Lawful Interception

The term lawful interception refers to surveillance of communications between people by law enforcement agencies. This type of surveillance includes communications by phone, email, and other electronic means, and can only be legally undertaken with a court order. To explore this concept, consider the following lawful interception definition.

Definition of Lawful Interception

Noun

  1. Legally sanctioned access to private communications.

What is Lawful Interception

Lawful interception is a security process in which communications between organizations or private citizens are collected by the service provider, and provided to law enforcement investigators. The purpose of lawful interception is to prevent, and aid in the prosecution of, crime and terrorism. This method of surveillance and collection of evidence occurs globally, with most countries having laws governing the interception and storage of private communications.

How Lawful Interception is Carried Out

Because a great deal of evidence needed by law enforcement agencies (“LEA”) includes a suspect’s communications with others, providers of phone and internet services are required to maintain a method of tracking and storing such information. Because the U.S. Constitution guarantees people a right to privacy, service providers can only provide communications data to LEAs after a court order, or “warrant,” has been issued.

Once an LEA presents a warrant to the service provider, the target’s IP address is used to isolate and record all of its electronic communications data. When the intercept is authorized and set up, it functions on its own, checking incoming and outgoing communications for those matching the specifications entered by the service provider. Those communications that meet the criteria are copied, and the original is delivered to the original destination, so the target has no idea surveillance is going on. This data is forwarded to the LEA without the target ever having been notified.

Example of Lawful Interception

Neil is suspected of buying large amounts of drugs, and selling them in his neighborhood. Police investigators know that Neil has two cell phones and a tablet, and wish to know how he communicates with his supplier, and what is said between them. After a judge issues a warrant allowing them to get a “wiretap,” police present it to Neil’s phone and internet service providers.

Each of the service providers sets up the intercept, and provide the recorded information to the police. Because each communication is only stalled long enough to digitally copy it, before being sent on its way, Neil has no idea police are receiving that information. Police discover that Neil communications with his supplier by email, using an “anonymous” Gmail account. In this example of lawful interception, police find evidence in the form of dates and times for pickups in the emails, which are used to convict Neil of drug trafficking.

Communications Assistance for Law Enforcement Act

In 1994, Congress enacted legislation enhancing law enforcement’s ability to conduct electronic surveillance. The Communications Assistance for Law Enforcement Act (“CALEA”) requires all telecommunications service providers to make modifications to their equipment and services to have built-in capabilities for surveillance. CALEA allows federal law enforcement agencies to place a wiretap on telephone calls, though it has been updated to include tracking and recording communications sent via broadband internet, VoIP, and other electronic means.

The Federal Communications Commission (“FCC”) is tasked with ensuring communications service providers are in compliance with CALEA. The agency provides information about lawful interception on its website.

Lawful Interception vs. Spying

While CALEA allows law enforcement agencies to obtain private communications information with a warrant, many people are concerned that it may have paved the way for the government to engage in widespread spying on American citizens.

In the years following the 9/11 attacks, the agencies tasked with stopping terrorism in the U.S. may have taken lawful interception a bit too far. In 2005, the NSA was accused of having received copies of telephone and other types of electronic communications on a wholesale level, without obtaining court orders.

Lawful Interception Example in Government Lawsuit

In 2014, the federal government filed a civil lawsuit against Sprint Communications, claiming the communications company had over-charged the government for lawful interception services. Although CALEA requires communications service providers to maintain a way to intercept and store communications when presented with a court order, they do not have to provide the actual wiretap services free of charge.

In 2006, the Federal Communications Commission made a ruling on an important issue to the CALEA, prohibiting service providers from recovering the costs of modifying their equipment or facilities to provide intercept services. Specifically, it ruled that such charges could not be included on invoices for actual intercept services. The lawsuit claims that Sprint knowingly submitted invoices that fraudulently included charges for costs of upgrading equipment. The overbilling amounted to about $21 million.

In this example of lawful interception lawsuits, the government sued for the amount it had already mistakenly paid on those fraudulent charges, tripled, which is allowed by law, as well as all costs and expenses of bringing the lawsuit. In 2015, a year after the suit was filed, the parties agreed to a settlement for $15.5 million.

Related Legal Terms and Issues

  • Surveillance – The close observation of a person or group, especially a suspect in a criminal investigation.
  • Warrant – A writ issued by a court or other legal official authorizing law enforcement or other agency to make an arrest, search a premises, or take some other action related to the administration of justice.
  • Wiretap – Interception of wire, oral, or electronic communications.

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