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Part 9. Criminal Investigation

Chapter 4. Investigative Techniques

Section 6. Surveillance and Non-Consensual Monitoring

9.4.6  Surveillance and Non-Consensual Monitoring

9.4.6.1  (09-24-2003)
Overview

  1. Enforcement activities include a wide spectrum of Criminal Investigation (CI) activities. Surveillance is an enforcement technique used to obtain information, leads, and evidence. Criminal Investigation surveillance techniques include the following types of surveillance:

    1. physical/visual

    2. electronic

    3. internet

    4. video

    5. aerial surveillance

9.4.6.2  (09-24-2003)
General

  1. The following applies to CI physical/visual surveillance techniques:

    1. Surveillance may be conducted as part of a subject, primary, or general investigation.

    2. A journey level special agent (GS-1811-12 and above) may conduct surveillance as deemed necessary. A special agent below the journeyman level must obtain prior approval from the Supervisory Special Agent (SSA) for all surveillance activity except when the occasion arises where immediate surveillance is necessary and the SSA cannot be contacted. In this instance, the special agent should advise the SSA as soon as practicable of the circumstances that precluded obtaining prior approval.

    3. If, during the surveillance, the special agent must assume an identity other than his/her own requiring cover documents, approval for use of these documents must be obtained from the Director, Field Operations or his/her designee. (See LEM 9, Criminal Investigation)

    4. Surveillance conducted in a high crime area, either on foot or in a vehicle, requires the participation of at least two special agents. Surveillance requiring the use of a vehicle should be conducted in a government owned vehicle that has two-way radio equipment.

9.4.6.2.1  (09-24-2003)
Documentation of Surveillance Activity

  1. The following documentation is required:

    1. Daily notes of pertinent surveillance activity must be prepared by all participants.

    2. Written summary of daily notes must be prepared at the completion of surveillance.

9.4.6.2.2  (09-24-2003)
Reasons for Conducting Surveillance

  1. The following are some of the reasons for conducting surveillance:

    1. to obtain evidence of a crime or to identify persons who have indicated they have committed or intend to commit a crime

    2. to locate persons by watching locations and associates historically visited by the subject of the surveillance

    3. to obtain detailed information about a subject's activities

    4. to corroborate the reliability of informants

    5. to locate hidden property

    6. to obtain probable cause necessary to secure a search warrant

    7. to obtain information for later use in interrogations or interviews

    8. to develop leads and information received from other sources

    9. to know, at all times, the whereabouts of an individual

9.4.6.3  (03-02-1999)
Surveillance and Undercover Distinguished

  1. It is important to distinguish between investigative techniques used in surveillance activities and certain undercover operations.

9.4.6.3.1  (09-24-2003)
Surveillance Characteristics

  1. The following characteristics apply to surveillance activities.

    1. The purpose is to observe ongoing activities and individuals.

    2. Interaction with subjects and third parties is usually not initiated.

    3. Conversations are incidental to the surveillance.

    4. Conversations are not monitored or recorded.

    5. The special agent has limited cover. The purpose of the cover is to protect the integrity of the surveillance.

    6. Local special agents are used.

    7. Special agents need not be trained in undercover techniques.

    8. See section 9.4.6.8 concerning internet surveillance.

  2. Surveillance activity bears little resemblance to an undercover operation. The following situations indicate the surveillance activity has evolved into an undercover operation:

    1. reliance on cover identities increases

    2. contacts with subjects and other individuals are more in-depth

    3. agents become participants, rather than mere observers of the activities of interest

  3. The SAC, is responsible for ensuring surveillance activities do not evolve into undercover operations without first obtaining the authorization required in IRM 9.4.8, Undercover Operations.

9.4.6.3.2  (09-24-2003)
Undercover Operation Characteristics

  1. The following characteristics apply to undercover operations:

    1. The purpose is to initiate or participate in activities with identified subjects or objectives.

    2. Interaction with subjects and third parties is sought.

    3. Undercover agents or other authorized individuals initiate and direct conversations to further the objectives of the operation.

    4. Conversations may be monitored and recorded.

    5. A covert identity is required to obtain evidence. This cover is used as a basis for contacts with targets or witnesses. However, the lack of a documented cover does not mean the activities engaged in do not constitute an undercover operation.

9.4.6.4  (09-24-2003)
Surveillance at Public Meetings

  1. Attendance at public meetings that promote actions in violation of the Internal Revenue Code is to be distinguished from attendance at peaceful demonstrations against the Sixteenth Amendment. Treasury Department policy directs that no information should be collected at peaceful demonstrations which involve the exercise of First Amendment rights without first contacting the office of the Under Secretary of the Treasury for Enforcement. In such situations, the SAC, with the concurrence of the Director, Field Operations will notify the Chief, CI, who will contact the Under Secretary of the Treasury for Enforcement.

  2. At public meetings that promote actions in violation of the Internal Revenue Code, surveillance activities will be limited to:

    1. identifying the leading figures at the meeting

    2. obtaining information concerning methods used to violate tax laws

  3. Special agents may identify those individuals who attend the meetings and who admit or indicate they:

    1. have committed or intend to commit a tax violation or other crime

    2. advocate that others commit violations of the tax law or commit other crimes

    3. advocate the use of threat or assault tactics in dealing with IRS personnel or other Federal, state, or local law enforcement personnel

  4. An example of an appropriate surveillance technique for identifying individuals who attend public meetings and who admit or advocate the violation of laws or express an intent to do so, is as follows:

    An unidentified member in the audience at a public meeting states that he/she has not filed Federal income tax returns for several years, and further states he/she never intends to file such returns again. Special agents may observe this person enter an automobile and record the license plate number on the automobile in order to attempt to properly identify him/her. If there is a likelihood the individual is driving a borrowed or leased automobile or is riding with someone else, the agents may continue the surveillance in an attempt to establish a positive identification.

9.4.6.4.1  (09-24-2003)
Public Meetings Defined

  1. The following criteria may be considered to determine whether or not a meeting is public:

    1. where the meeting will be held

    2. if members of the press will be present or involved

    3. if there are any unreasonable restrictions upon entry

    4. if public notice of the meeting has been given

9.4.6.4.2  (09-24-2003)
Recording The Proceedings Of Public Meetings

  1. Recording the proceedings of a public meeting is a permissible means of surveillance.

  2. Consensual monitoring authorization must be obtained pursuant to IRM 9.4.7, Consensual Monitoring.

9.4.6.5  (03-02-1999)
Surveillance Checklist

  1. The surveillance team leader is responsible for reviewing the surveillance checklist. If the surveillance involves an undercover operation, refer to the applicable undercover checklist.

9.4.6.6  (09-24-2003)
Risk Assessment Guide

  1. A risk assessment must be completed to assess the potential risk of the surveillance activity.

  2. The assigned special agent should comment on each of the considerations set forth in the risk assessment guide and record the level of risk (low, medium, or high) for each consideration.

  3. The SSA and the SAC must review the completed risk assessment guide and determine if the operation can be accomplished safely.

  4. If the operation cannot be accomplished safely, the special agent should abandon any further planning activity.

  5. All approved risk assessment forms should be maintained in the investigative folder or filed electronically.

9.4.6.7  (09-24-2003)
Electronic Surveillance

  1. The following subsection refers to electronic surveillance and the monitoring of electronic communications.

9.4.6.7.1  (09-24-2003)
General

  1. The "Electronic Communications Privacy Act" (ECPA) of 1986, Pub. L. No.99-508, 100 Stat.1848, amended Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 USC §2510 et. seq.). This legislation significantly revised Title III to reflect technological advances in electronic communications. It also added provisions (1) specifying how government entities may obtain access to stored electronic communications; and (2) updating the provisions relating to pen registers and trap-and-trace devices. The ECPA provisions amended or modified the following statutes:

    1. Title I-Interceptions of Communications and Related Matters (codified in 18 USC §2510 et. Seq.) As originally enacted, the wiretap statute regulated the real-time acquisition of "wire" and "oral" communications. A "wire communication" is the transmission of human voice over a "wire" ( "telephone circuit" ) or other means of electronic communication. An "oral communication" is a conversation between or among individuals in circumstances in which there exists and expectation that the communication will not be "intercepted." The ECPA added "electronic communications" to the wiretap statute and provided slightly different rules for obtaining orders for the real-time acquisition of such communications.

    2. The ECPA provides rules both for the real-time acquisition of wire, oral, or electronic communications (treated in this section) and the acquisition of stored wire and electronic communications (discussed in subsection 9.4.6.7.3).

  2. Orders for real time interceptions, or "wiretaps" , have traditionally been referred to as "Title IIIs" or "T-IIIs" because the authority to obtain such orders originated in Title lll of the Omnibus Crime Control and Safe Streets Act of 1968. This manual refers to such orders simply as "wiretap" orders.

    1. Title II-Stored Wire and Electronic Communications and Transactional Records Access (codified in 18 USC §2701 et. seq.).

    2. Title III-Pen Registers and Trap-and-Trace Devices (codified in 18 USC §3121 et. seq.).

    3. On October 25, 1994, Congress enacted The Communications Assistance for Law Enforcement Act, Pub. L. 103-414, Oct. 25, 1994, which amended certain provisions of Titles I, II, and III of ECPA and became effective on January 6, 1995. The Communications Assistance for Law Enforcement Act is intended to preserve the government's ability, pursuant to court order or other lawful authorization, to intercept communications involving advanced technologies (e.g., digital or wireless transmission modes), or features and services (e.g., call forwarding, speed dialing and conference calling), while protecting the privacy of communications and without impending the introduction of new technologies, features and services. To guarantee that law enforcement agencies can continue to conduct authorized interception in the future, the Communications Assistance for Law Enforcement Act requires telecommunications carriers to ensure that their systems have the capability to: (1) isolate the content of targeted communications transmitted by the carrier within the carrier's service area; (2) isolate the information identifying the origin and destination of targeted communications; (3) provide intercepted communications and call identifying information to law enforcement agents so they can be transmitted over lines or facilities leased by law enforcement agents to a location away from the carrier's premises; and, (4) carry out interceptions unobtrusively, so targets are unaware of the interception and in a manner which does not compromise the privacy and security of other communications. The Communications Assistance for Law Enforcement Act allows the industry to develop the standards to implement the equipment.

    4. On October 25, 2001, Congress passed the United Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) of 2001, Pub.L. 107-56, Oct. 25, 2001, which became effective on October 26, 2001. The purpose of the USA Patriot Act is to deter and punish domestic and international terrorist acts as well as to enhance law enforcement investigatory tools. Title II (Enhanced Surveillance Procedures) of the USA Patriots Act amends certain provisions of ECPA, the Communications Assistance for Law Enforcement Act and 18 USC Chapters 119 (Wire and Electronic Communications Interception of Oral Communications), 121 (Stored Wire and Electronic Communications and Transactional Records Access) and 206 (Pen Registers and Trap and Trace Devices. It must be noted that many of the provisions added or amended by the USA Patriot Act have a sunset date of December 31, 2005.

  3. Interception of wire, oral, or electronic communications without the consent of a party to the communication.

    1. Non-consensual Monitoring of Oral and Wire Communications -
      Non-consensual interception of oral and wire communications is restricted to investigations of the felonies listed in 18 USC §2516. That list does not include tax crimes. However, the felonies listed in 18 USC §2516 include 18 USC §1956 and §1957 (money laundering offenses) and offenses for which 31 USC §5322 provides the criminal penalties related to currency reporting offenses. IRS policy restricts the use of non-consensual interception of oral and wire communications to "extremely limited situations" and only in "significant money laundering investigations."

    2. Non-consensual monitoring of Electronic Communications -
      18 USC §2516(3) authorizes the real time interception of electronic communications to investigate any federal felony.

    3. Access to Stored Electronic Communications -
      18 USC §2703 specifies the means by which law enforcement (government) may obtain access to stored electronic communications and transactional records.

    4. 18 USC §3122 authorizes the use of pen registers and trap and trace devices for investigations of all federal felonies.

9.4.6.7.1.1  (09-24-2003)
Restrictions on Electronic Surveillance Techniques

  1. Permanent installation of concealed microphones, recording equipment and similar devices in IRS offices is prohibited. Temporary installations are permitted only when authorized in accordance with the requirements for consensual and non-consensual monitoring.

  2. The use of transmitters or other devices to assist in trailing vehicles or personal property is permitted as described in subsection 9.4.6.7.5 (See 18 USC §3117.)

  3. Although mechanical devices may be used to intercept, overhear, or record conversations at public telephones pursuant to procedures outlined in 18 USC §2510, et seq., extreme care must be exercised to segregate conversations of innocent third parties from conversations of the identified subject(s). In each instance of monitoring, the equipment must be installed immediately prior to monitoring the identified subject and removed immediately thereafter. Due to the potential for inadvertent monitoring of innocent third party conversations and the elevated standard of probable cause required for this type of monitoring, it is rarely used; however, extreme caution should be exercised when this technique is utilized.

  4. Miniature recorders and radio transmitters will not be used surreptitiously in conducting routine surveys and interviews with third parties unless consensual monitoring is authorized.

  5. Field offices may not purchase, fabricate, or have manufactured any equipment or accessories designed to acquire communications of any type without approval from the Director, Equipment and Technology Evaluation, or designee. The acquiring field office shall enter all such equipment into the Criminal Investigation Equipment Control System (CIECS).

  6. Permission to employ eavesdropping devices may only be granted to special agents or to personnel acting under their direction. The approval process, prohibitions and limitations outlined in this section apply equally to non-IRS personnel who act at the direction of special agents.

  7. Title 18 prohibits the use of radio scanners to listen to transmissions on wireless telephone frequencies (e.g. mobile telephones or cordless telephones). Monitoring of wireless transmissions requires a wiretap order pursuant to 18 USC §2518. Normally, citizens band radio transmissions may be monitored unless there is reason to believe that a base station is using a wire link supplied by a common communications carrier.

  8. A search warrant issued pursuant to Rule 41, Federal Rules of Criminal Procedure, is required to obtain evidence that cannot be observed from a public place with the naked eye. Federal statutes and the Supreme Court have placed restrictions on the use of sense enhancing devices. The local Criminal Tax attorney should be consulted prior to the use of such technology.

9.4.6.7.2  (09-24-2003)
Real Time - lnterceptions of Communications and Related Matters

  1. The "wiretap statute" , 18 USC §2510 et seq, governs the interception of wire, oral and electronic communications in transmission (i.e. "real-time" interceptions) through the use of electronic, mechanical, or other devices.

9.4.6.7.2.1  (09-24-2003)
Definitions

  1. Contents are defined by 18 USC §2510(8) to include any information concerning the substance, purport, or meaning of that communication.

  2. A wire communication is defined as a communication that involves the human voice as transmitted through the use of wire, cable, or similar method between the points of origin and reception. (See 18 USC §2510(1) and (18)) In addition, tone-and-voice pagers are included within the category of wire communication, and interception of the human voice segment must be treated the same as a wire interception. A conversation on a telephone is a wire communication.

  3. An oral communication is "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectations, but this term does not include any electronic communication" . A conversation between two or more individuals who have a reasonable expectation that the conversation will not be intercepted, is an oral communication.

  4. An electronic communication is defined as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic, or photo-optical system that affects interstate or foreign commerce." The term electronic communication does not include communications containing the human voice. An electronic communication includes, the "real-time" point-to-point transmission of, for example, digital display pager information, electronic mail, computer-to-computer transmissions, facsimiles, transmissions, and private video transmissions (but not video surveillance).

  5. Interception means "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use on any electronic, mechanical, or other device."

  6. Electronic, mechanical or other device is defined by 18 USC §2510(5) to include "any device or apparatus which can be used to intercept a wire, oral or electronic communication other than":

    1. Any telephone or telegraph instrument, equipment or facility, or any component thereof (i) furnished to the subscriber or user by a provider of wire or electronic communication service and used by the subscriber or user... in the ordinary course of its business or (ii) being used by a provider...in the ordinary course of its business or by an investigative or law enforcement officer in the ordinary course of his duties.

    2. A hearing aid or similar device being used to correct subnormal hearing to no better than normal.

    Note:

    Merely overhearing a conversation, by listening in on an extension telephone or using a "normal" hearing aid, is outside the definition of an interception because the telephone set and hearing aid are excluded from the definition of an "electronic or mechanical device" .

  7. Consent is defined to mean that one or more of the parties to a wire, oral or electronic communication has given his/her prior permission that such communication may be intercepted. In the federal system, one party’s consent is needed, even if the other parties to the conversation are unaware that the communication is being intercepted or recorded.

9.4.6.7.2.2  (09-24-2003)
Access to "Real-Time" Oral Communication - Wiretaps

  1. A "wiretap" is the acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device where an expectation exists that the communication is not subject to interception. See subsection 9.4.6.7.1(2) concerning offenses for which wiretaps may be authorized.

  2. The following are not covered by the wiretap statute:

    1. use of pen registers or trap and trace devices. Authority for the use of these techniques is found in 18 USC §3122 and §3117

    2. overhearing of conversations without the aid of electronic, mechanical, or other devices

    3. radio or television broadcasts readily accessible by the public

    4. tone-only pagers per 18 USC §2510(12)(B)

    5. electronic Tracking Devices, also called transponders or beepers

    6. marine and aeronautical communication systems per 18 USC §2511(2)(g)(ii)(IV)

    7. public safety radio systems

    8. amateur radio operator services, citizens band radio; general mobile radio services

    9. electronic communications which are readily accessible by the general public

    10. physical/visual surveillance

    11. individuals’ use of telephone extensions

  3. Consensual monitoring where one of the parties consents to the monitoring of the conversation or internet communication, is addressed and specifically excepted out of the wiretap statute.

9.4.6.7.2.3  (09-24-2003)
Disclosure and Derivative Use Orders

  1. An order to intercept wire, oral, or electronic communication may be obtained only to investigate the offenses enumerated in 18 USC §2516 (Title 26 offenses are not included). However, if the contents of intercepted wire, oral, or electronic communications relate to other criminal acts, that evidence may be used by other law enforcement officers (including CI special agents of CI) in furtherance of their investigations including Title 26 offenses. Title 18 USC §2517 sets forth a statutory scheme under which disclosure and use of intercepted oral, wire, or electronic communications are permitted.

  2. 18 USC §2517(1) permits law enforcement officers who obtain intercepted wire, oral, or electronic communications (obtaining officers) to disclose such evidence to other law enforcement officers (receiving officers) as appropriate in the performance of the obtaining and receiving officers’ duties.

  3. 18 USC §2517(2) permits law enforcement officers who have lawfully obtained or received intercepted wire, oral, or electronic communications or evidence derived from intercepted wire, oral, or electronic communications, to use the contents of that evidence to the extent such use is appropriate to the proper performance of his/her official duties.

  4. 18 USC §2517(3) permits law enforcement officers who have obtained or received information from intercepted wire, oral, or electronic communications or evidence derived from intercepted communications, to disclose such information while giving testimony under oath in any Federal or state, criminal or civil proceeding. This includes testimony before a grand jury.

  5. 18 USC §2517(5) requires a court order, referred to as a "derivative use order," be obtained prior to any disclosure as defined in 18 USC §2517(3). Such an order must be obtained prior to any law enforcement officer making any testimonial disclosure of information or evidence relating to intercepted wire, oral, or electronic communications, or evidence derived from intercepted communications. Such an application should be made as soon as practicable. The derivative use order must be based upon the court's finding that the information and evidence to be disclosed was otherwise properly intercepted. Failure to obtain such an order can result in dismissal of the case, or liability for civil damages from the unauthorized disclosure.

9.4.6.7.2.4  (09-24-2003)
Evaluation of Wiretap Information

  1. As soon as practicable, information or evidence received by CI special agents from other law enforcement officers that originated from intercepted wire, oral, or electronic communications, or evidence derived from the intercepted communications, transcripts, will be referred to the SAC, or designee, who should immediately evaluate the potential for criminal and civil tax purposes.

  2. If it is apparent that the information or evidence is likely to or will be used by IRS in a criminal or civil judicial proceeding, the SAC, or his/her designee should immediately ascertain whether an 18 USC §2517(5) order covering use by the IRS has been obtained. If an order has not yet been obtained, the SAC or his/her designee should contact and consult with the supervisory Assistant United States Attorney (AUSA) to ensure the order is obtained prior to disclosure.

9.4.6.7.2.5  (09-24-2003)
Wiretap Approval Process

  1. Three situations exist where approval is required for IRS CI special agents' participation in investigations where non-consensual monitoring of voice communications occurs:

    1. When CI special agents are present in the wire room and do NOT have the responsibility of monitoring conversations as they occur.

    2. Criminal Investigation monitoring of non-consensual conversations where an agent from another agency prepared the affidavit in support of an application for monitoring.

    3. Criminal Investigation monitoring of non-consensual conversations where an agent from CI prepared the affidavit in support of an application for monitoring.

9.4.6.7.2.5.1  (09-24-2003)
Criminal Investigation Special Agents Present in the Wire Room, but DO NOT have the Responsibility of Monitoring Conversations

  1. IRS CI special agents can provide valuable assistance in some investigations using the non-consensual monitoring technique where the assistance DOES NOT involve the real-time monitoring of conversations. The duties may require a scheduled presence in the wire room and require significant resources. The duties include oversight of occurring activity, issuing surveillance assignments, reviewing previously recorded conversations, etc.

  2. Approval of these situations is required in writing by the SAC and must address the significance of the investigation and the resource issues concerning staffing and any CI equipment to be used during the operation.

9.4.6.7.2.5.2  (09-24-2003)
Criminal Investigation Monitoring of Non-Consensual Conversations When Criminal Investigation IS NOT the Affiant Agency

  1. A copy of the affidavit and a memorandum from the field office through the Director, Field Operations to the Office of Special Investigative Techniques (CI:OPS:SIT) is required. The memorandum must include the following information:

    1. The background of the investigation to date including the other participating Federal, state and local law enforcement agencies involved in the investigation. The name of the criminal organization and the criminal offenses which are being investigated.

    2. The significance of the target, organization, or compliance problem being investigated. The type of phone line, telephone number(s) to be monitored, and subscriber information should be mentioned; such as, telephone line, cellular telephone, etc.

    3. Financial information; such as, how the organization launders proceeds (amount of money being wired, increments, and currency seized to date).

    4. Why CI participation in the monitoring is necessary; such as, due to the volume of calls, CI has the financial expertise to analyze the information as it is being received to prevent minimization of conversations that other officers or agents might not properly recognize as being material to the financial aspects of the investigation.

    5. The amount of CI resources needed. This number should include separate categories covering the number of special agents actually monitoring the calls and the number of special agents who will assist in surveillance or related support duties.

  2. Upon receipt of the affidavit and memorandum, SIT will prepare a request for the concurrence of the Chief, CI, and a routing slip seeking the approval from the Deputy Commissioner, IRS.

9.4.6.7.2.5.3  (09-24-2003)
Criminal Investigation Monitoring of Non-Consensual Conversations When Criminal Investigation IS the Affiant Agency

  1. A copy of the affidavit and a memorandum from the field office, through the Director, Field Operations, to the Office of Special Investigative Techniques is required prior to obtaining the court order. The memorandum must include the following information:

    1. The background of the investigation to date including the other participating Federal, state and local law enforcement agencies involved in the investigation. The name of the criminal organization and the criminal offenses which are being investigated.

    2. The significance of the target, organization, or compliance problem being investigated.

    3. The type of phone line, telephone number(s) to be monitored, and subscriber information should be mentioned; such as, telephone line, cellular telephone, etc.

    4. Financial information should be included, such as how the organization launders proceeds (amount of money being wired, increments, and currency seized to date).

    5. The opinion and any recommendations from the Field office’s Criminal Tax attorney.

    6. Why CI participation in the monitoring is necessary; such as, due to the volume of calls, CI has the financial expertise to analyze the information as it is being received to prevent minimization of conversations that other officers or agents might not properly recognize as being material to the financial aspects of the investigation.

    7. The amount of CI resources needed should be listed in the memorandum. This number should include separate categories covering the number of special agents actually monitoring the calls and the number of special agents who will assist in surveillance or related support duties.

  2. Upon receipt of the affidavit and memorandum, SIT will forward the affidavit to Division Counsel/Associate Chief Counsel (Criminal Tax) seeking their advice. SIT will prepare a request for the Chief, CI’s concurrence and a routing slip seeking the approval from the Deputy Commissioner, IRS.

9.4.6.7.2.6  (09-24-2003)
Reports, Extensions, Expansions and Closing Reports Related to Wiretaps When CI Special Agents Are Actively Monitoring Conversations

  1. Copies of the 10-day reports and closing reports must be sent to SIT within 15 days of the completion of the report.

  2. If an extension of time is required, the Director, Field Operations is the approving official. A request must be prepared by the field office providing a summary of the results obtained to date and a reason for the extension. Upon approval by the Director, Field Operations, the request will be electronically forwarded to SIT.

  3. If an expansion is required to add new telephone lines related to the same targets and the same offenses, the Director, Field Operations is the approving official. A request must be prepared by the field office providing a summary of the results obtained to date and a reason for the expansion. Upon approval by the Director, Field Operations, the request will be electronically forwarded to SIT.

  4. If it becomes necessary to include additional targets or additional offenses, approval by the Deputy Commissioner, IRS is required. The procedures for the expansion to add new targets or add new offenses mirrors the procedures required to initiate a wiretap request as contained in subsections 9.4.6.7.2.5.2 or 3.

9.4.6.7.2.7  (09-24-2003)
Access to "Real Time" Electronic Communications

  1. The "real time" or simultaneous interception of digital display pagers in transmission, transmission of electronic mail, computer-to-computer transmissions, facsimile transmissions, and private video transmissions (but not video surveillance) are all covered by the wiretap statute. See subsection 9.4.6.7.2.1. (Access to stored electronic communications 18 USC §2703.)

  2. The interception of electronic communications can provide valuable information and evidence relating to any federal felony under the investigative jurisdiction of CI including Title 26 offenses. The order as provided by 18 USC §2516(3) authorizing such interception must conform to 18 USC §2518. However, cost, technical requirements and encryption are all factors that can impact its actual use.

9.4.6.7.2.7.1  (09-24-2003)
Approval/Authorization for "Real Time" Electronic Communications

  1. Prior to seeking a wiretap order for electronic communications, the special agent must prepare an affidavit for the application and a memorandum seeking approval. Both must be forwarded from the SAC, through the Director, Field Operations, to SIT. The field office Criminal Tax attorney and the Computer Telecommunications Coordinator (CTC) in the local United States Attorney’s office should be contacted for assistance in preparing those documents. The memorandum must include the following information:

    1. The background of the investigation to date including the other participating Federal, state and local law enforcement agencies involved in the investigation. The name of the criminal organization and the criminal offenses which are being investigated.

    2. The significance of the target, organization, or compliance problem being investigated.

    3. Specific description of the device(s) that the Field office intends to monitor.

    4. Financial information such as how the organization launders proceeds or how tax evasion is being promoted and the scope of the problem.

    5. The opinion, and any recommendations from, the Field office’s Criminal Tax attorney.

    6. Why CI participation in the monitoring is necessary; such as, CI has the financial expertise to analyze the information as it is being received to quickly respond to financial transactions as they occur or the details of complex transactions can only be obtained through the computer information since the financial activity is conducted offshore.

    7. The amount of CI resources needed should be listed in the memorandum.

  2. Upon receipt of the affidavit and memorandum, SIT will review the request and forward it to the Director, Operations Policy and Support for approval.

9.4.6.7.2.7.2  (09-24-2003)
Reports, Extensions, Expansions and Closing Reports Related to "Real Time" Access of Electronic Communications

  1. Following approval to seek a wiretap order, copies of the 10-day reports and closing reports must be sent to SIT.

  2. If an extension of time is required, the Director, Field Operations is the approving official. A request must be prepared by the Field office providing a summary of the results obtained to date and a reason for the extension. Upon approval by the Director, Field Operations, the request will be electronically forwarded to SIT.

  3. If an expansion is required to add new Internet sites or E-mail accounts related to the same targets and the same offenses, the Director, Field Operations is the approving official. A request must be prepared by the field office providing a summary of the results obtained to date and a reason for the expansion. Upon approval by the Director, Field Operations , the request will be electronically forwarded to SIT.

  4. The same procedures used to initiate a request must be followed to add targets or offenses to a wiretap order. Such expansion requests must be approved by the Director, Operations Policy and Support.

9.4.6.7.3  (09-24-2003)
Stored Wire and Electronic Communications

  1. 18 USC §2701 et seq, specifies how governmental entities may obtain access to stored electronic communications, transactional records, and subscriber records.

9.4.6.7.3.1  (09-24-2003)
Stored Electronic Communication/Transactional Information/Subscriber Information

  1. Stored electronic communications (defined in 18 USC §2510) includes those electronic messages temporarily stored by an electronic communications service provider prior to delivery to the intended recipient or stored as a backup. The term also includes information stored with a "remote computing service." The term includes display data stored in digital-display pagers and cell phones, stored electronic mail, stored computer-to-computer transmissions, stored telex transmissions, stored facsimile data and private video transmissions.

  2. The statute applies only to data stored with an electronic communications service provider. The real-time interception of transmissions to tone-and-voice-pagers is governed by the wiretap statute. (A tone-and-voice-pager enables callers to transmit short voice messages to a subscriber's pager.) The acquisition of transmissions to or from display pagers and facsimile transceivers during the transmission(s) requires the approval of the Deputy Commissioner, IRS, an affidavit, an application (which must be approved by the Department of Justice), and a court order obtained in accordance with 18 USC §2516 and §2518. See subsection 9.4.6.7.2.7.

9.4.6.7.3.2  (09-24-2003)
Disclosure of Stored Communications

  1. 18 USC §2702 prohibits disclosure of electronic communications by providers of electronic communication services or remote computing services unless one or more of the following conditions is met:

    1. the information is given to its intended recipient or addressee

    2. the information is given to the government pursuant to court order; search warrant, or subpoena

    3. the subscriber/customer gives consent

    4. the disclosure is to a facility used to forward the communication

    5. the disclosure is incident to testing equipment or quality of service

    6. the information was obtained inadvertently and it refers to a crime

  2. 18 USC §2702(e)(6) permits, but does not require, a service provider to disclose to law enforcement either content or non-content customer records in emergencies involving an immediate act of death or serious physical injury to any person as provided by the USA Patriot Act (sunset date December 31, 2005).

9.4.6.7.3.3  (09-24-2003)
Judicial Process for Obtaining Stored Electronic Communications, Transactional Information, and Subscriber Information

  1. 18 USC §2703 specifies the means by which a governmental entity may obtain access to stored electronic communications. The statute prohibits electronic communications providers from voluntarily providing information to a governmental entity, and requires law enforcement to use either a search warrant, court order, or subpoena (as described below in paragraphs 2, 3, 4, and 5) in order to obtain the following classes of information:

    1. The contents of electronic communication in electronic storage with an electronic communication service (such as unopened E-mail) or with a remote computing service (such as records in off-site archives).

    2. Basic subscriber information, including the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity (such as temporarily assigned Internet Protocol (IP) addresses), length of service, and types of services the customer or subscriber utilized.

    3. Transactional information, which includes all other records or information pertaining to a subscriber or customer that are not included in a) or b).

  2. If the contents of a wire or electronic communication have been in storage for 180 days or less, the government must obtain a search warrant, based on probable cause, to obtain access to the contents. Notice to the subscriber or customer is not required. Because the statute requires the use of a search warrant to obtain this class of information, it is not necessary to prepare an Enforcement Action Approval Form or to justify the use of the warrant as the least intrusive means to obtain the Information. Form 1101 is used to obtain the appropriate authorization for the search warrant application and execution.

    1. The government may obtain the contents of an electronic communication that has been in storage for more than 180 days using a search warrant, a court order issued under Section 2703(d), or a grand jury subpoena or administrative summons.

    2. Notice need not be given to the subscriber if a search warrant is used to obtain the information. The statute requires that the customer or subscriber to whom the information pertains be notified if the government obtains a court order or issues a subpoena or summons for the information. That notice may be delayed for up to ninety days, pursuant to 18 USC §2705. (This can be extended for an additional 90-day period upon application to the court for an extension under §2705(4).) Exhibit 9.4.6 - 1 is a sample of a §2703(d) Order.

  3. Transactional information, described above, may be obtained, without providing notice to the subscriber, by any of the following means:

    1. a search warrant

    2. a court order for disclosure per 18 USC §2703(d)

    3. consent from the customer or subscriber of the service

    4. submission of a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, when a subscriber or customer is engaged in telemarketing as defined in 18 USC §2325.

  4. Basic subscriber information may be obtained with any of the means described in (3) above or with a grand jury subpoena or administrative summons, without providing notice to the subscriber.

  5. 18 USC §2703(f) imposes on the provider of wire or electronic communication services or a remote computing service the obligation, upon the written request of a governmental entity, to take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process. Exhibit 9.4.6 - 2 is a sample of a §2703(f) "Preservation Letter" .

    1. The Preservation Letter requires providers of wire or electronic communication services or remote computing services to retain records for a period of 90 days, which can be extended for an additional 90-day period upon a renewed request by the governmental entity.

9.4.6.7.3.4  (09-24-2003)
Approval/Authorization for Stored Electronic Communications, Transactional Information, and Subscriber Information

  1. The investigating special agent should consult with the local Computer Investigative Specialist (CIS) and Criminal Tax attorney about access to stored electronic or wire communications to determine the proper method of obtaining the desired information. The use of court orders and search warrants to obtain stored electronic information, transactional information, or subscriber information requires approval by the SAC on Form 1101, Request for Stored Electronic Information. After SAC approval, the Form 1101 must be forwarded electronically to SIT for filing. The SAC must seek the endorsement of the United States Attorney to apply for a court order to obtain stored electronic communications. Local procedures must be followed to obtain the court order. If preparation of an affidavit is necessary, the local Criminal Tax attorney’s opinion regarding the affidavit’s legal sufficiency and form should be obtained. SAC approval is not required when a subpoena is used for obtaining the information.

9.4.6.7.3.5  (09-24-2003)
Closing Reports for Stored Electronic Communications/Transactional Information/Subscriber Information

  1. In situations where a Court Order or search warrant was used, a memorandum will be submitted to SIT. The memorandum is due 15 wor