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On The Front Lines

In Digital Privacy Case, Rutherford Institute Urges Supreme Court to Strictly Enforce Wiretapping Law and Safeguard Core Privacy Protections

WASHINGTON, D.C. — Weighing in on a major digital privacy case before the U.S. Supreme Court, The Rutherford Institute is urging the high court to strictly enforce the nation’s federal wiretapping law and maintain core privacy protections enacted by Congress in 1968 to guard against the misuse of bugs and wiretaps by government agents. In an amicus brief filed in Dahda v. United States of America, which deals with whether evidence obtained in violation of a federal wiretapping law can be used in a criminal trial, Rutherford Institute attorneys are asking the Supreme Court to enforce the letter of laws protecting the privacy of citizens, especially as they pertain to the government’s ability to monitor Americans’ communications.

Attorneys Erin Glenn Busby and Lisa R. Eskow of Austin, Texas, and the University of Texas School of Law Supreme Court Clinic assisted The Rutherford Institute with the amicus curiae brief in Dahda v. U.S.

The Rutherford Institute’s amicus brief in Dahda v. U.S. is available at

“Unlawful surveillance of any kind by the government and its partners-in-crime hasn’t made America any safer, and it certainly isn’t helping to preserve our freedoms,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “At a time when the government has the tools to spy on virtually all our private communications and is lobbying Congress to adopt legislation that would not only expand the surveillance state but entrench its powers, it is vital that the courts safeguard and strictly enforce whatever laws remain in place to protect the privacy of citizens.”

In response to public frustration over the use of “bugs” and wiretaps by law enforcement and private entities to intercept and intrude upon individuals’ private communications, Congress enacted Title III of the Omnibus Crime Control Act of 1968 to prohibit wiretapping except in very limited circumstances and under strict supervision by judges. Title III provides that wiretapping of electronic communications is permitted only when law enforcement can show probable cause that the target of the wiretap is committing or has committed a specific crime and that other investigative procedures have or would fail to uncover evidence of the offense. Congress also imposed numerous procedural requirements upon wiretap applications and orders to protect the privacy of citizens, including a requirement that a wiretap order may be issued only by a judge within the territorial jurisdiction where the interception is to occur.

In 2011, during the course of an investigation into suspected marijuana distribution, federal agents obtained a wiretap from a federal court in Kansas for Los and Roosevelt Dahda’s mobile phones. However, in violation of the requirements of Title III, the court order allowed agents to intercept phone communications beyond the court’s territorial jurisdiction. After the Dahdas were charged with federal drug offenses, they moved to suppress evidence obtained under the wiretap order, invoking a provision of Title III that requires suppression of evidence obtained under an order that “on its face” violates the law. The Dahdas’ motion to suppress was rejected by both the trial court and on appeal, with both courts reasoning that Title III’s provision limiting the territorial scope of a wiretap order is not a “core” protection and so suppression was not required.

In weighing in on the case, The Rutherford Institute is asking the U.S. Supreme Court to reverse the lower court ruling and safeguard both the letter and the spirit of the law as it pertains to privacy protections. The Institute’s amicus brief examines the long history that led Congress to strictly limit wiretapping, concluding that Title III was clearly intended to require suppression of evidence obtained under a defective order.