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In a recent comment Kdog alludes to:

...those guys that think electronic surveillance and wiretapping semantic differences are somehow important.

In the US, is this distinction procedurally important? My layman's notion is that wiretapping is merely a subset of surveillance.

Are warrants for wiretapping easier to obtain than warrants for surveillance? For instance, would it be legally and bureaucratically more difficult to place a hidden camera/microphone next to a suspect's land line telephone than it would be to obtain a wiretap on that same telephone.


Note: This is not a question about the merits of any specific case of wiretapping, or any controversial wiretap. Uncontroversial illustrative examples would be on-topic however.

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    Sorry to need to ask, but how are you defining surveillance? Some aspects, e.g. following/watching someone in a public place don't usually need a warrant in any jurisdiction. – origimbo Jun 8 '18 at 14:55
  • WIretapping is a subset of electronic surveillance, it's a particularly intrusive form though, so it's more "extreme" legally than other forms of surveillance. – David Rice Jun 8 '18 at 15:13
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    @origimbo, In the layman's sense of "careful watching of a person or place, especially by the police or army, because of a crime that has happened or is expected." -Cambridge Dictionary, which obviously could encompass less invasive methods that wouldn't require warrants. But for interest let's have it be surveillance that involves cameras and bugs hidden by lawmen in homes and workplaces expressly for the purpose of surveillance, along with similar methods, that require warrants or covert permissions. – agc Jun 8 '18 at 15:18
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    Discussing the practical distinction between wiretap and surveillance doesn't answer the OP question of the Political distinctions. The additional question regarding warrants might be better posed in the LAW forum. – BobE Jun 8 '18 at 15:36
  • Correct me if I'm wrong, but you don't need a warrant for surveillance. You just need a warrant to go inside, or listen in/tap a phone/open mail. Cops, FBI, Yada Yada can perform surveillance without a warrant. There may be some grey-area in there too. – userLTK Jun 8 '18 at 22:38
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Definition of wiretapping:

Wiretapping means connecting a concealed listening or recording device connected to a communications circuit.

Two things here:

  1. This is obviously a subset of surveillance, which can also include things like following a person and listening to conversations in person.
  2. The mention of a device connected to a phone or other communications device.

Are warrants for wiretapping easier to obtain than warrants for surveillance?

No.

  1. You don't need a warrant for many kinds of surveillance. For example, the police can follow you around all day. You need a warrant for doing something intrusive, like planting a device on someone's phone, intercepting their communications, or searching their room.

  2. Very little surveillance of phone conversations works via wiretapping these days. It is more common for phone conversations to simply be recorded with the assistance of the phone company.

And making a distinction between

  1. Recording phone conversations as part of an investigation, either criminal or counter-espionage.

  2. Recording phone conversations in order to engage in political malfeasance.

This leads to trouble. What if it's both? The problematic thing here is that access to phone conversations was being provided to political partisans. We know this because

  1. The FBI leaked information about them.
  2. Susan Rice had such information.

It's also worth noting that these communications were generally not with what is usually classified as a criminal organization. To my mind, that brings up images of Tony Soprano, that is the mafia. These were conversations with agents of foreign governments. They were being surveilled as part of counter-intelligence operations, not because they were suspected of criminal wrongdoing. Could they also have been engaged in criminal wrongdoing? Sure, but that wasn't why they were under surveillance.

The counter-intelligence aspect did make it easier to obtain warrants. There is a special kind of warrant allowed by the Foreign Intelligence Surveillance Act. As part of the law surrounding these FISA warrants, US citizens are not supposed to be identified. They had to go through extra hoops to identify the US side of these conversations.

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    I would hope that a "communications circuit" includes the RF transmission of signals and not just the physical wired "circuit". Would you agree that wiretapping ought to include clandestine eavesdropping, as in the use of Stingray cell tower simulators? – BobE Jun 8 '18 at 22:53
  • This Q. isn't really about that specific Trump Tower instance that Kdog was commenting about, (plus that instance has its own question already), it's about a controversial distinction or boundary line and its implied political pros and cons in the abstract and in practice. Like Ellis Parker Butler's Pigs is Pigs, but for wiretapping... – agc Jun 9 '18 at 4:05
  • "It is more common for phone conversations to simply be recorded with the assistance of the phone company." This is legally equivalent to wiretapping. Also, there is a third category in addition to criminal/counterespionage and political malfeasance, which is espionage proper which is pretty much what the NSA does all day and night. The legal considerations for espionage are very different from those for criminal purposes. Further there is also commercial espionage/monitoring often for legitimate reasons (e.g. quality control). – ohwilleke Jun 12 '18 at 23:35
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Wiretapping is a subset of surveillance, in that if you are being wiretapped by the government you are being surveilled by the government. Kdog is confusing "wiretapping of Trump and Trump Tower to do political malfeasance" with "wiretapping a suspected (and later charged) criminal who happens to work in Trump Tower because of their criminal actions and their contacts with criminal organizations". No one in that thread actually claims surveillance and wiretapping are notably different. It's notable there is currently an inspector general report ongoing within the FBI to see if wiretapping Manafort (along with other actions) was inappropriate.

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In the domain of politics it is presumed that surveillance

the monitoring of behavior, activities, or other changing information for the purpose of influencing, managing, directing, or protecting people. -Surveillance Studies: An Overview. by David Lyon (2007).

is ongoing continuously, both from within and without.

As the technological capabilities currently exist, it would also be politically practical to presume that all communications are either monitored in real-time; recorded for the potential to analyze at a later date, or be used for parallel construction (e.g., "we already have the data, we now want to use the data as if we acquired the data in a different manner, or post-date the data as if we only acquired the data after a warrant was signed by a magistrate or judge"), possibly for a purpose other than the original scope or goal of the initial surveillance.

Given the above realities as to surveillance and signal monitoring capabilities, the topic of "wiretapping" depends on to what the goals and interest of the entity which engages in the surveillance are. Whether a warrant is required to "wiretap" communications is debatable; as technically that already occur(red|s) at a global level, without a specific "warrant" authorizing said "total information awareness".

The entity which is engaged in the surveillance could decide to use warrants or other court processes as tools to pursue the stated goals of surveillance of the specific target on the "public" record; or use the gathered data as leverage in a "private" political deal.

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