LESSON 4: STATUTORY LAW
4.6 Penal Statutes (U.S. Code Title 18: Crimes and Criminal Procedure)
4.6.3 Relevant Criminal Procedure Framework Statutes in Title 18
Annotated Lecture Transcript
18.104.22.168 Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510-2522)
There’s Title III of the Omnibus Crime Control and Safe Streets Act of 1968, known by most as simply “Title III.”
Ø 18 U.S.C. Chapter 119: Wire and Electronic Communications Interception and Interception of Oral Communications: Much of Title III is codified as Chapter 119 of Title 18: Wire and Electronic Communications Interception and Interception of Oral Communications.
o It controls the government’s use of wiretapping in criminal investigations.
o If you’ve ever seen the HBO series “The Wire,” the show deals with cops performing wiretaps in compliance with Title III’s minimization procedures.
Ø Electronic Communications Privacy Act of 1986: The Electronic Communications Privacy Act of 1986 changed Title III to meet the challenges presented by electronic communications.
o It has provisions that allow investigators to:
o Demand certain transactional records from third-party communications providers like phone companies and ISPs;
o Seize stored communications data like e-mails;
o Pen Registers or Trap and Trace Devices.
Also, at the end of Title 18, in the Appendix, you’ll find the Classified Information Procedures Act of 1980, or “CIPA.”
Ø Classified Information Procedures Act of 1980: CIPA is the statute enacted by Congress to address the graymail problem.
o Graymail is when a criminal defendant threatens to reveal classified information at trial as part of his defense; prior to CIPA, this put considerable pressure on prosecutors to drop criminal cases against intelligence employees to avoid potential harm to national security that could result from such disclosures.
o CIPA provides a framework for judges to consider whether to allow a defendant to introduce classified information at trial.
 Electronic Communications Privacy Act (ECPA) of 1986, 92 Stat. 1783, 50 U.S.C. 1801-1862; see also Gina Marie Stevens & Charles Doyle, Congressional Research Serv., Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, 98-326 (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-326_12-3-2009.pdf (“In 1986, Congress recast Title III in the Electronic Communications Privacy Act (ECPA). The Act followed the general outline of Title III with adjustments and additions. Like Title III, it sought to strike a balance between the interests of privacy and law enforcement, but it also reflected a Congressional desire to avoid unnecessarily crippling infant industries in the fields of advanced communications technology. ECPA also included new protection and law enforcement access provisions for stored wire and electronic communications and transactional records access (e-mail and phone records), and for pen registers as well as trap and trace devices (devices for recording the calls placed to or from a particular telephone).”) (internal footnotes omitted).
 Classified Information Procedures Act (CIPA) of 1980, Pub. L. No. 96-456, codified at 18 U.S.C. App. IV; see also Larry M. Eig, Congressional Research Serv., Classified Information Procedures Act (CIPA): An Overview (1989), available at https://intelligencelaw.com/files/pdf/law_library/crs/89-172_3-2-1989.pdf (“When a violation of criminal law potentially implicates sensitive national security concerns, the Executive Branch may face a dilemma of either declining to prosecute a violation of law or risking disclosure of sensitive materials during a criminal trial. Prior to 1980 it was particularly difficult to assess whether a successful prosecution could proceed without jeopardizing disclosure of sensitive information because the government had no means of determining the extent, nature, or relevance of classified information at issue prior to its introduction at trial. In 1980, however, Congress enacted the Classified Information Procedures Act (CIPA) to provide a means for determining at an early stage whether a “disclose or dismiss” dilemma exists in a potential prosecution or whether a prosecution may proceed that both protects information the Executive regards as sensitive to security and assures the defendant a fair trial consistent with the mandates of the Constitution. Among its core provisions, CIPA initiates an early focus on security issues by requiring a defendant in a criminal case to notify the prosecution and the court prior to trial of any classified information that he reasonably expects to disclose in his defense. Also, the notice provision is a continuing one, and a defendant must provide a separate notice of any additional classified information that he becomes aware of after his initial notice and intends to use. A defendant may not introduce any classified information that was not included in a CIPA notice. Issues on the use, relevance, and admissibility of classified information that either was included in a notice by the defendant or is expected to be used by the prosecution are considered by the court in pretrial hearings. Under current case law, the court to some degree may take national security interests into account in determining admissibility, If a court finds that certain classified information is admissible into evidence, the court then may consider a request by the government to substitute summaries or redacted documents in lieu of original documents, The court may authorize a substitution in such a case only when a substitution affords a defendant substantially the same opportunity to defend himself as introduction of the original documents would, Once a court makes its findings on what information must, in fairness to the defendant, be introduced, the Attorney General may file an objection to disclosure on national security grounds, and the prosecution thereafter must be partially or completely dismissed. The courts generally have upheld CIPA to constitutional challenge and have enforced the sanctions set forth in the statute in appropriate cases. However, the judge in the Iran-Contra prosecutions has ruled that CIPA procedures must give way when they risk excessive exposure of the defendant's case, This ruling furthers a frequently made observation that CIPA is most effective in resolving potentially troublesome cases in which the classified information at risk proves to be only marginally sensitive or marginally relevant, It remains problematic whether the disclose or dismiss dilemma posed by a prosecution involving sensitive information at its core can be resolved in a manner that preserves the rights of the defendant.”).
 Graymail Legislation: Hearings Before the Subcommittee on Legislation of the House Permanent Select Committee on Intelligence, 96th Cong., 1st Sess. 4-6 (1979) (statement of Assistant Attorney General Philip Heymann) (describing the graymail problem as follows: “To fully understand the problem, it is necessary to examine the decision making process in criminal cases involving classified information. Under present procedures, decisions regarding the relevance and admissibility of evidence are normally made as they arise during the course of the trial. In advance of trial, the government often must guess whether the defendant will seek to disclose certain classified information and speculate whether it will be found admissible if objected to at trial. In addition, there is some question whether material will be disclosed at trial and the damage inflicted before a ruling on the use of the information can be obtained. The situation is further complicated in cases where the government expects to disclose some classified item in presenting its case. Without a procedure for pre-trial rulings on the disclosure of classified information, the deck is stacked against proceeding with these cases because all of the sensitive items that might be disclosed at trial must be weighed in assessing whether the prosecution is sufficiently important to incur the national security risks. In the past, the government has foregone prosecution of conduct it believed to violate criminal laws in order to avoid compromising national security information. The costs of such decisions go beyond the failure to redress particular instances of illegal conduct. Such determinations foster the perception that government officials and private persons with access to military or technological secrets have a broad de facto immunity from prosecution for a variety of crimes. This perception not only undermines the public's confidence in the fair administration of criminal justice but it also promotes concern that there is no effective check against improper conduct by members of our intelligence agencies.”).
 See Larry M. Eig, Congressional Research Serv., Classified Information Procedures Act (CIPA): An Overview (1989), available at https://intelligencelaw.com/files/pdf/law_library/crs/89-172_3-2-1989.pdf (“The term ‘graymail’ came into use to refer ‘to actions of a criminal defendant in seeking access to, revealing, or threatening to reveal classified information in connection with his defense.’ [Citing H.R. Rep. No. 96-831 at 7]”) (one internal footnote omitted).
 See Larry M. Eig, Congressional Research Serv., Classified Information Procedures Act (CIPA): An Overview (1989), available at https://intelligencelaw.com/files/pdf/law_library/crs/89-172_3-2-1989.pdf (“In 1980, however, Congress enacted the Classified Information Procedures Act (CIPA) in order to provide a discrete and orderly framework for determining at an early stage whether a "disclose or dismiss" dilemma exists in a potential prosecution or whether a prosecution may proceed that both protects information the Executive regards as sensitive to security and assures the defendant a fair trial consistent with the mandates of the Constitution.”) (internal footnotes omitted).