Many investigators are beginning to pursue social media or app wiretaps to help prosecute certain crimes. In fact, there are currently nine cases in Maryland where authorities have requested permission to wiretap social media or digital apps,. The most recent example of this phenomenon is a case that happened last year in Harford County.

In the pursuit of suspected drug traffickers, authorities requested permission from a judge to listen in on a suspect’s phone conversations. In addition to wiretapping the phone, authorities were able to secure a wiretap for the suspect’s Facebook page. This allowed authorities to not only monitor the activity on the social networking site, but also listen in on the audio calls that the suspect placed through the app.

Because many people opt to communicate through social media apps instead of phones and text messages, authorities are beginning to make use of social media and app wiretaps in their investigations. This does not mean, however, that all communication is open and available to investigators. The information to which investigators are entitled really depends on whether the communications are end-to-end encrypted.

Some messaging services prohibit authorities from listening in on encrypted phone calls with a wiretap warrant, while other messaging services provide an option that exposes the communications if the encryption is not enabled by the user. Some examples of social media apps that are end-to-end encrypted by default include WhatsApp and the iPhone’s Facetime.

The use of wiretapping

Wiretapping is the secret monitoring of telephone and Internet-based communications by a third party. Law enforcement officials engage in the act of wiretapping to gather evidence against a suspect. Some of the more common crimes that law enforcement officials use wiretaps to investigate include white collar crimes, homicide, kidnapping, and drug crimes.

While it may seem that investigators have free reign to spy on the conversations of others, law enforcement officials are subject to certain requirements in order to wiretap different electronic forms of communication. One of the most important requirements is probable cause.

Obtaining wiretap warrants

Because electronic surveillance is classified as a search under the Fourth Amendment, law enforcement officials must undergo the same warrant requirements that they would for any other search. Authorities must show probable cause as to why a search is justified, provide a specific description of the conversation they plan on intercepting, and provide a specific time period for the surveillance. If law enforcement officials fail to comply with the strict wiretap warrant requirements, the entire case can be dismissed.

What is one-party consent?

Per the Maryland Wiretap Act, it is illegal to record any private in-person conversation or any telephone or electronic communication without either being a party to the conversation or having the permission of all the other parties. This Act also makes recording someone with criminal purpose illegal, regardless of whether the person consented or not. The purpose of these types of wiretapping laws are to protect your right to privacy.

Sometimes when we think about the act of wiretapping, FBI agents and spies sneaking around and listening in on conversations comes to mind. In reality, you can potentially violate a wiretap law by recording and posting a video or direct message between two people without the consent of either person.

Protecting your privacy online

Again, because many people are transitioning from phones and text messages to different social media apps to communicate, law enforcement officials are exploring the use of wiretaps for social media accounts. Still, the same requirements for a wiretap warrant on a social media account apply to the same requirements necessary for a regular search warrant. Investigators cannot keep tabs on your social media account without a wiretap warrant. Still, you can take additional measures to ensure that any private conversations between yourself and any other parties stay private.

Settings and controls on your social media platforms

To ensure your privacy in electronic communication between you and another party, you can use what is known as end-to-end encryption on your social media platforms. End-to-end encryption (E2EE) is a form of communication that allows only the two users to read the messages. EE2EE helps to prevent data from being secretly modified or read by people other than the true sender and recipients. The messages are encrypted by the sender but a third party does not have the ability to decrypt them. Some social media apps that provide end-to-end encryption include WhatsApp and Apple Messages.

How can an attorney assist me in a wiretapping case?

If you are involved with a wiretapping case, it would be in your best interest to contact a wiretapping attorney. Experienced attorneys have the ability to defend your rights in a wiretapping case and advocate on your behalf to have the case dismissed. Law enforcement officials must follow very strict procedures before obtaining and after obtaining a wiretap. Because the procedures are very strict, any evidence that shows a violation of your constitutional rights can be used to dismiss the entire wiretap in court.

What are possible defenses to wiretap cases?

Some of the common defenses that your attorney will employ to advocate on your behalf include the expiration of the warrant, innocent communications, and failure to present wiretap evidence. In regards to the expiration of the warrant, there are occasions where law enforcement officials decide to pursue a wiretap warrant after its expiration date. When this occurs, the judge must rule that such evidence obtained will be deemed inadmissible in court.

Defense of innocent communications means that law enforcement officials listened in on conversations that had nothing to do with the criminal activity of the investigation; when this occurs, the judge should suppress the evidence. Finally, law enforcement officers are required to present wiretap evidence to a judge for it to be sealed. When law enforcement officials fail to do so, the wiretap will be deemed inadmissible in court.

Do you have questions about social media wiretaps? Are you trying to prevent your home or social media accounts from being surveilled? Let the experienced Bowie criminal defense attorneys at Carey Law Office protect your rights. We serve clients in Calvert County, Anne Arundel County, Prince George’s County and throughout the state. Call us today at 301-464-2500, or complete a contact form to schedule a consultation.