Tap, Tap, Tap
Why the government doesn’t wiretap — much.

October 5, 2001 3:45 p.m.

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."