Do the Police Have the Right to Tap My Telephone?

Created by FindLaw's team of legal writers and editors.

We usually think of legal problems as beginning with an arrest, or charges being filed against someone, but there are situations in which legal trouble starts long before an arrest or accusation takes place. You won't necessarily know when law enforcement begins to target you for investigation, but understanding the tools they have available can help you protect your privacy.

Of course, any action that takes place within public view is available to law enforcement with little or no paperwork or oversight. The police can watch what you do in public spaces, or in plain view of a public space such as through the open window of a home or business. Less obvious though, is that police may also access entirely private communications, such as telephone conversations or emails.

Police rely on a variety of tools to investigate crimes, including the ability to tap your phone and monitor your conversations. While such wiretaps can produce strong evidence against potential criminals, it is also a major invasion of privacy and police must follow strict procedures when performing wiretaps.

The Right to Tap Your Phone: The Wiretap Order

The police must first obtain a wiretap order before eavesdropping on your phone conversations. This is similar to a warrant. The police must prove to a judge that they have probable cause to believe that tapping your phone lines will help them to solve a serious crime, such as drug trafficking, money laundering, or terrorism. However, because wiretapping is so intrusive, the police are held to a higher standard when seeking wiretap orders than when they are seeking warrants.

One communication that is generally exempt from the wiretap order requirement is phone conversations from prison. Prisoners have a greatly reduced expectation of privacy and cannot expect that their phone conversations will remain private. For this reason, some criminal attorneys choose to meet their clients in person face to face, to try and ensure that their communication is private.

The Right to Tap Your Phone: Restrictions on Wiretapping

Orders authorizing the tapping of a telephone usually contain privacy-related restrictions, especially time limits so the police cannot keep listening forever. Law enforcement also must limit wiretapping only to conversations that are likely to yield evidence against the suspect.

The Right to Tap Your Phone: Pen Registers and Tap and Traces

Two other investigative methods for tapping your phone are "pen registers" and "tap and traces." Pen registers record all numbers dialed from a particular phone line. Tap and traces record all the numbers that call a particular phone line. Since these only record phone numbers and not the actual conversations, they are considered less of a privacy intrusion and the police do not need to get a wiretap order first.

When police seek a warrant for cellphone data, such as location information to track a person's whereabouts, separate issues are raised.

Get Help with Your Criminal Case: Call an Attorney

Most people don't hire an attorney until they're charged with a crime, but the assistance of qualified legal counsel can be invaluable if you suspect that you're under investigation or that your phone is being monitored. Get started today by calling an experienced criminal defense attorney in your town.

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