarantees of the First, Third, Fourth, and Ninth Amendments created a “zone of privacy." Douglas wrote that those amendments protect Americans' private lives from government intrusion.

The Fourth Amendment's main purpose is to protect against the government intruding on citizens' personal space. If a police officer hears you talking on the phone in public about a drug crime, they can use that information as evidence. If that same agent, however, tapped your cellphone without a wiretap order, that would constitute an invasion of privacy.

Get Help With Your Criminal Case: Call an Attorney

Retaining a criminal defense attorney can be invaluable if you suspect that you are under investigation or that an agency is monitoring your phone. They can provide you with legal advice regarding privacy and criminal laws and inform you of your legal rights. Get started by calling an experienced criminal defense lawyer near you.