Electronic Surveillance: An Investigator’s Point of View
N.S. Saravade, SP, ACB, CBI, Mumbai
1. A Watershed Judgement
The Supreme Court of India passed a landmark judgement on 18 December 1996, in a Writ Petition filed by the People’s Union for Civil Liberties. The Petition, which was filed in 1991 as a public interest litigation (PIL), challenged the constitutional validity of Sec.5 (2) of the Indian Telegraphic Act, 1885. The Petition, in alternative, requested provisions to include procedural safeguards to rule out arbitrariness and to prevent indiscriminate telephone tapping. This judgement of the Supreme Court, passed by the Hon’ble Justice Mr. Kuldip Singh and Justice Mr. S. Saghir Ahmed has been reported in AIR 1997 S.C.568.
The Supreme Court, in its final order, laid down elaborate guidelines for telephone tapping in terms of Sec.5 (2) of the Act. From a reading of the judgement, it is clear that the Supreme Court has considered the right of privacy of an individual as paramount and the need to protect him from the arbitrary and misguided action of the state.
It will be relevant to quote Sec.5 (2) of the Indian Telegraph Act before proceeding further:
“5(2) - On the occurrence of any public emergency, or in the interest of public safety, the Central Government or a State Government, or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do, in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order, or for preventing incitement to the commission of any offence, for reasons to be recorded in writing, by order, direct that any message or class of messages, to, or from, any person, or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or any officer thereof mentioned in the order:
Provided that press messages intended to be published in India, of correspondents accredited to the Central Government or a State Government, shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.”
The judgement has quoted certain rulings in the US Courts, which enshrine the right of privacy of an individual. Justice Frankfurter had observed in Wolf v. Colorado (1948):
“The security of one’s privacy against arbitrary intrusion by the police is basic to a free society. It is, therefore, implicit in ‘the concept of ordered liberty’ and as such enforceable against the State through the Due Process Clause.”
The judgement further goes to quote various judicial findings on the subject of personal liberties, the constitutional safeguards for the same, and the interpretation that the right to privacy is essential part of right to life. Further, the judgement also contains the analysis of the provisions of Sec.5 (2) of the Telegraph Act, and comes to the conclusion that the conditions mentioned in the Act, which are required to be fulfilled before interception of telephone messages can be authorised, are related to matters such as sovereignty and integrity of India, security of the state, friendly relations with foreign States and public order. Since the grounds mentioned are of national importance, the court has rightly prescribed an elaborate procedure to authorise telephone tapping. The salient features of the procedure are enumerated below.
1. The order under section 5(2) will be issued by the Home Secretary, Government of India and Home Secretaries of the State Governments. The copy of such an order should be sent to the Review Committee within a week.
2. The order will cease to have an effect after two months from the date of issue, unless renewed. The total period will not exceed six months.
3. The issuing authority will maintain records relating to the intercepted communications.
4. There shall be a Review Committee consisting of the Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the Central level. At the State level, the Committee will consist of the Chief Secretary, the Law Secretary and a Secretary other than the Home Secretary.
5. The Review committee will review the order passed by the authority concerned, within two months of the passing of the order, about compliance of Section 5(2).
It is expected that this will have a salutary effect in avoiding instances of politically motivated telephone surveillance and also bring in accountability and transparency in such interceptions.
2. A Different View Point
After analysing the landmark judgement from the point of view of a law enforcement agency, one would like to submit that, though the issue of politically motivated electronic surveillance and surveillance by intelligence agencies has been gone into detail, the justification and need for resorting to electronic surveillance during law enforcement, as distinguished from intelligence collection, has not been considered.
It is a well known fact that the law enforcement agencies all over the world, in their anti-crime operations, frequently apply this tool of collecting information and evidence and using the same in court proceedings. Such a facility is invaluable in offences involving organised criminal gangs indulging in economic crimes, crime involving smuggling operations, transportation and distribution of narcotic drugs, running of fire arms, illegal trafficking of men and women and similar crimes of modern genesis. The advanced means of communications are increasingly being used by criminals, to threaten the very fabric of the society. In recent weeks, one has come across reports of pre-paid Cellular Phone cards being used to place extortion demands on hapless members of the society. The lowering barriers between different nations and the increasingly easier access through international direct dialling facilities has enabled the modern criminal masterminds to run their evil empires from safe sanctuaries.
The existing legal procedures are proving increasingly inadequate in bringing the criminal to book. The protracted trial of the Mumbai Bomb Blasts is a case in point. Though the persons behind the blast and their modus operandi had been clearly identified, it has not been possible to ensure the presence of the main accused, Dawood Ibrahim, in the ambit of the court to face the charges. Nor has it meant end of the road for the Mafia segment, owing allegiance to this Don. It continues to be an evil force in Mumbai’s crime map, causing no end of worry for Mumbai police.
A graphic example of the use of cellular phones in committing crime is depicted in the recently released movie, ‘Satya’, when two groups of the same gang co-ordinate their movements in the operation to assassinate a rival gangster through cell-phones, using these as walkie-talkies. Examples in real life abound where underworld leaders, safely ensconced in jails, have run their ‘businesses’ by using cell-phones smuggled in. (On the other hand, for law enforcers, it is possible to monitor ongoing conversations and pinpoint the geographical location of the persons using the cell-phones in order to apprehend them.)
In cases involving seizures of consignments of narcotics, it has been a common experience that only the fourth or fifth level foot soldier of the Mafia is caught, and the financiers and the directors of the network are never touched because of lack of evidence.
The author has recently come across a case in which a leased data line of Videsh Sanchar Nigam Limited (VSNL) was being diverted and misused to transmit international voice telephone calls causing loss of crores of rupees to the national exchequer. In this case, conclusive evidence could have been collected, had it been possible to record the conversation going on between the persons using this illegal facility. However, the same could not be done in view of the uncertainties regarding the legalities involved. The exigencies of the case demanded that swift action be taken and there was not enough time to go through the elaborate procedure spelt out in the above-referred judgement.
3. The Legal Landscape
If one were to look into the existing legal provisions in the Code of Criminal Procedure (CrPC), one comes across Sec.92 of the Code, which is quoted below:
“92. (1) If any document, parcel or thing in the custody of a postal or telegraph authority is, in the opinion of the District Magistrate, Chief Judicial Magistrate, Court of Session or High Court wanted for the purpose of any investigation, inquiry, trial or other proceeding under this Code, such Magistrate or Court may require the postal or telegraph authority, as the case may be, to deliver the document, parcel or thing to such person as the Magistrate or Court directs.
(2) If any such document, parcel or thing, is, in the opinion or any other Magistrate, whether Executive or Judicial, or of any Commissioner of Police or District Superintendent of Police, wanted for any such purpose, he may require the postal or telegraph authority, as the case may be, to cause search to be made for and to detain such document, parcel or thing pending the order of a District Magistrate, Chief Judicial Magistrate or Court under sub-section (1).”
Thus, it is seen that this legal provision does not cover telephone signals and if an investigating agency were to approach the court having jurisdiction, with a request for a warrant to intercept electronic communications, there is every likelihood that the court would decline to entertain the same. When an FIR disclosing the commission of the cognizable offence has been registered and the FIR copy submitted to the court, there is no reason why a search warrant directed at the telephone authorities to allow/facilitate the investigating agencies in recording certain conversation from the mentioned telephone number may not be issued, when the investigating/law enforcement agency is in a position to satisfy the court, as to how the interception is likely to yield valuable evidence. An explicit legal enactment incorporating this provision in the Criminal Procedure Code will go a long way in providing the much-needed support to the law enforcement agencies in combating serious crime. The legal provision will also avoid possibility of any abuse of the power given to the investigator, by involving the field level judiciary in the process.
It may also be relevant to quote the views of the second Press Commission, as quoted by the Supreme Court in the aforesaid Judgement:
“The Second Press Commission in paras 164, 165 and 166 of its report has commented on the “tapping of telephones” as under.
Tapping of Telephones
164. It if felt in some quarters, not without reason, that not infrequently the Press in general, and its editorial echelons in particular, have to suffer tapping of telephones.
165. Tapping of telephones is a serious invasion of privacy. It is a variety of technological eavesdropping. Conversations on the telephone are often of an intimate and confidential character. The relevant statute i.e. Indian Telegraph Act, 1885, a piece of ancient legislation, does not concern itself with tapping. Tapping cannot be regarded as a tort because the law as it stands today does not know of any general right to privacy.
166. This is a hardly satisfactory situation. There are instances where apprehensions of disclosure of sources of information as well as the character of information may result in constraints on freedom of information and consequential drying up of its source. We, therefore, recommend that telephones may not be tapped except in the interest of national security, public order, investigation of crime [emphasis added] and similar objectives, under orders made in writing by the Minister concerned or an officer of rank to whom the power in that behalf is delegated…”
As can be seen from the opinion expressed by the Press Commission, telephone tapping during criminal investigation finds approval from even the Fourth Estate.
4. The Global Scenario
The world over, the legitimacy of electronic surveillance - a term, which encompasses not only telephone tapping, but also a range of other techniques, in law enforcement - is held to be beyond dispute. An extract of the 1995 resolution of the European Union will illustrate the point.
Whereas the legally authorized interception of telecommunications is an important tool for the protection of national interest, in particular national security and the investigation of serious crime;
1. Law enforcement agencies require access to the entire telecommunications transmitted, or caused to be transmitted, to and from the number or other identifier of the target service used by the interception subject. Law enforcement agencies also require access to the call-associated data that are generated to process the call.
1.1. Law enforcement agencies require access to all interception subjects operating temporarily or permanently within a telecommunications system.
1.2. Law enforcement agencies require access in cases where the interception subject may be using features to divert calls to other telecommunications services or terminal equipment, including calls that traverse more than one network or are processed by more than one network operator/service provider before completing.
1.3. Law enforcement agencies require that the telecommunications to and from a target service be provided to the exclusion of any telecommunications that do not fall within the scope of the interception authorization.
1.4. Law enforcement agencies require access to call associated data such as:
1.4.1. signalling of access ready status; 1.4.2. called party number for outgoing connections even if there is no successful connection established;
1.4.3. calling party number for incoming connections even if there is no successful connection established;
1.4.4. all signals emitted by the target, including post-connection dialled signals emitted to activate features such as conference calling and call transfer;
1.4.5. beginning, end and duration of the connection;
1.4.6. actual destination and intermediate directory numbers if call has been diverted.
1.5. Law enforcement agencies require information on the most accurate geographical location known to the network for mobile subscribers.
1.6. Law enforcement agencies require data on the specific services used by the interception subject and the technical parameters for those types of communication.
2. Law enforcement agencies require a real-time, fulltime monitoring capability for the interception of telecommunications. Call associated data should also be provided in real-time. If call associated data cannot be made available in real time, law enforcement agencies require the data to be available as soon as possible upon call termination.
3. Law enforcement agencies require network operators/service providers to provide one or several interfaces from which the intercepted communications can be transmitted to the law enforcement monitoring facility. These interfaces have to be commonly agreed on by the interception authorities and the network operators/service providers. Other issues associated with these interfaces will be handled according to accepted practices in individual countries.
3.1. Law enforcement agencies require network operators/service providers to provide call associated data and call content from the target service in a way that allows for the accurate correlation of call associated data with call content.
3.2. Law enforcement agencies require that the format for transmitting the intercepted communications to the monitoring facility be a generally available format. This format will be agreed upon on an individual country basis.
3.3. If network operators/service providers initiate encoding, compression or encryption of telecommunications traffic, law enforcement agencies require the network operators/service providers to provide intercepted communications en clair.
3.4. Law enforcement agencies require network operators/service providers to be able to transmit the intercepted communications to the law enforcement monitoring facility via fixed or switched connections.
3.5. Law enforcement agencies require that the transmission of the intercepted communications to the monitoring facility meet applicable security requirements.
4. Law enforcement agencies require interceptions to be implemented so that neither the interception target nor any other unauthorized person is aware of any changes made to fulfil the interception order. In particular, the operation of the target service must appear unchanged to the interception subject.
5. Law enforcement agencies require the interception to be designed and implemented to preclude unauthorized or improper use and to safeguard the information related to the interception.
5.1. Law enforcement agencies require network operators/service providers to protect information on which and how many interceptions are being or have been performed, and not disclose information on how interceptions are carried out.
5.2. Law enforcement agencies require network operators/service providers to ensure that intercepted communications are only transmitted to the monitoring agency specified in the interception authorization.
5.3. According to national regulations, network operators/service providers could be obliged to maintain an adequately protected record of activations of interceptions.
6. Based on a lawful inquiry and before implementation of the interception, law enforcement agencies require: (1) the interception subject's identity, service number or other distinctive identifier; (2) information on the services and features of the telecommunications system used by the interception subject and delivered by network operators/service providers; and (3) information on the technical parameters of the transmission to the law enforcement monitoring facility.
7. During the interception, law enforcement agencies may require information and/or assistance from the network operators/service providers to ensure that the communications acquired at the interception interface are those communications associated with the target service. The type of information and/or assistance required will vary according to the accepted practices in individual countries.
8. Law enforcement agencies require network operators/service providers to make provisions for implementing a number of simultaneous intercepts. Multiple interceptions may be required for a single target service to allow monitoring by more than one law enforcement agency. In this case, network operators/service providers should take precautions to safeguard the identities of the monitoring agencies and ensure the confidentiality of the investigations. The maximum number of simultaneous interceptions for a given subscriber population will be in accordance with national requirements.
9. Law enforcement agencies require network operators/service providers to implement interceptions as quickly as possible (in urgent cases within a few hours or minutes). The response requirements of law enforcement agencies will vary by country and by the type of target service to be intercepted.
10. For the duration of the interception, law enforcement agencies require that the reliability of the services supporting the interception at least equals the reliability of the target services provided to the interception subject. Law enforcement agencies require the quality of service of the intercepted transmissions forwarded to the monitoring facility to comply with the performance standards of the network operators/service providers.
It would also be interesting to examine the relevant statute in USA. The concerned extract of the U.S. Code is reproduced below.
CITE 18 USC Sec. 2518 01/03/95 EXPCITE TITLE 18 - CRIMES AND CRIMINAL PROCEDURE PART I - CRIMES CHAPTER 119 - WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS HEAD Sec. 2518. Procedure for interception of wire, oral, or electronic communications STATUTE (1) Each application for an order authorizing or approving the interception of a wire, oral, or electronic communication under this chapter shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall include the following information: (a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application; (b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) except as provided in subsection (11), a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted; (c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous; (d) a statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter; (e) a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire, oral, or electronic communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application; and (f) where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results. (2) The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application. (3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting (and outside that jurisdiction but within the United States in the case of a mobile interception device authorized by a Federal court within such jurisdiction), if the judge determines on the basis of the facts submitted by the applicant that - (a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter; (b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception; (c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; (d) except as provided in subsection (11), there is probable cause for belief that the facilities from which, or the place where, the wire, oral, or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person. (4) Each order authorizing or approving the interception of any wire, oral, or electronic communication under this chapter shall specify - (a) the identity of the person, if known, whose communications are to be intercepted; (b) the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted; (c) a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates; (d) the identity of the agency authorized to intercept the communications, and of the person authorizing the application; and (e) the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained. An order authorizing the interception of a wire, oral, or electronic communication under this chapter shall, upon request of the applicant, direct that a provider of wire or electronic communication service, landlord, custodian or other person shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such service provider, landlord, custodian, or person is according the person whose communications are to be intercepted. Any provider of wire or electronic communication service, landlord, custodian or other person furnishing such facilities or technical assistance shall be compensated therefor by the applicant for reasonable expenses incurred in providing such facilities or assistance. Pursuant to section 2522 of this chapter, an order may also be issued to enforce the assistance capability and capacity requirements under the Communications Assistance for Law Enforcement Act. (5) No order entered under this section may authorize or approve the interception of any wire, oral, or electronic communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days. Such thirty-day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or ten days after the order is entered. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of this section and the court making the findings required by subsection (3) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days. In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception. An interception under this chapter may be conducted in whole or in part by Government personnel, or by an individual operating under a contract with the Government, acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception. (6) Whenever an order authorizing interception is entered pursuant to this chapter, the order may require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the judge may require. (7) Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that - (a) an emergency situation exists that involves - (i) immediate danger of death or serious physical injury to any person, (ii) conspiratorial activities threatening the national security interest, or (iii) conspiratorial activities characteristic of organized crime, that requires a wire, oral, or electronic communication to be intercepted before an order authorizing such interception can, with due diligence, be obtained, and (b) there are grounds upon which an order could be entered under this chapter to authorize such interception, may intercept such wire, oral, or electronic communication if an application for an order approving the interception is made in accordance with this section within forty-eight hours after the interception has occurred, or begins to occur. In the absence of an order, such interception shall immediately terminate when the communication sought is obtained or when the application for the order is denied, whichever is earlier. In the event such application for approval is denied, or in any other case where the interception is terminated without an order having been issued, the contents of any wire, oral, or electronic communication intercepted shall be treated as having been obtained in violation of this chapter, and an inventory shall be served as provided for in subsection (d) of this section on the person named in the application. (8)(a) The contents of any wire, oral, or electronic communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire, oral, or electronic communication under this subsection shall be done in such a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. Custody of the recordings shall be wherever the judge orders. They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for ten years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections (1) and (2) of section 2517 of this chapter for investigations. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom under subsection (3) of section 2517. (b) Applications made and orders granted under this chapter shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. Such applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for ten years. (c) Any violation of the provisions of this subsection may be punished as contempt of the issuing or denying judge. (d) Within a reasonable time but not later than ninety days after the filing of an application for an order of approval under section 2518(7)(b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of - (1) the fact of the entry of the order or the application; (2) the date of the entry and the period of authorized, approved or disapproved interception, or the denial of the application; and (3) the fact that during the period wire, oral, or electronic communications were or were not intercepted. The judge, upon the filing of a motion, may in his discretion make available to such person or his counsel for inspection such portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent jurisdiction the serving of the inventory required by this subsection may be postponed. (9) The contents of any wire, oral, or electronic communication intercepted pursuant to this chapter or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a Federal or State court unless each party, not less than ten days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved. This ten-day period may be waived by the judge if he finds that it was not possible to furnish the party with the above information ten days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving such information. (10)(a) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that - (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval. Such motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter. The judge, upon the filing of such motion by the aggrieved person, may in his discretion make available to the aggrieved person or his counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interests of justice. (b) In addition to any other right to appeal, the United States shall have the right to appeal from an order granting a motion to suppress made under paragraph (a) of this subsection, or the denial of an application for an order of approval, if the United States attorney shall certify to the judge or other official granting such motion or denying such application that the appeal is not taken for purposes of delay. Such appeal shall be taken within thirty days after the date the order was entered and shall be diligently prosecuted. (c) The remedies and sanctions described in this chapter with respect to the interception of electronic communications are the only judicial remedies and sanctions for nonconstitutional violations of this chapter involving such communications. (11) The requirements of subsections (1)(b)(ii) and (3)(d) of this section relating to the specification of the facilities from which, or the place where, the communication is to be intercepted do not apply if - (a) in the case of an application with respect to the interception of an oral communication - (i) the application is by a Federal investigative or law enforcement officer and is approved by the Attorney General, the Deputy Attorney General, the Associate Attorney General, an Assistant Attorney General, or an acting Assistant Attorney General; (ii) the application contains a full and complete statement as to why such specification is not practical and identifies the person committing the offense and whose communications are to be intercepted; and (iii) the judge finds that such specification is not practical; and (b) in the case of an application with respect to a wire or electronic communication - (i) the application is by a Federal investigative or law enforcement officer and is approved by the Attorney General, the Deputy Attorney General, the Associate Attorney General, an Assistant Attorney General, or an acting Assistant Attorney General; (ii) the application identifies the person believed to be committing the offense and whose communications are to be intercepted and the applicant makes a showing of a purpose, on the part of that person, to thwart interception by changing facilities; and (iii) the judge finds that such purpose has been adequately shown. (12) An interception of a communication under an order with respect to which the requirements of subsections (1)(b)(ii) and (3)(d) of this section do not apply by reason of subsection (11) shall not begin until the facilities from which, or the place where, the communication is to be intercepted is ascertained by the person implementing the interception order. A provider of wire or electronic communications service that has received an order as provided for in subsection (11)(b) may move the court to modify or quash the order on the ground that its assistance with respect to the interception cannot be performed in a timely or reasonable fashion. The court, upon notice to the government, shall decide such a motion expeditiously. …. SECREF SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2511, 2516, 2519, 2520, 2701, 2707 of this title. .
The following section gives the list of offences for which electronic surveillance may be authorised by the U.S. courts.
CITE 18 USC Sec. 2516 01/03/95 EXPCITE TITLE 18 - CRIMES AND CRIMINAL PROCEDURE PART I - CRIMES CHAPTER 119 - WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS HEAD Sec. 2516. Authorization for interception of wire, oral, or electronic communications STATUTE (1) The Attorney General, Deputy Attorney General, Associate Attorney General, (FOOTNOTE 1) or any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in the Criminal Division specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of - (FOOTNOTE 1) See 1984 Amendment note below. (a) any offense punishable by death or by imprisonment for more than one year under sections 2274 through 2277 of title 42 of the United States Code (relating to the enforcement of the Atomic Energy Act of 1954), section 2284 of title 42 of the United States Code (relating to sabotage of nuclear facilities or fuel), or under the following chapters of this title: chapter 37 (relating to espionage), chapter 105 (relating to sabotage), chapter 115 (relating to treason), chapter 102 (relating to riots), chapter 65 (relating to malicious mischief), chapter 111 (relating to destruction of vessels), or chapter 81 (relating to piracy); (b) a violation of section 186 or section 501(c) of title 29, United States Code (dealing with restrictions on payments and loans to labor organizations), or any offense which involves murder, kidnapping, robbery, or extortion, and which is punishable under this title; (c) any offense which is punishable under the following sections of this title: section 201 (bribery of public officials and witnesses), section 215 (relating to bribery of bank officials), section 224 (bribery in sporting contests), subsection (d), (e), (f), (g), (h), or (i) of section 844 (unlawful use of explosives), section 1032 (relating to concealment of assets), section 1084 (transmission of wagering information), section 751 (relating to escape), section 1014 (relating to loans and credit applications generally; renewals and discounts), sections 1503, 1512, and 1513 (influencing or injuring an officer, juror, or witness generally), section 1510 (obstruction of criminal investigations), section 1511 (obstruction of State or local law enforcement), section 1751 (Presidential and Presidential staff assassination, kidnapping, and assault), section 1951 (interference with commerce by threats or violence), section 1952 (interstate and foreign travel or transportation in aid of racketeering enterprises), section 1958 (relating to use of interstate commerce facilities in the commission of murder for hire), section 1959 (relating to violent crimes in aid of racketeering activity), section 1954 (offer, acceptance, or solicitation to influence operations of employee benefit plan), section 1955 (prohibition of business enterprises of gambling), section 1956 (laundering of monetary instruments), section 1957 (relating to engaging in monetary transactions in property derived from specified unlawful activity), section 659 (theft from interstate shipment), section 664 (embezzlement from pension and welfare funds), section 1343 (fraud by wire, radio, or television), section 1344 (relating to bank fraud), sections 2251 and 2252 (sexual exploitation of children), sections 2312, 2313, 2314, and 2315 (interstate transportation of stolen property), section 2321 (relating to trafficking in certain motor vehicles or motor vehicle parts), section 1203 (relating to hostage taking), section 1029 (relating to fraud and related activity in connection with access devices), section 3146 (relating to penalty for failure to appear), section 3521(b)(3) (relating to witness relocation and assistance), section 32 (relating to destruction of aircraft or aircraft facilities), section 1963 (violations with respect to racketeer influenced and corrupt organizations), section 115 (relating to threatening or retaliating against a Federal official), and section 1341 (relating to mail fraud), section 351 (violations with respect to congressional, Cabinet, or Supreme Court assassinations, kidnapping, and assault), section 831 (relating to prohibited transactions involving nuclear materials), section 33 (relating to destruction of motor vehicles or motor vehicle facilities), section 175 (relating to biological weapons), or section 1992 (relating to wrecking trains); (d) any offense involving counterfeiting punishable under section 471, 472, or 473 of this title; (e) any offense involving fraud connected with a case under title 11 or the manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic drugs, marihuana, or other dangerous drugs, punishable under any law of the United States; (f) any offense including extortionate credit transactions under sections 892, 893, or 894 of this title; (g) a violation of section 5322 of title 31, United States Code (dealing with the reporting of currency transactions); (h) any felony violation of sections 2511 and 2512 (relating to interception and disclosure of certain communications and to certain intercepting devices) of this title; (i) any felony violation of chapter 71 (relating to obscenity) of this title; (j) any violation of section 60123(b) (relating to destruction of a natural gas pipeline) or 46502 (relating to aircraft piracy) of title 49; (k) any criminal violation of section 2778 of title 22 (relating to the Arms Export Control Act); (l) the location of any fugitive from justice from an offense described in this section; or (FOOTNOTE 2) (FOOTNOTE 2) So in original. The word ''or'' probably should not appear. (m) any felony violation of sections 922 and 924 of title 18, United States Code (relating to firearms); (n) any violation of section 5861 of the Internal Revenue Code of 1986 (relating to firearms); and (FOOTNOTE 3) (FOOTNOTE 3) So in original. Probably should be ''or''. (o) any conspiracy to commit any offense described in any subparagraph of this paragraph. (2) The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire, oral, or electronic communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire, oral, or electronic communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of the foregoing offenses. (3) Any attorney for the Government (as such term is defined for the purposes of the Federal Rules of Criminal Procedure) may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant, in conformity with section 2518 of this title, an order authorizing or approving the interception of electronic communications by an investigative or law enforcement officer having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of any Federal felony. …. SECREF SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2511, 2518 of this title; title 28 section 594.
The US Government passed the Communications Assistance for Law Enforcement Act (CALEA) to create the legal framework for creating infrastructure to ensure lawful electronic surveillance to cater for the revolutionary changes in communications technology. It was enacted in 1994 “to ensure that ongoing technological changes in the telecommunications industry would not compromise the ability of federal, state, and local law enforcement agencies to engage in lawful surveillance activities. To that end, Section 103 of CALEA explicitly obligates telecommunications carriers to ensure that their equipment, facilities, and services are capable of expeditiously isolating and delivering to law enforcement agencies all communications and call-identifying information that law enforcement is authorized to acquire. CALEA was passed primarily at the behest of the FBI and other law enforcement agencies, despite opposition from the telecommunications industry, in order to ensure that lawful electronic surveillance as an invaluable crime-fighting tool is not thwarted by technological and structural changes in the telecommunications industry.”
While advocating the capacity creation under CALEA, James K. Kallstrom, Assistant Director of the FBI stated as follows. "The purpose of CALEA, and the FBI's purpose in developing the estimates, is to help protect the American people from the worst crimes--terrorism, drug trafficking, violence of all types. Court-approved electronic surveillance is one of law enforcement's most important investigative techniques.
Telephone systems are routinely used by the worst and most violent criminals to commit the worst and most violent crimes. Long-standing federal law allows for the tightly controlled use of court-authorized electronic surveillance in the investigation of the most serious violent offenses only when other investigative techniques will not work, when other investigative techniques are too dangerous, and when there is probable cause to believe that telephone communications are being used to carry out serious crimes.
In many cases, there is no substitute of electronic surveillance in gathering evidence, preventing crimes, solving crimes, and bringing the violent to justice. In the past 14 years, court-approved electronic surveillance has been directly responsible for obtaining the conviction of more that 26,000 dangerous felons. This does not include the hundreds of thousands of other investigations that have succeeded in part because of pen registers and trap and traces."
Similar legal provisions exist in other countries. However, the above quoted legal provisions should suffice to bring home the seriousness with which electronic surveillance is treated as a tool for investigation.
6. The Need of the Hour
The tidal wave of technology is going around the globe, rapidly obliterating the artificial boundaries of geography and culture. Economically, the world is becoming one entity. The modern technology of communication is at the vanguard of this revolution. India is also poised at the threshold of swift changes in its economic and social dynamics. We have seen explosive growth in telecom services and new gadgets like cellphones and pagers are already familiar items of daily life. The number of Internet users is expected to rise exponentially and E-mail is no longer an item of curiosity value.
It is important for law enforcement agencies to not only acquire the right technology to cope with the ensuing changes, but also to develop the strategy to use the technology effectively and obtain the legal wherewithal to do so. The criminal should not manage to elude the sword of Justice and crime must not pay. Clinging to traditions, when it is not called for, and not adopting new thinking will imperil the capacity of the State to keep itself aware and alive to the need of the hour.
 Written in September, 1998, this article was published in CBI Bulletin of July, 1999.