Wiretapping Data — And a Question

In connection with an ongoing research project, I recently reviewed the 2013 Wiretap Report, prepared by the Administrative Office of the United States Courts. It contains some information that may be of interest to readers, including:

  • 3,576 wiretaps were authorized by federal or state courts in 2013, about twice the number authorized a decade earlier.
  • It appears that a single wiretap application was declined in 2013, by a state judge.
  • About 60% were issued by state courts, mainly in California, New York, Nevada, New Jersey, Georgia, and Florida.
  • 22 were issued by North Carolina federal judges, and 22 more by North Carolina state judge panels, under the procedure set forth in G.S. 15A-291.
  • 97 percent of all wiretaps involved “portable devices,” i.e., cellular phones, rather than fixed locations.
  • 87 percent were for drug offenses.
  • The use of encryption to defeat wiretapping is on the rise, though still uncommon. 41 wiretaps involved encryption, which was unbreakable by law enforcement in 9 instances.

I’ll close with a question for readers. The state wiretapping statutes provide that applications and orders shall be filed under seal. G.S. 15A-293(d)(2) (“must be sealed”). The statutes don’t provide much guidance about unsealing, but the contents of an intercepted communication may be used in court only if the defendant has been given a copy of the application and order authorizing the interception. G.S. 15A-294(f). So, how does that play out in practice? Does the defendant receive copies of the sealed documents? Are the documents unsealed upon the conclusion of the investigation? Neither, with the result that the intercepted communications aren’t being used in court? Some combination of those? Something else?