Investigators in at least one state have sought and received court authorization to wiretap communication apps and social media sites rather than traditional landlines or cell phones. Popular social media websites such as Facebook and Instagram (which is now owned by Facebook) have continually been updated over the years to add new ways people can communicate using the apps. This includes a calling feature and a private or direct message feature.
The use of wiretaps by the government during investigations has been around since the late 1960s and is not a new concept. The reason why wiretaps are such a useful investigative tool is because they allow investigators to intercept others’ communications in real time without having to be near their target. In order for investigators to legally wiretap a person’s phone, house, car, or social media, they must first seek a warrant from an authorized judge. Under federal law, the investigator applying for the warrant is required to explain to the judge details about the crime being investigated, whose communications they want to intercept, what type of communications are to be intercepted (voice, calls, text messages, electronic messages, etc.), why other investigative techniques are insufficient to obtain the evidence investigators want, and much more. Individual states have their own wiretap statutes that allow state court judges to authorize wiretap warrants sought by state investigators. Many state wiretap statutes, including Maryland’s, either mirror or are very similar to the federal wiretap statutes.
Traditionally, wiretaps have been used to intercept phone calls via landline or cell phone or cellular text messages. Maryland investigators, however, have successfully used wiretaps to intercept messages and phone calls exchanged via social media in real time. Targeting individual’s social media accounts and apps implicates serious privacy concerns. An increasing number of people rely on these apps to communicate with others. An annual report submitted by Maryland’s judiciary shows the exact number of wiretaps authorized in 2020, the counties where they were sought, the type of wiretap, the length of the surveillance period, and the type of criminal activity investigators were targeting. Nine out of the total 48 requests were either for a social media account (namely, Instagram) or some other unspecified app.
While this may have worked in Maryland, it’s unclear whether other jurisdictions across the country will follow their lead. Federal investigators in California have already tried at least once and failed. During a 2018 investigation into the gang MS-13, the FBI sought to have Facebook held in contempt of court after they refused to create a “backdoor” in their software to allow agents to intercept calls a target made via the Messenger calling function even though they were already intercepting Messenger texts. The hearing and many court filings were sealed so details regarding arguments made by both sides and why the judge sided with Facebook are limited.
The potential future use of social media wiretap warrants is also tenuous due to the type of encryption utilized while communicating via these platforms. Importantly, the reason it was possible to intercept the communications in the Maryland cases is because Facebook and Instagram communications are not end-to-end encrypted (“E2EE”) by default. If a communication or call is protected by E2EE, authorities cannot intercept or listen in on the communication, even with a warrant. Apple’s FaceTime, WhatsApp, Signal, and Telegram are a few examples of E2EE communication apps, among others. Facebook has stated they intend to implement E2EE by default on direct messages via Facebook Messenger and Instagram as early as 2022.
Criminal investigations where wiretap warrants were utilized are often complex, particularly with constant advancements in technology. Our firm has many years of experience in cases involving the use of wiretaps in federal drug conspiracy, money laundering, and federal fraud cases. If you or someone you know has been accused of or charged with crimes where wiretaps were used during the investigation, contact us to learn more about these cases and how we may be able to help.