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1077. Electronic Surveillance

Under FISA "electronic surveillance" is defined to include "the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs within the United States . . . ." 50 U.S.C. § 1801(f)(2). The "contents" of a communication is defined to include "any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication," 50 U.S.C. § 1801(n), thus suggesting that the surveillance covered by FISA includes more than simply intercepting the verbal contents of some communication. Cf. 18 U.S.C. § 2510(8) (defining contents under Title III as including "any information concerning the substance, purport, or meaning of that communication").

The legislative history of FISA confirms that this broad definition of electronic surveillance was intended to reach beyond verbal interceptions to other activities. H.R.Rep. No. 1283, 95th Cong., 2d Sess. 51 (1978); see S.Rep. No. 701, 95th Cong., 2d Sess. 35 (1978).

Accordingly, both FISA and Title III apply to the interception of computer data transmissions, voice and display paging devices, and regulate the use by law enforcement officials of pen registers and trap and trace devices. One court has noted that "[i]n contrast [to Title III], it is clear that FISA does regulate silent video surveillance." United States v. Koyomejian, 970 F.2d 536, 540 (9th Cir. 1992) (en banc), cert. denied, 506 U.S. 1005 (1992).

Tone only paging devices are not covered under either FISA or Title III. FISA prohibits the interception of radio communications only when the communications are made "under circumstances in which a person has a reasonable expectation of privacy." 50 U.S.C. § 1801(f)(1). Since the message transmitted by a tone only paging device is not a communication over which there would be a reasonable expectation of privacy, FISA should not prohibit its interception.

[cited in USAM 9-60.400]

Updated June 10, 2015