There has been a dramatic increase over the last decade in the number of federal wiretaps authorized under Title III—the federal wiretap statute. This trend is highlighted against a backdrop of increasing unease with covert government surveillance among privacy advocates and society-at-large. From the government’s perspective, using more wiretaps makes sense because wiretaps can yield extremely valuable and damaging evidence against an accused individual. More to the point, the benefits of wiretap evidence are substantial in any prosecution and almost always outweigh the costs of securing and implementing the wiretap order.
Wiretaps have always been an effective means of gathering evidence, however, so that cannot provide a satisfactory explanation as to why wiretaps are increasingly a preferred investigative tool instead of a default tool when other investigative techniques have failed. It could be that the government is better at meeting the requirements of Title III, such as the required showing of probable cause and necessity, before obtaining a wiretap authorization from a federal district court judge. Another explanation for at least part of this increase in authorized wiretaps is that the costs to the government of using wiretap evidence are artificially low in many cases.
One cost of using wiretap evidence at trial is the extensive discovery obligations imposed by Title III. The government is required to produce the contents of the wiretap application to the accused before using any evidence derived from the wiretap at trial. Through this discovery, the government often lays bare months, sometimes years, of investigative work by federal agents, local police, undercover agents, and confidential informants (“CI”). This article will focus on those discovery requirements as they relate to the government’s use of CI information to establish probable cause and necessity in wiretap applications, which is often the case in drug investigations. More specifically, this article aims to shine a light on the government’s use of CIs in obtaining wiretap authorizations, while simultaneously shielding information about the CI from the accused during the discovery process. By having it both ways—using CI information without having to disclose that information in discovery in order to use that CI for additional investigative work—the government’s decision to seek a wiretap becomes easier. In effect, the government can avoid one of the key costs of obtaining a wiretap, making it more likely that a wiretap will be pursued because of the extensive benefits of wiretap evidence at trial.
Much has been written about the skewed incentives and possibility for error when the government relies on confidential informants and when law enforcement officers establish long-term relationships with “career” informants, especially in drug trafficking and organized crime investigations. However, what has gone unexamined in the scholarship is the intersection between the government’s use of confidential informants and the authorization process for a wiretap, and more specifically, how courts have allowed the government to shirk its discovery obligations under Title III to maintain relationships with CIs. This article argues that requiring broader disclosure of CI information under Title III would raise the cost of obtaining a wiretap in many cases, thereby reserving wiretaps for extraordinary circumstances only—as envisioned by the statute and courts.
This article makes the case for broad disclosure of CI information in wiretap prosecutions in three parts. Part I will provide necessary background information related to the government’s use of wiretaps and Title III’s statutory scheme relating to discovery. Part II will examine the government’s current cost-benefit analysis when considering whether to use a wiretap and concludes that the benefits to the prosecution almost always outweigh the costs. In Part III, this article argues that courts, despite their reluctance in the few reported cases on the issue, should raise the costs of using wiretap evidence by requiring broader disclosure of CI information in wiretap cases. This broader approach to discovery would affect many drug investigations, which comprise the largest percentage of authorized wiretap orders. Moreover, Part III observes that such an approach by courts in enforcing Title III’s discovery obligations may produce additional benefits such as reducing the government’s use of “career” confidential informants and enabling a more rigorous judicial review of wiretap investigations.