Legal Definitions - electronic surveillance

Electronic Surveillance

Electronic surveillance refers to the secret acquisition of information by using electronic, mechanical, or other technological devices to monitor or intercept private communications or activities. This legal concept is primarily concerned with situations where individuals have a reasonable expectation of privacy regarding their communications or actions. The "contents" of a communication can include details about who is communicating, the fact that a communication occurred, or the actual substance and meaning of the message.

The core principle is that if a person reasonably believes their communication or activity is private, then government or law enforcement use of technology to secretly gather that information constitutes electronic surveillance and is subject to legal restrictions, often requiring a warrant.

Examples of electronic surveillance include:

• Example 1: Covert Keystroke Logging on a Personal Computer
  A government agency suspects an individual of illegal activity and, without their knowledge, installs software on their home computer that records every keystroke they type and captures screenshots of their activity. This software then transmits this data back to the agency.

  How this illustrates: This is electronic surveillance because a technological device (the keystroke logging software) is used to secretly acquire the contents of the individual's electronic communications and activities (emails, documents, web searches) on their personal computer. The individual has a strong reasonable expectation of privacy when using their computer within their own home.

• Example 2: Drone Monitoring of a Private Residence
  A private investigator, hired by a party in a civil lawsuit, uses a high-altitude drone equipped with advanced cameras and microphones to record video and audio of the opposing party's activities within their fenced backyard and conversations held there over several days.

  How this illustrates: This constitutes electronic surveillance because a mechanical/electronic device (the drone with cameras and microphones) is used to secretly gather information (video and audio) about a person's activities and communications. Individuals generally have a reasonable expectation of privacy in their private backyard, even if it's outdoors.

• Example 3: Unauthorized Access to Encrypted Messaging App Data
  Law enforcement, without a proper warrant, compels a technology company to provide access to the encrypted private messages exchanged between two suspects on a secure messaging application, believing it contains evidence of a crime.

  How this illustrates: This is electronic surveillance because electronic means are used to acquire the "contents" (the actual messages) of private electronic communications. Users of encrypted messaging apps have a high reasonable expectation of privacy that their conversations will remain confidential and secure from unauthorized access.