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 ivil
libertarians of all political stripes have expressed concern about
the expanded surveillance powers — specifically, a broadened
authority to listen in on telephone conversations — that will
be granted to the government in the new anti-terrorism bill making
its way through the House and Senate. While there are certainly
reasons to be worried, what has received little attention in the
debate is just how rare wiretaps are in the United States.
The Administrative
Office of the U.S. Courts, which oversees courts in the United States,
publishes a yearly Wiretap Report listing the number of wiretaps
authorized by courts in criminal investigations across the country.
For the year 2000, according to the latest report, there were 1,190
court-authorized wiretaps in nationwide — 711 in state courts
and 479 in federal courts. The latter is an extraordinary figure
— in a country of 285 million people, the federal government
conducted a total of 479 wiretaps in criminal investigations last
year (and the great majority of those, 385 wiretaps, were for narcotics
investigations).
The numbers
are so small for three reasons. First, wiretaps are really not necessary
in most criminal investigations. Second, it is very, very difficult
for law enforcement to receive court permission to tap a potential
suspect's telephone. And third, wiretaps are expensive, time-consuming,
and labor-intensive projects.
Before they
can even apply to a court for a wiretap authorization, federal prosecutors,
no matter where they are working, must get the approval of one of
the top two or three officials in the Justice Department in Washington.
Once they have their bosses' permission to apply for a wiretap,
prosecutors then have to convince a judge that all other investigative
options have been exhausted. They also have to draw tight limits
around their surveillance in order to avoid recording innocent conversations.
Finally, if permission to wiretap is granted, law enforcement officials
have to produce voluminous reports to keep the court apprised of
the progress of the investigation. It's a lot of work.
And even if
investigators receive the OK to wiretap, that's just the beginning
of an extraordinary amount of work. "Law enforcement tends
not to like them because they end up consuming vast amounts of resources,"
says Joseph diGenova, a former U.S. Attorney for the District of
Columbia. "They require 24-hour-a-day surveillance."
So there are
very, very few wiretaps in criminal investigations. But there is
another way in which the federal government uses wiretaps, and that
is for intelligence work under the Foreign Intelligence Surveillance
Act (FISA). The number of wiretaps approved by the special FISA
court is not known, but it is thought to be fairly small —
probably less than 1,000 each year. And many of those are believed
to be devoted to a small number of projects. For example, the U.S.
government might routinely tap the phones of nearly every official
in the Chinese diplomatic corps, which would account for a significant
portion of the total foreign intelligence wiretap count.
The bottom
line is that even if one adds all criminal investigation and foreign
intelligence wiretaps together, the number of federal wiretaps is
extraordinarily small. Of the perhaps 1,500 wiretaps each year,
it is likely that fewer than 500 involve American citizens. "In
one sense, that's good, because it means they're not being abused,"
says diGenova. "But it also means that we will miss opportunities,
and then, as a free society, we will have to live with the consequences."
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