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Home > Supervision > State Wiretap Laws: The Title III Gorilla in Correctional Computer Monitoring?

State Wiretap Laws: The Title III Gorilla in Correctional Computer Monitoring?

January 27th, 2011

Community corrections agencies are increasing being asked to manage cyber-risk. Some prohibit all computer or Internet use. Others conduct periodic computer searches. Many are relying on computer monitoring software to do the lion’s share of the risk management. So how does wiretap laws pertain to community corrections computer monitoring? Lets see!

Title III in this article collectively refers to wiretap laws at the federal and state level. Kerr writes this in regards to the federal statute:

“The basic structure of the Wiretap Act is surprising simple. The statue envisions that an individual is exchanging communication with another person or machine. The state makes it a crime for someone who is not a party to the communication to use an interrupting device to intentionally access the private communication in “real time.” (pg. 451)

How does this relate to computer monitoring then? In O’Brien v. O’Brien, Case No. 5D03-3484, (2005) a Florida appellate court ruled that computer monitoring by a spouse was governed by the state’s wiretap statute, which was patterned after the federal law (18 U.S.C. § 2501). In this case the spouse used software to capture chats, instant messages, and web browsing by her husband, without his knowledge. The software eventually captured the husband’s communication with his girlfriend, who also was unaware of the monitoring. The appellate court ruled in part that …. “spyware installed by the wife intercepted the electronic communication contemporaneously with transmission, copied it, and routed the copy to a file in the computer’s hard drive, the electronic communications were intercepted in violation of the Florida Act.”

Some community corrections officers are deploying similar monitoring software, particularly on sex offenders’ computers. The installation is usually through a supervision condition authority. Additionally, the offender and all household members who may use the computer are always fully aware that the monitoring software is present. Progressive agencies also place electronic consent banners at the start up of the operating system and place hard copy warning stickers letting all who may use the system know they have no expectation of privacy if they use the computer.

Federal law provides a minimum level of privacy protection with the wiretap statute. Some states have greater protections. The federal Title III law and states with similar laws provide for some exceptions to a wire tap. Several exceptions are germane here. The first is commonly known as consent. There are two kinds of consent. The first is one party consent, which is contained in the federal law and 38 state statutes.

Under one party consent if one person knows about the inception (monitoring) and agrees, the monitoring can occur. In a correctional setting, the offender knows as well as all who use the system, that the computer is being monitored. This is established by the use of the banner and/or hard copy notices. Additionally under federal law there is also an exception for a person acting under “color of law” to intercept a wire, oral, or electronic communication with consent of one party to the communication.

The other type of consent is called two party. This means that both parties to the communication have to consent to the monitoring. There are twelve states that have two party consent (CA, CN, FL, IL, MD, MA, MI, MO, NV, NH, PA, and WA,  Reporters Committee for Free Press). Some two party states, such as Florida, allow an exception to law enforcement with one party consent, when…. “the purpose of such interception is to obtain evidence of a criminal act.” (FL 934.03(1)(c)). The purpose of correctional computer monitoring is to insure compliance not necessarily to obtain evidence of a criminal act. For instance, monitoring may used to insure a sex offender is not viewing adult pornography, which would be a treatment issue and not a criminal act.  

Two party consent can therefore be an important consideration if computer monitoring is occurring. The offender and their household’s consent means little when they communicate via the computer with someone who is not aware the monitoring is taking place. The third party person they may communicate with can’t see the warning banner or the stickers. Lets see how this plays out.

  1. Sally’s son is being supervised for downloading child pornography. They live in a two party state and her son’s officer has installed monitoring software on the computer so he can have Internet access to look for work. Sally is okay with this as she wants her son to say out of trouble. The software will be on the computer as long as her son is in the home and on supervision.
  2. Sometime after the installation, Sally gets online and enters a chat room where a discussion on breast cancer is taking place. There are five others in the chat room. Sally posts in the chat room as well as communicates via instant messaging with the other participants. Additionally, she sends and receives e-mails from all them after exiting the chat room. All of this activity is being recorded by the monitoring software. Sally knows about the monitoring software but the five others do not.

Do the five have a reduced expectation of privacy for their chat room discussions, yes of course? But what about the private instant messages or their e-mails with Sally? You see the problem.

Some monitoring software alleviates this problem by limiting monitoring to only the offender’s usage. One company actually uses a biometric device to ensure only the offender is being monitored. But the offender’s communications are still obviously being monitored. It is hard to imagine why a sex offender would be allowed in a chat room, but use of e-mail is another matter. The offender’s exchange of e-mail with someone else could also create the same consent issues to monitoring in a two party state.

Now the second exception to wire taps is the issuance of a court order. Under federal law there are specific time constraints and judicial oversight of the entire process. Additionally, there are specific requirements to get a wiretap order issued. They include a finding of probable cause that the following exists:

” a) there is probable cause that an individual is committing or about to commit a specific crime; there is the belief that particular communications concerning that offense will be obtained through such interception; and c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.”

Even a supervision condition for monitoring software, ordered by a Court is hard to imagine being the same. There is no probable cause to believe the offender is committing or about to commit a new crime.  Additionally, a periodic computer search can be used to find the evidence so a normal investigative procedure could be used.  Finally, computer monitoring on an offender can literaly be on the entire term of supervision, which is often years in duration as opposed to days or months common in wiretap orders. 

It is possible that monitoring software might follow what has occurred with probation searches. Specifically, in United States v. Knights, 122 S.Ct.587 (2002), the Supreme Court “…held warrantless search of a probationer’s apartment, supported by reasonable suspicion and authorized by a condition of his probation, was reasonable within the meaning of the Fourth Amendment.” Does this mean an appellate Court could carve out some kind of exception for computer monitoring for probation/paroles because they have an reduced expectation of privacy? What about the order’s impact on others inside and outside of the offender’s home who may be involved in communications with the offender’s monitored computer?

By the way, what is the down side of breaking a wiretap law? How does possible criminal and/or civil penalties grab you? Clearly some thought has to go into computer monitoring in states with two party consent issues. At a minimum agency’s should do the following:

Know throughly what computer monitoring they are using can do and can not do. Some important considerations are:

  1. Is a electronic consent banner part of the program?
  2. Can it be configured to only capture the offender’s activities?
  3. Can it be set to prevent incoming communication from non-supervised person’s from being captured?
  4. Can it block programs that might create two party consent programs, such a chat or Instant message programs?
  5. Can it filter data to monitor or alert, to only that which is germane to the conviction or problem conduct?
  6. Can it set to capture only outgoing communication from the offender

With a working knowledge of the software discuss the situation with a Title III legal expert in the jurisdiction to insure that if monitoring can be deployed that it is done only in a manner consistent with state and federal law. The last thing you want to do is create bad case law or worse, by not dealing with this “gorilla.”

References

Electronic Surveillance Laws, Accessed from http://www.ncsl.org/default.aspx?tabid=13492

Florida State 934.03: Interception and disclosure of wire, oral, or electronic communications prohibited. Accessed from http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0900-0999/0934/Sections/0934.03.html

Kerr, Orin (2006) Computer Crime Law, Thompson, St. Paul

O’Brien v. O’Brien, Case No. 5D03-3484, (2005). Accessed from http://www.5dca.org/Opinions/Opin2005/020705/5D03-3484.pdf

Reporters Committee for Free Press “Can We Tape?” Accessed from http://www.rcfp.org/taping/

United States v. Knights, 122 S.Ct.587 (2002)

18 U.S.C. Chapter 119, Wire and Electronic Communications Interception and Interception of Oral Communications. Accessed from http://www.justice.gov/criminal/cybercrime/wiretap2510_2522.htm

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Art Supervision

  1. January 27th, 2011 at 17:05 | #1

    Art, once again you have posted a great article that has gone into great detail about the pitfalls and advantages of computer monitoring of offenders on community supervision. A few other things I would like to add as food for thought is that the monitoring company or the probation department obtain a consent form from the offender, or the owner of the computer that is being monitored. This helps in dispelling Title III issues. Also there is also the approach that the offender does not have to have a computer or internet access, and they are granted access to these by agreeing to have their activities monitored. It is simply put that if they don’t want to be monitored they can opt to not use a computer or the internet.

    Also other issues to consider would be that probation is a continuation of thier sentence, or used in place of serving time in jail. Would we allow offenders in prison to use a computer and not monitor what they were using it for? While a lot of civil rights advocates say that it is a violation of their civil rights, I feel that they are still serving out their sentence for the offense they commited, but they are being allowed to serve out the rest of their time in the community under supervision of the courts.

    One of the more interesting questions that I have heard recently is: If Sex Offenders are prevented fro accessing the Internet, might they use another more dangerous method to select potential victims? Just food for thought. Thanks Art.

    • Art
      January 27th, 2011 at 18:13 | #2

      Thank your for comments. One of things I am finding curious is something I posted a while ago about some prisons allowing computer, e-mail, and even limited Internet access for inmates. Inmates and Computer Access: Good or Bad
      http://www.corrections.com/cybercrime/?p=65. So in some states, you could revoke an offender for having computer access without permission and they get sent back to prison where they might get access again. Someone has got to understand that offenders (either on supevision or in prison) have a diminished expecation of privacy. They get their rights back after they have completed supervision/sentence and not before.

      The question your raised about is it safer to prevent sex offenders from the Internet as they could find more dangerous ways to find kids is a new one. What other media out there allows an offender to find kids without telling them who there are and groom them? I mean the Internet allows individuals to be anyone they want….which can be used to trick kids into disclosing personal information….so they can find them. Case in point….supervised sex offender in Chicago goes online…pretends to be a young boy….gets information about victim….finds her and rapes her in own home. See http://abclocal.go.com/wls/story?section=news/local&id=7922281. Not to mention the Internet has more kids present than any playground in the world…. it is the world’s electronic playground for many kids. I would answer this question with…tell me what is more dangerous than that ….and I will move to prohibit their access to it TOO… Again thank you, take care and be safe!

  2. Michael C Taylor
    January 27th, 2011 at 19:58 | #3

    Art,

    A very good article and it has been long overdue. There are more issues here than we could possibly write on a blog page. As I have previously mentioned, I have been attempting to gain the ear of the correct people in our state (PA) for a very long time, for just these reasons.

    Although several of your six points can be used at a high level, several of those points will simply not work in two part consent states or they may be circumvented in cases of point number six. If I am a pedo or other type of criminal, I do not forgo my right to privacy under Pennsylvania’s Wiretap Act. I could be one of the target’s pedo friends and be communicating with you electronically and trade pics. That evidence cannot be used and it considered an illegal wiretap – in PA.

    The bottom line is that Judges, Attorneys and technically proficient individuals that have worked in these fields MUST get together and form new and up to date legislation that takes these technologies into account.

    I hope that someone out there is watching and listening – other than the offender.

    • Art
      January 30th, 2011 at 00:37 | #4

      Thank you. This is why legal experts need to be involved in the process and not just anyone but someone familar with Title III matters as well has how the monitoring software works. The key as I see it is to insure that monitoring is only occuring on the person who consents to it… YEAH…easier said the done! It could be specifically instructed to only record the outgoing messages from say Outlook and not the incoming, or maybe block the use of the program all together. However, then you have webmail. That is going to be tougher to work out. You can block all chat fuctions. As you point out it is going to be very hard to accomplish. Would only capturing outgoing messages….which would have the consent of the sender with the banner… be prohibited in a two party state? I can see that going both ways.

      I really don’t see a mangement issue with not capturing the incoming communication. If a sex offender gets a picture via email you would not capture the receipt of the message or the text of the message. Once that image is on the computer though it is another matter. The monitoring might catch it being viewed or saved, that is not communication then. Additionally, I have always said the ability to do a search should be on the table. A searches detection of it would not be a Title III issue.

      In the case you present, I fully understand that evidence could not be used against the friend…but what about the offender?… Yes I know it is illegal but does that taint it for them as they have no expecation of privacy? OR per se once it is illegal it can’t be used against them either? I would assume there federal authorities though might be able to take a crack at it. Again, these are legal questions and why a legal beagle needs involved at the start as oppose to waiting until trouble.

      This really comes down to how do manage the sex offender’s conduct without violating the other individuals they communicate with’s rights. Either the software and/or its usage has to got comply to the demands of two party states OR there is going to have to be some legistative action to carver out a limited exception.

      Again thanks for commenting and be safe out there!

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