The collection of digital evidence in criminal cases is governed at the Federal and State levels by numerous constitutional and statutory provisions, including statutes that regulate the communications and computer industries and that directly govern the gathering and use of digital evidence. Court decisions and procedural rules also need to be considered.

This chapter discusses several Federal statutes that govern access to and disclosure of certain types of information deemed deserving of special treatment by Congress: the Electronic Communications Privacy Act (which includes the Wiretap Act, the Pen Register and Trap and Trace Statute, and the Stored Wire and Electronic Communications Act) and the Privacy Protection Act. Also reviewed are principles applicable under the Fourth Amendment to the U.S. Constitution. Investigators, examiners, and prosecutors should be familiar with these statutes because their breach may result in evidentiary challenge or civil suit. (Other Federal provisions and State laws are beyond the scope of this guide.)

Wiretap Act
The Wiretap Act (18 U.S.C. § 2510 et seq.) focuses on the interception of the content of communications while they are in transit. Examples of such interceptions include wiretapping a telephone, placing a listening device or “bug” in a room to pick up conversations, and installing “sniffer” software that captures a hacker’s instant messages. The Wiretap Act also governs the disclosure of intercepted communications.

The Wiretap Act generally and broadly prohibits anyone in the United States from intercepting the contents of wire, oral, or electronic communications. As a basic rule, the Wiretap Act prohibits anyone who is not a participating party to a private communication from intercepting the communication between or among the participating parties using an “electronic, mechanical, or other device,” unless one of several statutory exceptions applies.

One exception is the issuance of an order by a court of competent jurisdiction that authorizes interception. The requirements to obtain such an order are substantial.

Violation of the Wiretap Act can lead to criminal and civil liability. In the case of wire and oral communications, a violation by government officials may result in the suppression of evidence. To ensure compliance, an initial determination should be made about whether:

• The communication to be monitored is one of the protected communications defined in the statute.
• The proposed surveillance constitutes an “interception” of the communication.