Intelligence Law School - Course 1: Lesson 2.1.3 Federal Law vs. State Law


««« Previous Lesson  |  Next Lesson »»»

LESSON 2: PRIMARY LEGAL AUTHORITY IN THE FEDERAL SYSTEM


2.1 The Federal Legal System of the United States


2.1.3 Federal Law vs. State Law


Lecture Audio



Lesson Outline


 

Annotated Lecture Transcript

2.1.3 Federal Law vs. State Law

2.1.3.1 Federalism Generally

So, there are two overarching legal systems affecting U.S. intelligence agencies at the global level—national law and international law.

 

Down at the national level in the United States there are also 2 separate legal systems that affect the conduct of domestic intelligence activities.

They are

Ø  Federal law; and

Ø  State law.

 

As you no doubt remember from elementary school, our government is organized as a federal legal system.

This means that we have two entirely separate and overlapping sets of domestic law representing primary legal authority in every part of the United States.

Wherever you are in the U.S., your conduct is always governed by both

Ø  Federal law; and

Ø  The state law of whatever state you’re standing in.

 

We have one federal legal system governing matters within the jurisdiction of the federal government, and 51 separate and autonomous state legal systems in each of the 50 states and the District of Columbia.

Ø  Speeding Hypothetical: To give you an example of how these overlapping legal systems interact, just imagine you’re speeding through Iowa on your way to a Hawkeye game at Kennick Stadium.

o   You get pulled over by a cop and are forced to miss the kickoff.

o   The guy pulling you over will be a state law enforcement officer—either a state trooper, county sheriff’s deputy, local police officer, or campus cop—depending on where you’re caught and who happens to stop you.

o   Whoever it is, it’ll definitely be a state-level law enforcement officer.

o   This is because the laws against speeding in Iowa are state law, not federal.[1]

 

2.1.3.2 The Supremacy Clause

The Supremacy Clause says that the federal Constitution and any federal laws made in accordance with that Constitution are the supreme law of the land.[2]

This means that federal law trumps state law, if there’s a conflict.

Federal law will prevail over any directly conflicting state law.

 

2.1.3.3 Concurrent Jurisdiction and the Doctrine of Preemption

Direct conflicts where state law is preempted by federal law are not as common as you might think.

State governments have broad police powers within their jurisdiction.[3]

The federal government, on the other hand, is a government of limited, enumerated powers that are each listed in the text of the U.S. Constitution.

We’ll discuss these powers briefly in Lesson 3 of this course, and then in depth later on in Course 2: Constitutional Law and Intelligence.

For now, just know that states have far broader police powers to control conduct carried out inside their borders than the federal government.

 

Unlike state investigators, however, federal investigators have nationwide jurisdiction; although, that nationwide jurisdiction is limited to investigating only federal crimes, with a few exceptions.[4]

State investigators, on the other hand, have far broader jurisdiction to investigate both state and federal crimes; however, this broad jurisdiction is limited to the territory of their state—again with a few small exceptions.[5]

 

This means that, in the intelligence context, states have concurrent jurisdiction over many of the same crimes that might serve as the basis for intelligence investigations by federal investigators, provided the crimes in question occurred within the jurisdiction of their state.

 

Despite this overlapping jurisdiction, federal law still remains the supreme law of the land.[6]

A federal statute will trump any state statute that directly conflicts with it.

The Doctrine of Preemption will apply whenever the federal government has either:

Ø  Explicitly preempted state regulation in an area, or

Ø  Engaged in such pervasive regulation of the field that it is reasonable to infer that Congress left no room for the states to supplement federal regulation of the matter.[7]

 

Ø  Clarification: Now, the Doctrine of Preemption is not a get-out-of-jail-free card for all federal employees who decide to break state laws and local ordinances.

o   The Supremacy Clause doesn’t mean a CIA operations officer can speed down I-95 flicking off Virginia State Troopers along the way.

o   He can’t shoplift pastries from Harris Teeter in McLean or even pee outside his favorite bar in Brooklyn.

o   The Doctrine of Preemption only prevents state law from directly conflicting with the federal law.

o   Public urination outside bars isn’t governed by federal law, and it’s not part of an operations officer’s official job description, so there’s no direct conflict with the state laws or city ordinances that forbid that kind of behavior. 

§  So if you’re an operations officer at a bar and you’ve really gotta go, go fast!

·         And don’t get caught.

·         Practice at not getting caught will serve you well overseas.

·         Not getting caught” should be the first law listed in any ops officer’s legal handbook.

 

2.1.3.4 Federal vs. State Wiretapping Statutes

So wherever you are in the United States, there are always going to be two separate domestic legal systems governing your behavior.

1)      Federal Law; and

2)     State Law.

Sometimes your conduct may be perfectly legal under federal law and at the same time constitute a serious felony under the state law where you’re standing.

 

Ø  Federal Law as a Floor for Individual Rights: Sometimes state law provides greater or different protections for individual rights than those afforded under federal law.

o   Federal law is the supreme law of the land, but it represents the floor—the bare minimum rights that must be afforded to individuals in the United States.

o   States can’t provide less protection that federal law requires, but they are free to provide their citizens with greater protections if they see fit.

Ø  Federal vs. State Wiretapping Statutes:  Take federal and state wiretapping statutes, for example.

o   Under both federal[8] and state laws, it is a felony to record someone else’s phone conversations without either consent or a court order.[9]

o   Federal law requires that only one party to the conversation consent in order to make warrantless surveillance legal.[10]

o   Some states, like Maryland, require the consent of all parties to a conversation before it can be legally be monitored.[11]

§  This is why telemarketers always tell you that your phone call may be recorded “for quality assurance purposes.”

§  It has nothing to do with “quality.”

§  It’s because some states make it a felony for them to tape your conversation without telling you.

§  Maryland is free to provide greater protections for its citizens who might be targeted by eavesdroppers intending them harm.

·         After all, there really aren’t many situations when somebody secretly tapes somebody else’s phone calls for the purposes of actually helping that person out.

·         Invariably it’s done with the intent to harm the targeted person in some way.

·         Regardless, it’s pretty sleazy in any event, so Maryland made it a felony not to get consent from everybody being recorded.

o   Some states follow the federal approach, requiring only one party’s consent to record a call.

o   Other states follow Maryland’s approach, requiring all parties to consent.

o   It all depends on where you’re standing.  

Ø  Linda Tripp/Monica Lewinsky Example: For an example of how these different state laws can get an eavesdropper into hot water, just think back to the Monica Lewinsky scandal during the Clinton Administration.

o   Remember that the entire controversy came to light because a Pentagon employee named Linda Tripp secretly recorded her phone conversations with her friend Monica Lewinsky.[12]

o   Ms. Tripp’s electronic surveillance of her friend without her consent was not a federal crime.[13]

§  This is because federal law requires only the consent of one party to the conversation to make recording legal.

§  Ms. Tripp did have one party’s consent—her own.

o   If we only had federal law to worry about, she would have been in the clear.

o   The problem was that Tripp may have taped these calls while she was at her home in Maryland.

o   Remember that Maryland has an all-parties consent rule in its felony wiretap statute.[14]

o   Under the state law of Maryland, it is a felony to tape your phone calls with another person unless you’ve obtained consent from all parties to the conversation.[15]

o   So, while Linda Tripp’s actions were legal under the federal law, those same actions may have placed her in violation of state law.[16]

Ø  Location, Location, Location: The Importance of State Law to Private Eavesdroppers and Informants: If Linda Tripp had been standing inside the Pentagon when she taped these calls instead of at her home in Maryland her actions wouldn’t have raised any problems under either the federal or state wiretapping statutes.

o   Virginia is a one-party consent state.[17]

o   The Pentagon sits in Virginia.

o   Washington D.C. also has a one-party consent statute.[18]

o   Had Tripp been operating outside of Maryland, either in Virginia or D.C., she would have been in the clear legally, if not ethically.

o   Ultimately, a Maryland grand jury failed to indict Tripp, but she could have avoided even the possibility of being prosecuted if she made sure to cross the Potomac before clicking the record button on her tape recorder.

§  When Tripp later began working with Ken Starr to try to re-acquire the same confessions from Monica Lewinsky that may have been initially recorded illegally by Tripp in Maryland, the FBI agents helping Tripp plan her sting made sure she arranged the set-up at the Ritz-Carlton Hotel in Pentagon City, Virginia—a one-party consent state.[19]

Ø  Lists of State Wiretapping Statutes and Consent Rules: So state law matters, and it matters a lot.

o   Sometimes the location where you’re sitting can mean the difference between freedom and a jail sentence.

§  I know some of you are probably annoyed by this lack of uniformity.

§  You’re probably thinking that with 50 different state legal systems and the District of Columbia, how is anybody supposed to find all the different wiretapping rules for every single state in the union?

o   Well, it’s easy.

§  Just look at the footnotes in the annotated transcript of this lesson.

§  I’ve included two comprehensive lists that will tell you everything you need to know about every state’s wiretapping laws.

o   List 1: State Statutes Outlawing the Interception of Wire, Oral and Electronic Communications:

§  List 1 contains the citations for all state-level criminal statutes that outlaw warrantless wiretapping, listed alphabetically by state.[20]

o   List 2: Consent Interceptions Under State Law:

§  List 2 contains the citations for all state-level party-consent rules, also listed alphabetically by state.[21]

·         This second list goes state-by-state and tells you whether it is a one-party-consent state or an all-parties-consent state.

o   These lists are from a phenomenal, 179-page CRS report written by two of the Congressional Research Service’s top experts on domestic surveillance laws: Gina Marie Stevens and Charles Doyle.

§  I’ll put a link to the pdf copy of this report in the footnotes of the annotated transcript of this lesson.[22]

 

2.1.3.5 Focus on Federal Law in this Lecture Series

For the most part, we won’t be talking much about state law in this lecture series.

The agencies we focus on throughout these courses—the agencies in the U.S. Intelligence Community—are all federal agencies governed primarily by federal law.

As a result, this introduction to legal sources course—and most of the substantive courses that follow—will deal almost exclusively with federal law.

If you’re ever lucky enough to work for an intelligence agency as a lawyer someday then it will be federal law that will govern most aspects of your work.

So that’s what I’m teaching in this starter course.

 

2.1.3.6 The Problem of State-Level Intelligence Operations

Now, this is not to say that state law is never important to the intelligence topics addressed in this course.

State law is incredibly important to domestic intelligence activities affecting United States persons.

In fact, state law may even be more important than federal law because of the trend toward outsourcing intelligence gathering to state and local law enforcement.

DHS fusion centers[23] and the FBI’s joint terrorism task forces—not to mention DoD’s ever-expanding domestic operations—are all turning our local law enforcement agencies into an army of intelligence gatherers.

 

As of April 30, 2012, the FBI had only 13,851 special agents.[24]

There are over 1.1 million full-time employees of state and local law enforcement agencies.[25]

There are more state law enforcement agencies than FBI agents.

There are only 13,851 FBI agents.[26]

There are 18,000 state-level law enforcement agencies nationwide.[27]

 

That’s why I say that the state law governing your local police might be even more important than federal intelligence law when it comes to preserving your freedom.[28]

Unfortunately, I had to limit this series to intelligence law at the federal level.

I wish I could teach you everything about state-level intelligence law as well, but this series of lectures is already too long.

It would be almost impossible to cover the specific details of 50 different state legal systems effectively in a reasonable amount of time.[29]

Hopefully, I’ll be able to devote an entire series to the topic later on.[30]

 

2.1.3.7 The Federal System as a Model for Most State Legal Systems

For now you should just focus on mastering the federal legal system as a starting place.

Learning about the structure of the federal system is actually a great starting place because many state legal systems are very similar to the federal model.

 

Footnotes


[1] The federal government theoretically lacks the power to regulate purely local conduct with no connection to interstate commerce, but the Court has found that the cumulative effect of local conduct is sufficient to bring it within the federal commerce power. Wickard v. Filburn, 317 U.S. 111 (1942). In addition, as a practical matter the federal government may exert considerable influence over local laws outside federal commerce clause jurisdiction by using its spending power to entice states into adopting certain policies or adhering to certain federal regulations as a condition of receiving particular federal funding or grants. This allows Congress to impose standards outside of its enumerated powers on issues where uniform state laws are deemed to be in the national interest. See generally Congressional Research Serv., The Constitution of the United States of America: Analysis and Interpretation, Article I, § 8: Legislative Powers, S. Doc. No. 108-17 (2002), available at https://intelligencelaw.com/files/pdf/law_library/crs/CRS_Article_I_2002.pdf (“It was not until 1947 that the right of Congress to impose conditions upon grants-in-aid over the objection of a State was squarely presented. The Court upheld Congress’s power to do so in Oklahoma v. Civil Service Commission. [330 U.S. 127 (1947).] The State objected to the enforcement of a provision of the Hatch Act that reduced its allotment of federal highway funds because of its failure to remove from office a member of the State Highway Commission found to have taken an active part in party politics while in office. The Court denied relief on the ground that, ‘‘[w]hile the United States is not concerned with, and has no power to regulate local political activities as such of State officials, it does have power to fix the terms upon which its money allotments to states shall be disbursed.... The end sought by Congress through the Hatch Act is better public service by requiring those who administer funds for national needs to abstain from active political partisanship. So even though the action taken by Congress does have effect upon certain activities within the State, it has never been thought that such effect made the federal act invalid.’’ [330 U.S. 127, 143 (1947).] The general principle is firmly established. ‘‘Congress has frequently employed the Spending Power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.”) (some internal footnotes omitted).

[2] U.S. Const., art. VI, § 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.").

[3] See generally U.S. Const. amend. X (“powers not delegated to the [federal government in] the Constitution […] are reserved to the States respectively, or to the people.”).

[4] There are a few exceptions to the rule that FBI agents can only investigate federal crimes. The FBI has limited statutory jurisdiction to investigate a few specific state crimes such as the killing of state law enforcement officers (28 U.S.C. 540), violent crimes against interstate travelers (28 U.S.C. 540A), and serial killers (28 U.S.C. 540B). These special areas of state-crime jurisdiction only apply, however, if the state in question explicitly requests FBI assistance. If the state doesn’t request FBI assistance investigating these state-level offenses, then the FBI cannot assume jurisdiction unilaterally.

It is also important to point out that, these special grants of state-crime investigative jurisdiction were given to the FBI by the United States Congress in federal enabling statutes. The FBI didn’t simply assume this jurisdiction on its own authority. The U.S. Congress had to expressly authorize the agency to engage in these special state-level investigations before it could act outside of its ordinary federal jurisdiction. This is another reminder that a federal agency does not have any legal authority besides the powers given to it by Congress in the various enabling statutes that establish and govern their agency.

[5] Not only do states have concurrent jurisdiction with the federal government when it comes to enforcing federal law, but states also hold a duty to enforce federal law. See Congressional Research Serv., The Constitution of the United States of America: Analysis and Interpretation, Article III, S. Doc. No. 108-17 (2002), available at https://intelligencelaw.com/files/pdf/law_library/crs/CRS_Article_III_2002.pdf (“In Testa v. Katt, [330 U.S. 386 (1947)] the Court unanimously held that state courts, at least in regard to claims and cases analogous to claims and cases enforceable in those courts under state law, are as required to enforce penal laws of the United States as they are to enforce remedial laws. Respecting Rhode Island’s claim that one sovereign cannot enforce the penal laws of another, Justice Black observed that the assumption underlying this claim flew ‘‘in the face of the fact that the States of the Union constitute a nation’’ and the fact of the existence of the Supremacy Clause. [Citing 330 U.S. at 389. See, for a discussion as well as an extension of Testa, FERC v. Mississippi, 456 U.S. 742 (1982). Cases since Testa requiring state court enforcement of federal rights have generally concerned federal remedial laws. E.g., Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962); Sullivan v. Little Hunting Park, 396 U.S. 229 (1969). The Court has approved state court adjudication under 42 U.S.C. § 1983, Maine v. Thiboutot, 448 U.S. 1, 3 n.1 (1980), but curiously in Martinez v. California, 444 U.S. 277, 283 n.7 (1980) (emphasis by Court), it noted that it has ‘‘never considered . . . the question whether a State must entertain a claim under 1983.’’ See also Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 234 n.7 (1987) (continuing to reserve question). But with Felder v. Casey, 487 U.S. 131 (1988), and Howlett by Howlett v. Rose, 496 U.S. 356 (1990), it seems dubious that state courts could refuse. Enforcement is not limited to federal statutory law; federal common law must similarly be enforced. Free v. Brand, 369 U.S. 663 (1962).]”).

[6] U.S. Const., art. VI, § 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.").

[7] See generally Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (“Absent explicit pre-emptive language, we have recognized at least two types of implied pre-emption: field pre-emption, where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, . . . and conflict pre-emption, where compliance with both federal and state regulations is a physical impossibility, . . . or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”) (internal quotation marks and case citations omitted); see also generally Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142 (1963) (“Preemption of state law by federal statute or regulation is not favored ‘in the absence of persuasive reasons—either that the nature of the regulated subject matters permits no other conclusion, or that the Congress has unmistakably so ordained.”).

[8] Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 87 Stat. 197, 18 U.S.C. 2510 - 2520 (1970 ed.); 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 (“Title III of the Omnibus Crime Control and Safe Streets Act of 1968 is a “comprehensive wiretapping and electronic eavesdropping statute that not only outlawed both activities in general terms but that also permitted federal and state law enforcement officers to use them under strict limitations designed to meet the objections in Berger [v. New York, 388 U.S. 41 (1967).].”).

Under federal law, it is a felony punishable by up to 5 years in prison and a $250,000 fine for an individual to intercept someone else’s communications without consent or a court order. The fine is up to $500,000 for organizations like private intelligence contractors that unlawfully intercept communications in violation of Title III or the Electronic Communications Privacy Act (ECPA). 18 U.S.C. 2511(4)(a) (““Except as provided in (b) of this subsection or in subsection (5), whoever violates subsection (1) of this section shall be fined under this title* or imprisoned not more than five years, or both.”); 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 (“Interceptions in violation of Title III/ECPA are generally punishable by imprisonment for not more than five years and/or a fine of not more than $250,000 for individuals and not more than $500,000 for organizations. The same penalties apply to the unlawful capture of cell phone and cordless phone conversations, since the Homeland Security Act [116 Stat. 2158 (2002)] repealed the reduced penalty provisions that at one time applied to the unlawful interceptions using radio scanners and the like. [18 U.S.C. 2511(4)(b)(2000 ed.)]”).

[9] See 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 (“It is a federal crime to wiretap or to use a machine to capture the communications of others without court approval, unless one of the parties has given their prior consent. It is likewise a federal crime to use or disclose any information acquired by illegal wiretapping or electronic eavesdropping. Violations can result in imprisonment for not more than five years; fines up to $250,000 (up to $500,000 for organizations); in civil liability for damages, attorneys’ fees and possibly punitive damages; in disciplinary action against any attorneys involved; and in suppression of any derivative evidence. Congress has created separate but comparable protective schemes for electronic communications (e.g., e-mail) and against the surreptitious use of telephone call monitoring practices such as pen registers and trap and trace devices.”).

[10] 18 U.S.C. 2511(1); 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 (“At the heart of Title III/ECPA lies the prohibition against illegal wiretapping and electronic eavesdropping, 18 U.S.C. 2511(1), that bans:

          any person from

          intentionally

          intercepting, or endeavoring to intercept,

          wire, oral or electronic communications

          by using an electronic, mechanical or other device

          unless the conduct is specifically authorized or expressly not covered, e.g.

o    one of the parties to the conversation has consent to the interception

o    the interception occurs in compliance with a statutorily authorized, (and ordinarily judicially supervised) law enforcement or foreign intelligence gathering interception,

o    the interception occurs as part of providing or regulating communication services,

o    certain radio broadcasts, and

o    in some places, spousal wiretappers.”) (emphasis added).

[11] Md. Cts. & Jud. Pro. Code Ann. §10-402 (requiring all party to consent to monitoring in order to legally record telephone conversations).

[12] See Michael Isikoff & Evan Thomas, Clinton and the Intern, Newsweek, Feb. 2, 1998, available at http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/nwcover012698f.htm.

[13] Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 87 Stat. 197, 18 U.S.C. 2510 - 2520 (1970 ed.) (requiring only one party’s consent to record communications).

[14] Md. Cts. & Jud. Pro. Code Ann. §10-402 (requiring all party to consent to monitoring in order to legally record telephone conversations).

[15] Md. Cts. & Jud. Pro. Code Ann. §10-402 (requiring all party to consent to monitoring in order to legally record telephone conversations).

[16] Linda Tripp was investigated by a Maryland grand jury for possible violation of the state’s felony wiretap statute. See CNN.com, What Goes Around Comes Around: Tripp’s under Investigation, Sept. 22, 1998, available at http://articles.cnn.com/1998-09-22/politics/tripp_1_grand-jury-conversations-radio-shack-tape-recorder/

[17] Va.Code §19.2-62 (requiring only one party's consent to record telephone conversations).

[18] D.C.Code §23-542.

[19] Ultimately, the FBI arranged the re-recording to take place when Tripp met Lewinsky for lunch at the Ritz-Carlton Hotel in Pentagon City, Virginia—safely within the one-party consent zone of Virginia. See Michael Isikoff & Evan Thomas, Clinton and the Intern, Newsweek, Feb. 2, 1998, available at http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/nwcover012698f.htm.

[20]State Statutes Outlawing the Interception of Wire(w), Oral(o) and Electronic Communications(e)

Ø  Alabama: Ala.Code §§13A-11-30 to 13A-11-37(w/o)

Ø  Alaska: Alaska Stat. §§42.20.300 to 42.20.390 (w/o/e)

Ø  Arizona: Ariz.Rev.Stat.Ann. §§13-3001 to 13-3009 (w/o/e)

Ø  Arkansas: Ark.Code §§5-60-120, 23-17-107(w/o/e)

Ø  California: Cal.Penal Code §§631(w), 632(o), 632.7(e)

Ø  Colorado: Colo.Rev.Stat. §§18-9-301 to 18-9305(w/o/e)

Ø  Connecticut: Conn.Gen.Stat.Ann. §§53a-187 to 53a189, 54-41t (w/o)

Ø  Delaware: Del.Code tit.11 §§ 2401, 2402(w/o/e)

Ø  Florida: Fla.Stat.Ann. §§ 934.02, 934.03(w/o/e)

Ø  Georgia: Ga.Code §16-11-62 (w/o/e)

Ø  Hawaii: Hawaii Rev.Stat. §§ 711-1111, 803-41, 80342(w/o/e)

Ø  Idaho: Idaho Code §§ 18-6701, 18-6702(w/o/e)

Ø  Indiana: Ind.Code Ann. §§ 35-33.5-1-5, 35-33.5-55(w/e)

Ø  Iowa: Iowa Code Ann. §§272.8, 808B.2(w/o/e)

Ø  Kansas: Kan.Stat.Ann. §21-4001(w/o); 21-4002(w)

Ø  Kentucky: Ky.Rev.Stat. §§526.010, 526.020(w/o)

Ø  Louisiana: La.Rev.Stat.Ann. §§ 15:1302, 15:1303 (w/o/e)

Ø  Maine: Me.Rev.Stat.Ann. tit. 15 §§ 709, 710(w/o)

Ø  Maryland: Md.Cts. & Jud.Pro.Code Ann. §§ 10-401, 10-402(w/o/e)

Ø  Massachusetts: Mass.Gen.Laws Ann. ch.272 §99 (w/o)

Ø  Michigan: Mich.Comp.Laws Ann. §§750.539a, 750.539c(o); 750.540(w)

Ø  Minnesota: Minn.Stat.Ann. §§ 626A.01, 626A.02 (w/o/e)

Ø  Mississippi: Miss.Code §41-29-533(w/o/e)

Ø  Missouri: Mo.Ann.Stat. §§ 542.400 to 542.402 (w/o)

Ø  Montana: Mont.Code Ann. §45-8-213(w/o/e)

Ø  Nebraska: Neb.Rev.Stat. §§ 86-271 to 86-290 (w/o/e)

Ø  Nevada: Nev.Rev.Stat. §§ 200.610, 200.620(w), 200.650(o)

Ø  New Hampshire: N.H.Rev.Stat.Ann. §§ 570-A:1, 570A:2 (w/o)

Ø  New Jersey: N.J.Stat.Ann. §§ 2A:156A-2, 2A:156A3(w/o/e)

Ø  New Mexico: N.M.Stat.Ann. §30-12-1(w)

Ø  New York: N.Y.Penal Law §§ 250.00, 250.05(w/o/e)

Ø  North Carolina: N.C.Gen.Stat. §§ 15A-286, 15A287(w/o/e)

Ø  New Hampshire: N.H.Rev.Stat.Ann. §§ 570-A:1, 570-A:2 (w/o)

Ø  New Jersey: N.J.Stat.Ann. §§ 2A:156A-2, 2A:156A3(w/o/e)

Ø  New Mexico: N.M.Stat.Ann. §30-12-1(w)

Ø  New York: N.Y.Penal Law §§ 250.00, 250.05(w/o/e)

Ø  North Carolina: N.C.Gen.Stat. §§ 15A-286, 15A287(w/o/e)

Ø  North Dakota: N.D.Cent.Code §§12.1-15-02, 12.1-15-04 (w/o)

Ø  Ohio: Ohio Rev.Code §§ 2933.51, 2933.52 (w/o/e)

Ø  Oklahoma: Okla.Stat.Ann. tit.13 §§ 176.2, 176.3 (w/o/e)

Ø  Oregon: Ore.Rev.Stat. §§165.535 to 165.545 (w/o/e)

Ø  Pennsylvania: Pa.Stat.Ann. tit.18 §§ 5702, 5703 (w/o/e)

Ø  Rhode Island: R.I.Gen.Laws §§11-35-21(w/o/e)

Ø  South Carolina: S.C. Code Ann. §§16-17-470, 17-30-10 to 17-30-20 (w/o/e)

Ø  South Dakota: S.D.Cod.Laws §§ 23A-35A-1, 23A-35A-20 (w/o)

Ø  Tennessee: Tenn.Code Ann. §39-13-601(w/o/e)

Ø  Texas: Tex.Penal Code. § 16.02; Tex. Crim. Pro. Code art. 18.20 (w/o/e)

Ø  Utah: Utah Code Ann. §§ 76-9-405, 77-23a-3, 77-23a-4 (w/o/e)

Ø  Virginia: Va.Code §§ 19.2-61, 19.2-62(w/o/e)

Ø  Washington: Wash.Rev.Code Ann.§9.73.030 (w/o)

Ø  West Virginia: W.Va.Code §§ 62-1D-2, 62-1D-3(w/o/e)

Ø  Wisconsin: Wis.Stat.Ann. §§ 968.27, 968.31(w/o/e)

Ø  Wyoming: Wyo.Stat. §§ 7-3-701, 7-3-702(w/o/e)

Ø  District of Columbia: D.C.Code §§ 23-541, 23-542(w/o)."

Gina Marie Stevens & Charles Doyle, Congressional Research Serv., Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, Appendix A, 98-326 (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-326_12-3-2009.pdf.

[21]Consent Interceptions Under State Law

Ø  Alabama: Ala.Code §13A-11-30 (one party consent)

Ø  Alaska: Alaska Stat. §§42.20.310, 42.20.330 (one party consent)

Ø  Arizona: Ariz.Rev.Stat.Ann. §13-3005 (one party consent)

Ø  Arkansas: Ark.Code §5-60-120 (one party consent)

Ø  California: Cal. Penal Code §§ 631, 632 (one party consent for police; all party consent otherwise), 632.7 (all party consent)

Ø  Colorado: Colo.Rev.Stat. §§18-9-303, 18-9-304 (one party consent) 

Ø  Connecticut: Conn.Gen.Stat.Ann. §§53a-187, 53a-188 (criminal proscription: one party consent); §52-570d (civil liability: all party consent except for police)

Ø  Delaware: Del.Code tit.11 §2402 (one party consent)

Ø  Florida: Fla.Stat.Ann. §934.03 (one party consent for the police; all party consent for others)

Ø  Georgia: Ga.Code §16-11-66 (one party consent)

Ø  Hawaii: Hawaii Rev.Stat. §§ 711-1111, 803-42 (one party consent)

Ø  Idaho: Idaho Code §18-6702 (one party consent)

Ø  Illinois: Ill.Comp.Stat.Ann. ch.720 §§5/14-2, 5/14-3 (all party consent with law enforcement exceptions)

Ø  Indiana: Ind.Code Ann. §35-33.5-1-5 (one party consent )

Ø  Iowa: Iowa Code Ann. §808B.2 (one party consent)

Ø  Kansas: Kan.Stat.Ann. §§21-4001, 21-4002 (one party consent)

Ø  Kentucky: Ky.Rev.Stat. §526.010 (one party consent)

Ø  Louisiana: La.Rev.Stat.Ann. §15:1303 (one party consent)

Ø  Maine: Me.Rev.Stat.Ann. tit. 15 §709 (one party consent)

Ø  Maryland: Md.Cts. & Jud.Pro.Code Ann. §10-402 (all party consent) 

Ø  Massachusetts: Mass.Gen.Laws Ann. ch.272 §99 (all parties must consent, except in some law enforcement cases)

Ø  Michigan: Mich.Comp.Laws Ann. §750.539c (proscription regarding eavesdropping on oral conversation: all party consent, except that the proscription does not apply to otherwise lawful activities of police officers)

Ø  Minnesota: Minn.Stat.Ann. §626A.02 (one party consent)

Ø  Mississippi: Miss.Code §41-29-531 (one party consent)

Ø  Missouri: Mo.Ann.Stat. §542.402 (one party consent)

Ø  Montana: Mont.Code Ann. §§45-8-213 (all party consent with an exception for the performance of official duties)

Ø  Nebraska: Neb.Rev.Stat. § 86-290 (one party consent) 

Ø  Nevada: Nev.Rev.Stat. §§200.620, 200.650 (one party consent)

Ø  New Hampshire: N.H.Rev.Stat.Ann. §570-A:2 (all party consent)

Ø  New Jersey: N.J.Stat.Ann. §§2A:156A-4 (one party consent)

Ø  New Mexico: N.M.Stat.Ann. §§30-12-1 (one party consent)

Ø  New York: N.Y.Penal Law §250.00 (one party consent) 

Ø  North Carolina: N.C.Gen.Stat. §15A-287 (one party consent)

Ø  North Dakota: N.D.Cent.Code §§12.1-15-02 (one party consent)

Ø  Ohio: Ohio Rev.Code §2933.52 (one party consent) 

Ø  Oklahoma: Okla.Stat.Ann. tit.13 §176.4 (one party consent)

Ø  Oregon: Ore.Rev.Stat. §165.540 (one party consent for wiretapping and all parties must consent for other forms of electronic eavesdropping)

Ø  Pennsylvania: Pa.Stat.Ann. tit.18 §5704 (one party consent for the police; all parties consent otherwise)

Ø  Rhode Island: R.I.Gen.Laws §§11-35-21 (one party consent)

Ø  South Carolina: S.C. Code Ann. § 17-30-30 (one party consent)

Ø  South Dakota: S.D.Comp.Laws §§23A-35A-20 (one party consent)

Ø  Tennessee: Tenn.Code Ann. §39-13-601 (one party consent)

Ø  Texas: Tex.Penal Code §16.02 (one party consent) 

Ø  Utah: Utah Code Ann. §§77-23a-4 (one party consent) 

Ø  Virginia: Va.Code §19.2-62 (one party consent)

Ø  Washington: Wash.Rev.Code Ann. §9.73.030 (all parties must consent, except that one party consent is sufficient in certain law enforcement cases)

Ø  West Virginia: W.Va.Code §62-1D-3 (one party consent)

Ø  Wisconsin: Wis.Stat.Ann. §968.31 (one party consent) 

Ø  Wyoming: Wyo.Stat. §7-3-702 (one party consent) 

Ø  District of Columbia: D.C.Code §23-542 (one party consent).

Gina Marie Stevens & Charles Doyle, Congressional Research Serv., Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, Appendix B, 98-326 (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-326_12-3-2009.pdf.

[22] 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.

[23] See Information Fusion Centers and Privacy, Electronic Privacy Information Center, http://epic.org/privacy/fusion/; see also Todd Masse & John Rollins, Congressional Research Serv., A Summary of Fusion Centers: Core Issues and Options for Congress (2007), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL34177_9-19-2007.pdf (“Arguments against fusion centers often center around the idea that such centers are essentially pre-emptive law enforcement — that intelligence gathered in the absence of a criminal predicate is unlawfully gathered intelligence.  Some might argue that the further law enforcement, public safety and private sector representatives get away from a criminal predicate, the greater the chances that civil liberties may be violated.  Furthermore, it could be argued that one of the risks to the fusion center concept is that individuals who do not necessarily have the appropriate law enforcement or broader intelligence training will engage in intelligence collection that is not supported by law.[23]  The concern is to what extent, if at all, First Amendment protected activities may be jeopardized by fusion center activities. According to the American Civil Liberties Union (ACLU), “We’re setting up essentially a domestic intelligence agency, and we’re doing it without having a full debate about the risks to privacy and civil liberties.” Furthermore, the ACLU is also concerned with having the Department of Homeland Security (DHS) perform a coordinating role at the federal level with respect to these centers.  “We are granting extraordinary powers to one agency, without adequate transparency or safeguards, that hasn’t shown Congress that it’s ready for the job.” [Citing See Shane Harris, “Issues and Ideas — Fusion Centers Raise a Fuss,” in National Journal, February 10, 2007.].”).

[24] See FBI Homepage, FBI—Quick Facts, at www.fbi.gov/about-us/quick-facts (“On April 30, 2012, we had a total of 35,850 employees.That included 13,851 special agents and 21,999 support professionals, such as intelligence analysts, language specialists, scientists, information technology specialists, and other professionals.”) (visited June 18, 2012).

[25] See Bureau of Justice Statistics Website, Office of Justice Programs, United States Department of Justice, at http://bjs.ojp.usdoj.gov/index.cfm (listing the following statistics:

Ø  State and Local Law Enforcement Statistics - Totals

o    Total Number of State and Local Law Enforcement Agencies: 18,000

o    Total Full-Time Employees: 1,133,000

o    Total Sworn Personnel: 765,000

o    URL: http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2216.

Ø  Local Police Departments (in 2008)

o    Local Police Departments: 12,501

o    Full-Time Employees: 593,000

o    Sworn Officers: 461,000

o    URL: http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=71.

Ø  Sheriffs’ Offices (in 2008)

o    Sheriffs’ Offices: 3063

o    Full-Time Employees: 353,000

o    Sworn Officers: 183,000

o    URL: http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=72.

Ø  Campus Law Enforcement (in 2004-05)

o    Campus Law Enforcement Agencies: 750 (surveyed by bjs)

o    Full-Time Employees: 25,000

o    Sworn Personnel: 13,000

o    URL: http://bjs.ojp.usdoj.gov/index.cfm?ty=tp&tid=76.).

[26] See FBI Homepage, FBI—Quick Facts, at www.fbi.gov/about-us/quick-facts (“On April 30, 2012, we had a total of 35,850 employees.That included 13,851 special agents and 21,999 support professionals, such as intelligence analysts, language specialists, scientists, information technology specialists, and other professionals.”) (visited June 18, 2012).

[27] See Bureau of Justice Statistics Website, Office of Justice Programs, United States Department of Justice, at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2216 (listing the following statistics:

Ø  State and Local Law Enforcement Statistics - Totals

o    Total Number of State and Local Law Enforcement Agencies: 18,000

o    Total Full-Time Employees: 1,133,000

o    Total Sworn Personnel: 765,000

o    URL: http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2216.).

[28] To give you an example of how large and potentially dangerous adding 1.1 million state-level law enforcement personnel to the ranks of domestic intelligence gatherers, consider the devastating effect of the KGB’s omnipresent domestic intelligence activities on the lives of Soviet citizens and government representatives. Now consider that, at its peak, the KGB employed only about 480,000 employees. By the end of the Soviet Union in 1991, the KGB employed more than 480,000 employees and soldiers but focused merely a small percentage of their efforts on countering foreign threats abroad. Only an estimated 10,000 KGB personnel were engaged in foreign intelligence activities outside the U.S.S.R. while 470,000 were focused on domestic counterintelligence aimed at controlling both the citizenry and members of the Soviet government. The loss of individual liberty was comprehensive. The number of Soviet deaths attributed to the KGB’s domestic intelligence machine remains unknown, but most estimates place the number in the tens of millions. See generally KGB, Encyclopedia Britannica (Student and Home Edition 2009).

 

As of June 2012, we in the United States have more than three times as many full-time employees of state and federal agencies that are charged with conducting some form of domestic intelligence operations than the KGB employed at its apex. And this is only those employed directly by the government. This number doesn’t include the countless private security guards, informants, and the massive intelligence industrial complex that has developed since 9/11. As a result, domestic intelligence operatives in the United States may exceed the KGB’s largest numbers 5 to 1. The risks inherent in this sort of excess are too numerous to address fully in this footnote.

 

For an excellent examination of the growth of the public and private intelligence industry in America, read the articles and supporting materials associated with the Washington Post’s excellent investigative series “Top Secret America” headed by Dana Priest and William Arkin. Top Secret America: A Washington Post Investigation, Project Page, available at http://projects.washingtonpost.com/top-secret-america/.

[29] If you’re interested in studying a few of the federal-level regulations that deal with state-level intelligence operations by law enforcement, see 28 C.F.R. part 23; see also Todd Masse & John Rollins, Congressional Research Serv., A Summary of Fusion Centers: Core Issues and Options for Congress (2007), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL34177_9-19-2007.pdf (“At the state and local levels, if there is any analogue to the Attorney General’s guidelines for multi-jurisdictional criminal intelligence systems, it is 28 Code of Federal Regulations (CFR) -(Judicial Administration), Chapter 1 (Department of Justice), Part 23 (criminal intelligence systems operating policies).  Many centers cite 28 CFR, Part 23 as the guiding legal mechanism for their criminal intelligence operations. By its terms, 28 CFR, Part 23, applies to “all criminal intelligence systems operating through support under the Omnibus Crime Control and Safe Streets Act of 1968, as amended.”  From the perspective of intelligence collection, the 28 CFR, Part 23 standard is reasonable suspicion. One of the operating principles of 28 CFR, Part 23 is that “A project shall collect and maintain criminal intelligence information concerning an individual only if there is reasonable suspicion that the individual is involved in criminal conduct or activity and the information is relevant to that criminal conduct or activity. Reasonable Suspicion or Criminal Predicate is established when information exists which established sufficient facts to give a trained law enforcement or criminal investigative agency officer, investigator, or employee a basis to believe that there is a reasonable possibility that an individuals or organization is involved in a definable criminal activity or enterprise. See 28 CFR, Part 23, Section 23.20 (a) and (c) (Operating Principles).”).

[30] If you’re really interested in state-level issues, there’s a great set of videos on YouTube from a symposium on domestic intelligence gathering by state and local police hosted by the Brennan Center for Justice at NYU Law School back on March 18, 2011. See Symposium, Intelligence Collection and Law Enforcement: New Roles, New Challenges, Brennan Center for Justice, New York University School of Law, March 18, 2011, available at www.youtube.com/user/TheBrennanCenter.


© 2012 David Alan Jordan. All rights reserved.