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5th Circuit ruling drops restriction on wiretap authorizations

The ruling dropped a restriction on the ability of federal district judges to authorize cell phone wiretaps outside their district

The use of wiretaps on mobile devices and privacy concerns is certainly a controversial matter in the law. A new ruling out of the 5th U.S. Circuit Court of Appeals drops a restriction on the ability of federal district judges to authorize wiretaps on cellphones outside their district.

On Oct. 24, the federal appeals court issued the new ruling, withdrawing an earlier decision that law enforcement officials, especially the Drug Enforcement Administration, had warned would hinder efforts to tap the cell phones of criminal suspects.

The court’s original ruling in August curbed wiretap evidence collected during a cross-border investigation of a suspected drug-trafficking organization in southern Mississippi. As part of its investigation, the government sought wiretaps on various cell phones. The appeals court said that a federal district judge in Mississippi had no authority to authorize a wiretap for a cellphone in Texas, according to a report in The Wall Street Journal.

“The court ruled that either the phone itself or the listening post used by agents had to be in the same district as the as the judge who authorized the wiretap,” the report stated.

The phone in the case in question belonged to Richard North, who pleaded guilty to conspiracy to distribute five kilograms or more of cocaine after the federal government intercepted his calls.

“The 5th Circuit reiterated that the wiretap evidence against North should be suppressed, but only because federal agents failed to take precautions against listening to a conversation that in and of itself wasn’t criminal in nature,” the report said. “In this case, the court hadn't even received a request from federal prosecutors for a rehearing on the jurisdiction issue.”

Judge Harold R. DeMoss Jr., one of the three judges on the 5th Circuit panel, said “limiting the number of district judges authorized to issue a wiretap warrant reduces the opportunity for the government to use forum manipulation to obtain a warrant that may not be approved elsewhere,” DeMoss wrote. “We fail to see how this is not a significant protection of privacy. Territorial limitations on a district court directly implicate Congress’s intent to guard against the unwarranted use of wiretapping.


Check out these related stories InsideCounsel:

EU panel approves new rules to outlaw NSA surveillance practices

Google must face majority of claims in Gmail wiretap suit

Proportionality, text messages and smartphones on appeal

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Erin E. Harrison

Erin E. Harrison is the Editor in Chief of InsideCounsel magazine. Harrison’s professional background includes extensive expertise in both print and online media, highlighted by...

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