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Wiretapping is seeing an increase, both in criminal case authorizations and, perhaps unexpectedly, as a claim in civil proceedings.
According to the 2022 Wiretaps Report from the U.S. Courts, interceptions in criminal cases have gone up, but arrests and convictions have gone in the other direction.
In 2022, federal and state wiretaps increased 7% from the previous year, with a total of 2,406 wiretaps reported as authorized. Of those, 1,274 were authorized by federal judges and 1,132 were authorized by state judges.
In the federal courts, the Northern District of Texas authorized the most wiretaps for the 12-month period ending Dec. 31, 2022, with 81 authorizations. Comparatively, the Indiana Southern District Court authorized 26 while the Indiana Northern District Court authorized five.
Brad Banks, founding attorney at Banks & Brower LLC in Indianapolis, said on the criminal defense side, wiretapping is generally used for drug-dealing cases. He pointed specifically to the federal government’s aggressive approach toward the fentanyl epidemic.
The report bears that out, with 51% of wiretap applications included in the report citing narcotics as the most serious offense under investigation. Applications citing narcotics plus other offenses, including other drugs, accounted for 81% of all reported wiretap applications in 2022, which is a 2% increase from 2021.
But arrests resulting from wiretaps were actually down — 5,287 arrests in 2022, a 36% percent decrease from 2021. Convictions were also down — 548 convictions, a 42% decrease.
Asked about that apparent disparity, Banks opined that it likely indicates the cases involving those wiretaps are still pending.
“It may be from multiyear investigations and indicative of an investigation that has not come to fruition yet,” he said.
To that end, Banks said it will be interesting to check back with the numbers in a year or two to see if arrests or convictions are higher, possibly indicating completed cases.
Neal Eggeson, of Eggeson Privacy Law in Fishers, theorized that arrests and convictions related to wiretaps may be down due to apps like WhatsApp and Snapchat, where communications disappear after a certain amount of time.
“My suspicion is (it’s) because things like WhatsApp or Snapchat are encrypting and deleting messages and thus making the wiretap ineffectual,” he said.
According to the report, encryptions in state wiretaps increased from 176 in 2021 to 192 in 2022. In 179 of those, officials could not decipher the plain text of the messages.
On the federal side, 286 wiretaps in 2022 encountered encryption, and 262 could not be decrypted.
But it’s not just the government using wiretaps as part of their legal proceedings.
The other side
Eggeson said he has seen the federal wiretap statute, 18 U.S.C. §2511, come up increasingly in civil cases.
One example he gave was a divorce case in which the husband put a recording device in his house. The husband was then able to pick up one side of phone calls his wife was having with her lawyer, mother and others about the divorce.
After discovering that the phone was bugged, the wife accused the husband of violating the federal wiretap statute.
“Arguably, under the terms of the statute, he had used a device that had intercepted someone else’s oral communication and he had recorded it,” Eggeson said. “… It (the statute) got used as a sword instead of a shield and it was used to leverage certain concessions out of the spouse throughout the course of that divorce.
“… Where I run across the wiretap statute,” he continued, “it has become more of a weapon that is used by civil litigants; it’s more of a sword than a shield anymore.”
Sword or shield?
As another example, Eggeson pointed to a recent decision from the Court of Appeals of Indiana.
The case, Rubendall v. Community Hospital of Anderson and Madison County, 22A-CT-2223, involved a hospital that used an email-to-pager system to notify departments and staff members of scheduling changes. The notifications would include patients’ protected health information.
A news reporter was able to intercept the transmissions as part of an investigation into potential privacy violations. The reporter was also able to decode the transmissions.
The plaintiff in the case, Brittany Rubendall, was contacted by the reporter, who was able to recite Rubendall’s date of birth, the date she received treatment in the emergency room and the diagnosis she received from the doctor.
Rubendall sued the hospital for negligence and invasion of privacy, but the Madison Circuit Court ultimately granted summary judgment to the hospital following the Indiana Supreme Court’s decision in Cmty. Health Network v. McKenzie, 185 N.E.3d 368 (Ind. 2022).
Meanwhile, the hospital alleged the reporter’s actions violated the Wiretap Act.
“Here, Ms. Reinke’s actions were illegal and unauthorized,” the hospital wrote in its brief supporting its motion for summary judgment, referencing Kelly Reinke, formerly of Fox59 news in Indianapolis.
The hospital continued in a footnote, “(T)he Wiretap Act, as amended by the Electronic Communications Privacy Act of 1986, generally prohibits anyone who ‘intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.’ 18 U.S.C. § 2511(1)(a). The Wiretap Act specifically and separately defines ‘wire communication,’ ‘oral communication’ and ‘electronic communication.’ 18 U.S.C. § 2510 (1), (2), (12). Courts have considered these definitions to encompass phone calls, emails, text messages, and pages (to pagers). … Like the Communications Act, the Wiretap Act also prohibits anyone from using or disclosing contents of an unlawfully intercepted communication. 18 U.S.C. § 2511(1)(c)-(d). Indiana similarly provides for criminal liability under the state wiretap law. See Ind. Code § 35-33.5-5-5.”
According to Eggeson, “The hospital system turned around and said that the reporter has violated the federal Wiretap Act, that the reporter should be arrested because she intercepted a digital communication and recorded it in violation of the Wiretap Act, and we as a hospital system, we can’t be held responsible for somebody else violating federal law and intercepting our pages even though it’s the hospital’s fault that they weren’t encrypted.
“I’m not sure it (the statute) was designed to be used as a way for negligent health care systems to get out of the consequences of their own misconduct,” he said. “But nevertheless, that’s where we are.”
The Rubendall case is currently before the Indiana Supreme Court on petition to transfer.
From what he has seen, Eggeson said the federal wiretap statute isn’t being used as a force for good, but rather to silence opposition.
“It’s the threat that silences people, right? So the threat is all they need,” he said. “When you see it on the civil side of litigation, prosecution isn’t really accomplishing what anyone wants.”•
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