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38.1.1.5
(08-11-2004)
Electronic Surveillance
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This subsection discusses authorization of assorted types of electronic surveillance under various statutes.
38.1.1.5.1
(08-11-2004)
Non-Consensual Monitoring of Wire/Oral Interception
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Under 18 U.S.C. § 2510 (Title 1), courts may authorize electronic interception of the contents of wire and oral communications
during the investigation of specific criminal offenses. See 18 U.S.C. § 2516 for the specific criminal offenses. This statute does not authorize the interception of wire and oral communications
for Title 26 violations.
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Statutes and IRS policy prohibit non-consensual monitoring of oral and wire communications for Title 26 purposes; however,
the Service may receive Title I information. Law enforcement officers who obtain wiretap evidence are permitted to turn such
evidence over to other law enforcement officers for the latter’s use and special agents are considered investigative or law
enforcement officers to whom information may be disclosed. Law enforcement officers are permitted to use wiretap evidence
in their official duties, such as issuing summonses, investigating tax offenses or preparing special agent reports. 18 U.S.C.
§ 2517.
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Law enforcement officers are also permitted to use the evidence in a grand jury, in court or any other proceeding, or they
may disclose it via testimony. Prior to such use, however, the law enforcement officers must obtain a derivative use order
that must be based upon the court’s finding that the evidence of the nonspecified crime (i.e., tax offense) was otherwise
(or properly) intercepted. Failure to obtain such an order can result in dismissal of the case or liability for civil damages
due to unauthorized disclosure. The derivative use order should be obtained as soon as practicable.
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The Criminal Tax attorney reviews the validity of the Title I order and so advises the SAC in a memorandum. The US Attorney’s
office obtains the appropriate derivative use order for Criminal Investigation.
38.1.1.5.2
(08-11-2004)
Electronic Communications
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Electronic communications are those which do not contain the human voice at any point during the transmission and are 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 a photo-optical system that affects foreign or interstate commerce.
This category includes systems such as digital/display pagers, electronic mail, electronic bulletin boards, computer-to-computer
transmissions, telex transmissions, and fax transmissions.
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Section 2516(3) of Title 18 of the United States Code allows for the interception of electronic communications when such interception
may provide or has provided evidence of any federal felony, including Title 26 offenses. To intercept such communications,
electronic communication intercept orders must be based upon an application and an affidavit. The Criminal Tax attorney reviews
these affidavits for factual and legal sufficiency and so advises the SAC in a memorandum.
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To ensure uniformity, the DOJ informed Congress that applications for interception of fax transmissions and pagers must be
approved by the same DOJ officials who approve wire and oral interception applications and comply with 18 U.S.C. § 2518. Consequently,
applications for pagers and facsimile transmissions should be coordinated through the Associate Chief Counsel (CT).
38.1.1.5.2.1
(08-11-2004)
Stored Electronic Communications - 18 U.S.C. § 2701 (Also Known as Title II)
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Stored electronic communications and transactional records include storage of electronic messages both before and after transmission,
backup copies retained for re-access by the recipient, and backup copies used by the communications company. Also included
are Remote Computer Services, where electronic data is processed and/or stored by third-party computer service companies.
Data is most often transmitted between these services and their customers by means of electronic communications.
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The Service may gain access to such communications via authorization obtained pursuant to 18 U.S.C. § 2703, and the nature
of the data sought will determine the type of authorization required.
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If the data has been stored for 180 days or less, a probable cause search warrant is required.
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If data has been stored for more than 180 days or data is stored in a Remote Computer Service:
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A probable cause search warrant is required, and notice is not required to the subscriber, or
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A disclosure court order or grand jury/administrative trial subpoena is required, and notice is required to the subscriber.
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The subscriber is usually notified of government access, unless, upon a showing of good cause, the court delays notice for
not more than 90 days. The Government will reimburse computer service for reasonable expenses.
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The Criminal Tax attorney should review the legal sufficiency and form of affidavit in support of an application for a court
order and so advise the SAC.
38.1.1.5.3
(08-11-2004)
Consensual Monitoring
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Definition. Consensual monitoring occurs when at least one party to a conversation agrees to have the conversation monitored using a
device, such as a body bug (NAGRA), telephone bug (suction cup), room bug, or video bug. Because a party to the conversation
consents to the recording of it, this activity does not implicate Title I. Consensual monitoring can take two forms: telephonic
and non-telephonic. Neither form requires a court order, but prior DOJ or US Attorney approval is required.
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Full Consent. If all participants consent to monitoring, authorization is unnecessary, regardless of whether it is telephonic or non-telephonic
monitoring. See IRM 9.4.7.
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Partial Consent. In telephonic and non-telephonic monitoring, if less than all participants consent to the monitoring, authorization must
be obtained. See IRM 9.4.7.
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Telephonic Monitoring. A Form 8041, Request for Authorization to Use Electronic Equipment and Consensual Monitoring, is used to request approval
for telephonic monitoring. The request must be in writing before authorization is granted; however, if time does not permit,
the request may be oral, with Form 8041 being submitted at the earliest practical time. The SAC has the authority to approve
the requests and this authority may not be delegated. The Criminal Tax attorney will assist Criminal Investigation personnel
when questions arise and review for legal sufficiency.
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Non-telephonic Monitoring. To obtain authorization for non-telephonic monitoring, requests must be in writing on Form 8041. Oral requests are allowed
if there is a bona fide emergency, but these must be confirmed in writing within two working days after the oral request is
made. The form must note approval by an attorney for DOJ or the US Attorney’s office, along with his/her name and position.
The Criminal Tax attorney will assist Criminal Investigation personnel when questions arise and review for legal sufficiency.
38.1.1.5.3.1
(08-11-2004)
Consensual Monitoring Using Beepers/Transponders/Tracking Devices
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Beepers/transponders/tracking devices are one-way electronic/mechanical communication devices that emit a radio signal on
a specific radio frequency. The radio signal can be received by special tracking equipment. It allows the user to trace the
geographic location of the beeper. Such homing devices are used to monitor the physical whereabouts of the sending unit —
the item that is monitored — such as an automobile, a person, or a container.
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Electronic Tracking Devices (also known as beepers), can be used only in cases involving a felony violation or in wagering
tax investigations if one of the following is present:
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The person in lawful possession of the vehicle or personal property consents to the installation.
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The vehicle is not located where a reasonable expectation of privacy exists, and the tracking device will be installed on
the vehicle in a manner that would not violate a reasonable expectation of privacy.
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Use of the device is authorized by court order.
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The SAC, with the concurrence of the local US Attorney, may authorize consensual use of electronic tracking devices. The Criminal
Tax attorney will assist Criminal Investigation personnel and review the request for legal sufficiency.
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The SAC may allow special agents to apply for court orders authorizing the installation of an electronic tracking device.
The Criminal Tax attorney will review the affidavit in support of the application for a court order authorizing the installation
and use of an electronic tracking device for legal sufficiency and will prepare a memorandum so advising the SAC.
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The law permits a federal court to issue orders for beepers authorizing their use even outside of the jurisdiction in which
the device was installed. This will permit monitoring as the subject moves from district to district without reapplying for
a separate order for each district. This section provides extra-jurisdictional effect to a court order, and covers movement
both inside and outside of the United States. See 18 U.S.C. § 3117. The Criminal Tax attorney will review the affidavit and request for legal sufficiency and prepare a memorandum
so advising the SAC.
38.1.1.5.3.2
(08-11-2004)
Pen Registers and Trap and Trace Devices (Grabbers)
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A pen register is a mechanical device that is attached at a telephone junction box and records the actual numbers called (outgoing)
from a particular line. In addition to recording the numbers called, a pen register is capable of recording the date, time
and duration of each call. A trap and trace device (grabber) is a technique whereby the telephone company uses a switching
system or facility to identify the source (telephone number) of an incoming call. Of course, the date, time and duration of
the call can also be recorded by the telephone company. See 18 U.S.C. §§ 3121 through 3126.
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Pen registers and trap and trace devices (grabbers) may be used by Criminal Investigation as investigative tools only when
authorized by court order in cases involving felony violations and in wagering tax investigations. Pen registers and other
types of telephone number recorders will not be used in investigations involving misdemeanor violations (other than wagering
cases), such as altered documents cases under IRC § 7207 and general program cases, such as investigations of Questionable
Refund Programs cases.
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