States Go Slow on Wiretap Expansion

By: - October 12, 2001 12:00 am

While the U.S. Congress is nearing a vote on a bill that would expand federal wiretapping in order to combat terrorism, most states are taking a go slow approach. In the wake of the September 11 attack on the World Trade Towers, New York lawmakers broadened their wiretap laws to add terrorist activities to the list of offenses police can investigate with electronic eavesdropping.

So far though, only one other state — Florida– is considering following New York’s lead. Foes of increasing states’ surveillance powers say state prosecutors may never use new wiretapping laws because terrorism comes under the purview of federal prosecutors and federal courts.

They say the FBI already has all the authority it needs to get a wiretap when it has evidence of a potential bombing or terrorist attack.

“In terms of international terrorism investigations, state and local police have only a supporting role to play in most instances, since so much of the information is classified,” said privacy advocate Jim Dempsey, deputy director of the Center for Democracy and Technology. “It would be a mistake for a state to take the lead on a terrorism-related wiretap.”

In Florida, an Oct. 1 report called for expanding wiretap and surveillance capabilities to ensure they incorporate new technologies such as wireless communications. Studying wiretapping laws appeared on a short-term to-do list in “Assessing Florida’s Anti-Terrorism Capabilities,”a report prepared by the Florida Department of Law Enforcement and the State Division of Emergency Management.

Clifford Fishman, a Catholic University law professor who is an expert on wiretapping, said the catastrophic terrorist attacks could lead more states to update their eavesdropping laws to account for wireless phones.

“As a practical matter, no state has kept up with the revolution in communications technology,” Fishman said.

The advent of throwaway phones has meant that law enforcement has trouble tracking suspects who may switch phones daily. Roving surveillance, being considered by the U.S. Congress, would tie authorization to individual suspects rather than phone lines.

Federal law already allows the FBI to get a roving wiretap for crimes involving bombs, nuclear materials, assassinations, and hostage-taking.

Roving surveillance has been approved but rarely used by Arizona, Colorado, Florida, Illinois, Kansas, Minnesota, Nebraska, New Jersey, North Dakota, Utah, Virginia, and Washington, Fishman said..

Wiretapping, traditionally used to monitor conversations involving organized crime or drug offenses, has not yet proven its usefulness in combating terrorism, privacy advocates say.

In 2000, police made 1,190 applications for wiretaps. About 75 percent of those were for narcotics investigations .

Last year, 25 states used wire, oral, or electronic surveillance as an investigative tool. State judges authorized 711 wiretaps; federal judges OK’d 479. Wiretap applications in New York (349), California (88), New Jersey (45), Pennsylvania (43), Florida (43), and Illinois (41) accounted for 86 percent of all authorizations approved by state judges in 2000.

In Virginia, both candidates for attorney general have said they support expanding their state’s wiretapping authority to address new technologies and terrorism.

Spokesmen for state attorneys general in Maine, Ohio, Kentucky, Georgia, New Jersey, Utah and Arkansas said they aren’t pushing for new wiretap laws, and no such bills are pending.

But in Michigan, where a state wiretapping bill died in the legislature last year, privacy advocates say the measure is likely to reappear this session and offer citizens a false sense of security.

“Expanding our wiretap laws is not necessarily a measure that will offer greater security,” said Wendy Wagenheim, communications director for the Michigan American Civil Liberties Union. “There are a lot of innocent conversations that are being eavesdropped on, and that will just increase.”

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