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Date: Mon, 10 Dec 2012 19:05:14 -0500
From: "James M. Atkinson" <jm..._at_tscm.com>
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Organization: Granite Island Group
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Subject: DOJ Policy Guide
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http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/60mcrm.htm
9-60.202
Illegal Electronic Eavesdropping�Prosecution Policy
The criminal prohibitions against illegal electronic eavesdropping
contained in Title III are part of the same act which permits federal
law enforcement officers to engage in court-authorized electronic
surveillance. Congress viewed the criminal sanctions and the court
authorization provisions as two sides of the same coin. The retention of
the government's authorization to engage in court-authorized electronic
surveillance may depend on its vigorous enforcement of the sanctions
against illegal electronic eavesdropping. Accordingly, it is the
Department's policy to vigorously enforce these criminal prohibitions.
The Department's overall prosecutive policy under 18 U.S.C. � 2511 is to
focus primarily on persons who engage or procure illegal electronic
surveillance as part of the practice of their profession or as incident
to their business activities. Less emphasis should be placed on the
prosecution of persons who, in the course of transitory situations,
intercept communications on their own without the assistance of a
professional wiretapper or eavesdropper. This does not mean that such
persons are never to be prosecuted, but simply that this type of
prosecution is not a major thrust of the Department's enforcement program.
Most illegal interceptions fall into one of five categories: (1)
domestic relations, (2) industrial espionage, (3) political espionage,
(4) law enforcement, and (5) intra-business. The largest number of
interceptions, more than 75 percent, are in the domestic relations
category. It is the Department's policy to vigorously investigate and
prosecute illegal interceptions of communications which fall within the
industrial and political espionage, law enforcement, and intra-business
categories. Generally such violations will have interstate ramifications
which will make federal prosecution preferable to state prosecution.
Nevertheless, in cases where the federal interest is slight, it may be
appropriate to defer to state prosecution.
Illegal interceptions arising from domestic relations disputes generally
present less of a federal interest and, therefore, local prosecution is
more appropriate. However, this does not mean that federal prosecutors
should abdicate responsibility for prosecuting such interceptions.
Indeed, in view of the preponderance of this kind of interception, no
enforcement program can be effective without the initiation of some
prosecutions for deterrence purposes. United States Attorneys should
develop effective liaison with local prosecutors in order to convince
them to shoulder their share of the burden.
Within the category of domestic relations violations, primary attention
should be given to those instances in which a professional is involved,
such as a private detective, attorney, moonlighting telephone company
employee, and supplier of electronic surveillance devices. United States
Attorneys should feel free to pursue these cases or refer them to local
prosecutors; however, no professional should escape prosecution when a
prosecutable case exists.
Domestic relations violations which do not involve a professional
interceptor are the lowest priority cases for federal prosecution.
Although local prosecution is normally preferable, when local
prosecutors are unwilling to pursue the case, resort to federal
prosecution may be appropriate. Nevertheless, violations of this type
will sometimes prove to be of insufficient magnitude to warrant either
federal or state prosecution. In such cases, other measures may prove
sufficient, for example, a civil suit for damages (18 U.S.C. � 2520),
suppression of evidence (18 U.S.C. � 2515), or forfeiture of the
wiretapping or eavesdropping paraphernalia (18 U.S.C. � 2513).
Disturbed persons often suspect that they are the victims of illegal
interceptions. Consequently, a complaint which is based solely on
suspicious noises heard on the telephone normally does not merit further
investigation if the initial line check fails to produce independent
evidence of a tap.
9-60.203
State Laws
Title III does not preempt the authority of the states to legislate
concerning the interception of communications. The protection of privacy
is as much a matter for local concern as protection of persons and
property. Accordingly, the efforts of federal law enforcement personnel
should supplement, not supplant, local action.
United States Attorneys should review the applicable statutes in their
states. When there is no statute or when the existing statutes are
inadequate, United States Attorneys should work through their
federal-state law enforcement committees to obtain the enactment of
appropriate legislation. When suitable state legislation exists but is
not sufficiently used by local prosecutors, United States Attorneys
should make efforts to stimulate local enforcement.
9-60.262
Prosecutive Policy�18 U.S.C. � 2512
Flagrant violators of 18 U.S.C. � 2512 should be prosecuted vigorously,
especially violators who possess such devices in order to engage in
electronic surveillance as a business.
Less culpable first offenders and those who violate the statute because
of ignorance of the law may be appropriate subjects for more lenient
disposition. In some cases a warning may be sufficient. Nevertheless, in
all cases except, perhaps, for minor advertising violations, the United
States Attorney's Office should require that the prohibited device
either be surrendered voluntarily to the FBI or forfeited pursuant to 18
U.S.C. � 2513.
--
James M. Atkinson. President and Sr. Engineer
"Leonardo da Vinci of Bug Sweeps and Spy Hunting"
http://www.linkedin.com/profile/view?id=15178662
Granite Island Group
http://www.tscm.com/
(978) 546-3803 jm..._at_tscm.com
(978) 381-9111
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