For the past forty years, theory and practice in electronic surveillance have enjoyed an uneasy coexistence. In theory, under ("Title III"), government agents must use wire and electronic taps sparingly, and only under strict judicial supervision. In practice, however, federal courts have recognized countless loopholes and exceptions, leading critics to wonder whether Title III meaningfully limits state investigatory power.
Nowhere is this tension more apparent than in the context of "minimization." Under Title III, government agents conducting electronic surveillance must "minimize the interception of communications not otherwise subject to interception under this chapter." They must not listen in on any more private communication than is necessary. But what, exactly, must "minimization" entail? The statute itself does not say, though the Senate Report-which endorsed the Warren Court's reasoning in Berger v. New York-suggests that the requirement was meant to apply broadly, against all unnecessary interceptions.
The lower courts, however, had different ideas. Instead of adopting a bright-line rule, federal courts since the 1970s have carved out numerous partial exceptions to the minimization requirement. They have largely exempted foreign-language calls,11 as well as short calls, "ambiguous" calls, and calls monitored during the early stages of an investigation. The underlying test-adopted by the Burger Court in Scott v. United States-is a test of "reasonableness," and grants a high degree of deference to police and prosecutorial decisions.
Seth M. Hyatt,
Text Offenders: Privacy, Text Messages, and the Failure of the Title III Minimization Requirement,
64 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol64/iss4/7