Requirements for Review of Wiretaps, effective 8/1/08
Electronic Surveillance Unit
- The Electronic Surveillance Unit (ESU) of the Criminal Division's Office of Enforcement Operations will conduct the initial review of the necessary pleadings for proposed applications (collectively, "the Packet") for electronic surveillance, which must include:
a) A complete affidavit;
b) The application by the Assistant United States Attorney to the Court; and
c) The proposed order(s).
See JM 9-7.110, Format for the Authorization Request.
- The Packet must be submitted by the USAO to ESU electronically via email[FN1] to ESU.Requests@usdoj.gov. The Packet must be submitted in PDF format.[FN2] Individual ESU attorneys will no longer accept applications through their individual DOJ email accounts.
- The following will not be accepted for processing:
- "draft" affidavits or packets;
- packets submitted by law enforcement agents without the review of an AUSA;
- packets which are not submitted in PDF format;
- stale packets, meaning original and spinoff packets which do not comply with the following two rules:
- 21-day rule as to toll hits of "dirty calls"As to applications for a new facility, the affidavit must show a "dirty" hit within 21 days of the date on which the Department authorizes the filing of the application.[FN3] A "dirty" hit is one which indicates that the facility is being used in furtherance of the offense conduct.
- 10-day rule as to current toll/pen analysisAll applications must include current phone records, meaning records current within 10 days prior to submission to ESU. One purpose of this requirement is to discern whether the facility is still active, e.g., that the phone has not been dropped.[FN4]
- Non-compliant or stale packets will not be accepted. This provision is not meant to encompass minor deficiencies or typographical errors, but rather, packets which are facially deficient in material respects. ESU will provide notice to the USAO when a packet is not accepted. If amended by the USAO to correct such deficiencies, the packet will be placed in the back of the queue for processing following their compliant amendment. This provision does not apply to emergency applications, which are addressed in paragraph 5 below.
- Applications which present true emergencies, e.g., those which address situations involving immediate danger of death or serious bodily injury and the like, will continue to be processed consistent with JM 9-7.112.
FN 1. Just as with any email communication to the usdoj.gov system, applicants must take special care not to type "usdoj.com", as all email sent to that domain name is delivered to a private party unaffiliated with the Department.
FN 2. Some smaller districts, particularly those which maintain what amount to temporary satellite offices in rural areas that are staffed only on certain weekdays by AUSAs based in other cities, have expressed concerns about transition to an electronic system given that such offices may not have JCON service continually available. To serve the needs of such districts, and only in circumstances where JCON is unavailable, packets may be faxed to (803) 726-2180. This number will automatically convert the packet to a PDF format and place it within the email account identified above.
FN 3. The 21-day rule is longstanding and the purpose behind it is described in Section 29 of the Criminal Resource Manual. Obviously, USAOs cannot be expected to determine beforehand when the Department will authorize the filing of the application. This rule simply underscores the fact that the facility-related information contained in the packet should be as recent as practicable, and always within 21 days of the date of submission to ESU.
FN 4. 0f course, there may be circumstances in which the phone is not active for ten days, but other available information demonstrates that the phone may soon become active again. For example, information obtained through a CI, or via intercepts, may demonstrate that the target is temporarily overseas.
[updated March 2009] [cited in Criminal Resource Manual 89]