Wiretaps aren’t new in the investigation scene. Investigators in a few states in the United States have recently applied for and received court approval to wiretap communication apps and social media sites instead of traditional landlines and cell phones. Popular social media websites like Facebook and Instagram (which is now owned by Facebook) have been upgraded throughout time to include additional options for people to communicate through the apps. A calling feature, as well as a private or direct message feature, are included.
Wiretaps in Investigations
Wiretaps have been used by the government in investigations since the late 1960s, so it is not new concept, in concept. Wiretaps are helpful investigative tools because they allow investigators to listen in on other people’s conversations in real-time without needing to be near them. Investigators must first obtain a warrant from an authorized judge in order to legally wiretap a person’s phone, house, car, or social media.
Under federal law, the investigator requesting the warrant must explain to the judge the nature of the crime being investigated, who they want to intercept communications from, what types of communications they want to intercept (voice, calls, text messages, electronic messages, etc. ), why other investigative techniques are insufficient to obtain the evidence they seek, and much more.
Wiretap statutes vary by state, but they all allow state court judges to approve wiretap warrants requested by state investigators. Many state wiretap laws, including Maryland’s, are either identical to or extremely similar to federal wiretap laws.
Wiretaps have traditionally been used to intercept phone calls from a landline ora cell phone, as well as cellular text messages.
Wiretap Statutes in Texas
Investigators in Texas, on the other hand, have successfully utilized wiretaps to intercept texts and phone calls sent over social media in real time. Individuals’ social media accounts and applications are being targeted, which raises severe privacy concerns. People are increasingly relying on these apps to communicate with one another. The number of wiretaps allowed in 2020, the counties where they were requested, the type of wiretap, the length of the surveillance period, and the type of criminal behavior investigators were seeking are all detailed in an annual report presented by the judiciary department. Many wiretap requests are now for a social media account (specifically, Instagram) or an unnamed app.
While this strategy appears to have worked in Maryland and a few other states, it’s uncertain whether all other states will follow suit. California federal investigators have attempted and failed at least once. During a 2018 investigation into the gang MS-13, the FBI attempted to have Facebook held in contempt of court after the company refused to create a “backdoor” in its software that would allow agents to intercept calls made by a target via Messenger’s calling feature, despite the fact that they were already intercepting Messenger texts. Because the hearing and many court documents were sealed, specifics about both sides’ arguments and why the judge sided with Facebook are limited.
Due to the type of encryption used while conversing via these platforms, the future use of social media wiretap warrants is likewise uncertain. Importantly, the communications in the Maryland cases could be intercepted because Facebook and Instagram communications are not end-to-end encrypted (“E2EE”) by default. Even with a warrant, authorities cannot intercept or listen in on a message or call that is protected by E2EE. E2EE communication apps include Apple’s FaceTime, WhatsApp, Signal, and Telegram, among others. As early as 2022, Facebook plans to make E2EE the default for direct communications sent through Facebook Messenger and Instagram.
Wiretap warrants are frequently used in criminal investigations, which can be complicated by technological improvements. Wiretaps have been used in federal drug conspiracy, money laundering, and federal fraud cases for many years, and our firm has a lot of expertise with them. If you or someone you know has been accused of or charged with a crime involving wiretaps, please contact us to learn more about these situations and how we might be able to assist you.