Wiretap Facts in the Case of Illinois
Governor Blagojevich
The use of wiretap is widely credited for the arrest
of Governor Blagojevich on charges that he was attempting to sell
President Elect Obama's vacant Senate seat to the highest bidder.
The Illinois Governor was authorized to select a replacement.
Wiretap System Facts
- In October of 1994, President Clinton signed into
law the Communications Assistance for Law Enforcement Act (CALEA) as
drafted by the 104th Congress.
- This law required any company offering phone
service or other telecommunications services to develop as "standard"
wiretap system so law enforcement could wiretap a user on any type of
phone easily.
- Until the 1994 law was signed, telephone companies
provided wiretap service to law enforcement on a voluntary basis.
Each phone company had their own methods of wiretap.
- The FBI was instrumental in championing the new
law to "maintain surveillance capabilities" lost due to rapidly
changing technology. In other words, the FBI was having
difficulty wiretapping people who used cellular phones, Nextel
Push-to-Talk walkie talkie type devices and text messaging.
- Congress required law enforcement (represented by
the FBI) and the telephone industry (represented by standards
engineers) to develop the system together.
- The first implementations of CALEA were rolled out
in early 2000.
- Failure to provide wiretap service to law
enforcement is punishable by fines of $10,000 per day.
- 75% of wiretaps are authorized for drug
conspiracies.
Wiretap Use Facts (Mr. Levitan is not an
attorney. These facts are requirements on Telephone
companies)
- There are two types of wiretap; "Pen Registers"
and "Title III"
- Pen Registers allow law enforcement only to
receive the phone numbers called by the "target" and the phone
numbers of those who call the "target". The time and duration
of the call is also provided by the phone companies standard CALEA
system.
- Title III (a reference to the wiretap laws) allows
law enforcement to also obtain the contents (voice, conversation,
text messages) of a call between the target and the target's
"associates".
- Under CALEA, a court order must be presented to a
telephone company in order to require a phone company to start a
wiretap.
- Once the wiretap order is received and verified,
the phone company enters the phone number's) to be wiretapped, the
type of wiretap (Pen Register or Title III) and the duration of the
wiretap (generally 30 days) into an administrative system. Law
Enforcement must also tell the phone where the information and voice
is to be delivered. This may be an FBI office or "wire room"
that monitors multiple wiretaps. The law requires that the facility
be OUTSIDE of the phone companies property.
- Only a few thousand wiretaps are authorized
annually. In 9 of 10 wiretaps authorizations by judges are for
"Pen Register Only".
Governor's Wiretap Facts
- The purpose of a wiretap is NOT to
collect evidence against a target. In order for law enforcement to be
authorized for a wiretap, they must have already had enough evidence
on Illinois Governor Blagojevich to arrest him for a crime.
- The purpose of a wiretap is to collect evidence
of conspirators. Wiretaps attempt to determine who else may
be involved in the crime. Governor Blagojevich was already
alleged to be in violation of the law prior to the start of the
wiretap. The wiretap was used to determine who else was
involved. Law enforcement wanted to determine who was engaged
in assisting the Governor in allegedly selling the open Illinois
Senate seat. Further, the wiretap had the goal of determining
who was actively seeking to buy the Senate seat.
- Wiretaps are authorized by a Judge for a specific
period of time. It is likely that law enforcement was
authorized a "Pen Register" for a period of 30 days. After 30
days, law enforcement likely returned to the judge with a list of
phone numbers that had frequent or regular contact with the target,
Governor Blagojevich.
- Based on a review of the evidence collected in the
30 day Pen Register period, the judge likely authorized a Title III
wiretap, however, the judge likely limited the calls that law
enforcement could record to a short list of phone numbers that
appeared to be part of the conspiracy. Further, the judge
likely ordered that law enforcement discontinue monitoring of any
call that did not relate to the specific charges against the
Governor. This is know as "minimization".
- Minimization means that law enforcement monitors
only calls to or from the phone numbers of the associates authorized
by the judge's order. Further law enforcement listens to the
calls for approximately 30 seconds to determine if the discussion
taking place is related to the charges against the Governor. If
the Governor is speaking with his wife and they are discussing
arrangements for Thanksgiving, law enforcement must discontinue
recording of the call after approximately 30 seconds. If the
call continues for a period of time, law enforcement may occasionally
listen in on the call to determine if the topic of the call has
changed.
- If the call is with an known associate and the
discussion is related to a crime that is not the subject of the
wiretap, I understand that the monitoring must be discontinued
because it is not part of the wiretap order.
- Why did the wiretap end? After each wiretap
authorization period ends, law enforcement is required to return to
the judge to request an additional authorization to continue the
wiretap. It is likely that law enforcement determined that they
had collected all the associates they could reasonably collect so
chose to discontinue the wiretap. In a similar manner, the
judge may had determined that there was no valid reason to continue
the wiretap.
- A final reason that the wiretap may end is that a
dangerous or serious action is imminent. In drug cases, a group
of conspirators may be ready to commit a crime involving firearms.
In the interest of public safety the wiretap is ended and arrests are
made.
- In the case of the Governor, a transaction for the
Senate seat may have been eminent and an announcement of a
replacement for President Elect Osama's Senate seat was to take
place. The damage to the public trust of allowing the Governor
to fill the seat may have been the reason for the timing of the
arrest and end of the wiretap.
What's Next?
- Arrests of the conspirators obtained during the
wiretap. These may be far ranging and shocking.
Note: Mr. Levitan was a pioneer in the CALEA wiretap system
and was involved in it's design since 1993 (prior to the signing of
the law). Mr. Levitan has worked primarily for cellular
telephone companies, but has also been a consultant to the FBI
representing their interests in wiretap. Mr. Levitan is not an
attorney. These facts presented are from his experience in Telephone
companies and his work as an expert witness in wiretap matters.
MEDIA EXPERIENCE
Levitan is a regular guest on the CNN Headline News "Nancy Grace" show
providing expertise on cellular phones in the Casey Anthony Matter.
Further Mr. Levitan is a popular guest on technology and cellular
phones on radio talk shows as well as at workshops and seminars. Topics include: wiretap (CALEA), basic telephony, cellular telephony, new technology and new telecommunication mandates imposed by the FCC.
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