Which Statutory Surveillance Category Did DOJs Requests Fall Into?
In neither case did DOJ assert that it had probable cause to believe a crime had occurred, or was in progress. Instead, it simply asserted that the information collected would be “relevant” to an investigation. For this reason, it was crucial which federal statutory provision – and thus which standard – would be applied. The Electronic Communications Privacy Act of 1986 (ECPA) sets forth standards for various types of electronic surveillance: The more intrusive the surveillance, the higher the burden on law enforcement to show why it is needed. (The background of this statute – and the source of the “probable cause” requirement, in some case, is the Constitution’s Fourth Amendment.) The “relevant and material to an ongoing criminal investigation” standard is a low one. It is applicable to surveillance using a pen register and a trap/trace device. But, significantly, the Communications Law Enforcement Assistance Act expressly prohibits the use of pen/trap orders for tracking subjects’ l
