7 August 2001

See contents of full IRS Handbook of Criminal Investigation: http://cryptome.org/irs-ci/irs-ci.htm

Handbook 9.4
Investigative Techniques


Chapter 7
Consensual Monitoring

Contents

[9.4] 7.1  (06-30-1998)
Overview

  1. This chapter contains policy and procedural information concerning the investigative use of electronic or mechanical monitoring devices with the consent of one or more parties to conversations. For procedural reasons, conversations are categorized as either telephone or non-telephone.
    NOTE:
    Before any monitoring may take place, there must be no question as to whether the use of any investigative device is legal under the circumstances.

[9.4] 7.2  (06-30-1998)
Consensual Monitoring Defined & Distinguished

  1. The term Consensual Monitoring, as used herein, means the investigative interception, overhearing, or recording of a private conversation by the use of mechanical, electronic, or other devices with the consent of at least one, but not all, of the participants (as contrasted to Non-Consensual Monitoring, where no participant consents). Consensual monitoring may be used in General, Primary, and Subject
    Investigations.
  2. Supervisory approval is not required for monitoring conversations with the consent of all parties to the conversation.
  3. The monitoring of conversations with the consent of one of the participants may be used whenever it is both appropriate and necessary to establish a criminal offense. However, this technique is subject to careful oversight in order to avoid any unwarranted invasion of privacy or perception of impropriety.
  4. To protect the integrity of all consensual monitoring activities:
    1. Recordings must be preserved in their entirety, including information unrelated to the investigation; and
    2. A record of all contacts with the subject of the monitoring request must be maintained. The record must reflect all contacts with the subject, including those that were not recorded. An explanation as to why a contact was not monitored must also be included.

[9.4] 7.3  (06-30-1998)
Consensual Monitoring of Telephone Conversations

  1. This section contains policies and procedures concerning consensual monitoring of telephone conversations.

[9.4] 7.3.1  (06-30-1998)
Authorization

  1. Monitoring telephone conversations with the consent of at least one participant requires the authorization of the Chief, CI. The Director and Deputy Director, National Operations Division, CI, are also authorized to approve the consensual monitoring of telephone conversations in all criminal investigations conducted by IRS, CI (IRM 1229, Delegation Order No. 205). However:
    1. The authorization of the Assistant Commissioner, CI, or the Deputy Assistant Commissioner, CI, is required for consensual monitoring of telephone conversations where the recording device is to be installed in a place or manner that will create the risk of an inadvertent prohibited non-consensual monitoring. The request for approval must contain sufficient information to apprise the authorizing officials of the need for installing the recording device in the manner proposed and the precautions that will be taken to prevent non-consensual monitoring.
    2. The approval of the Assistant Commissioner, CI, and the Director, Office of Enforcement Operations, Criminal Division, Department of Justice (DOJ), is required for monitoring telephonic conversations when the consenting party is in the custody of the Bureau of Prisons or the United States Marshal.
  2. Form 8041, Request for Authorization to Use Electronic Equipment and Consensual Monitoring, will be used to request approval. The request should state the exact days which the authorization is sought, not to exceed 60 days, and the date the monitoring will begin. In undercover operations, approvals for up to 90 days may be authorized.
    1. When the recording device will be concealed, the request must include an explanation of the precautions taken to ensure that non-consensual monitoring will not occur. For example, the monitoring device will be removed or disconnected after each authorized recording; or the monitoring device and telephone will be in a secure area with access limited to those individuals involved in the monitoring. This information should be included in Item 20 on Form 8041.
    2. IRM 9.11.3 contains information on the types of equipment that can be used and specific restrictions and responsibilities regarding the use of sensitive-type investigative equipment.
  3. At the discretion of the approving official, the request may be oral, provided Form 8041 is submitted at the earliest practical time.
  4. Within 15 working days after the completion of the monitoring activities (or attempted monitoring activities) for each specific authorization, Form 6795, Consensual Monitoring Report, will be submitted to the approving authority. This report should include a copy of the approved Form 8041. A copy should be sent through channels, including the District Director, to the Assistant Commissioner, CI. If no monitoring occurred, the report is due within 15 working days of the authorization's expiration date.
  5. In grand jury investigations, the officials approving the monitoring requests must be added to the grand jury access list.

[9.4] 7.4  (06-30-1998)
Consensual Monitoring of Non-Telephone Conversations

  1. This section contains policies and procedures concerning consensual monitoring of non-telephone conversations.

[9.4] 7.4.1  (06-30-1998)
Authorization

  1. Monitoring a non-telephone conversation with the consent of at least one of the parties requires, in non-emergency situations, the advance written authorization of one of the following: the Assistant Commissioner, CI; the Deputy Assistant Commissioner, CI; the Director, National Operations Division, CI; or the Deputy Director, National Operations Division, CI, in all investigations except the seven specific sensitive situations described below. These must be approved by the Director, Office of Enforcement Operations, Criminal Division, DOJ:
    1. The interception relates to an investigation of a member of Congress, a federal judge or any other federal official holding a position of Executive Level IV or above, or a person who has served in this capacity in the last two years.
    2. The interception relates to an investigation of any other public official (local, state and federal) where the offense being investigated involves bribery, conflict of interest or extortion and relates to the performance of official duties. Interceptions relative to a criminal tax investigation do not fall into this category unless the alleged unreported income was received from a bribe, conflict of interest or extortion and was a result of officials using their public office to obtain this income; or
    3. The interception relates to an investigation of a federal law enforcement official; or
    4. The consenting or nonconsenting person is a member of the diplomatic corp of a foreign country; or
    5. The consenting or nonconsenting person is or has been a member of the Witness Security Program; or
    6. The consenting or nonconsenting person is in the custody of the Bureau of Prisons or the United States Marshal's Service; or
    7. The Attorney General, Deputy Attorney General, Associate Attorney General, Assistant Attorney General for the Criminal Division, or the United States Attorney in the district where an investigation is being conducted has requested the investigating agency to obtain prior written consent from DOJ.

[9.4] 7.4.2  (06-30-1998)
Emergency Authorization

  1. In an emergency, one of the following procedures should be followed:
    1. In all situations where one of the following: the Assistant Commissioner, CI; the Deputy Assistant Commissioner, CI; the Director, National Operations Division, CI; or the Deputy Director, National Operations Division, CI, has approval authority and the emergency needs of an investigation preclude obtaining written advance approval, they may orally authorize consensual monitoring of non-telephone conversations. As a general rule, when DOJ approval is otherwise required, emergency authorization pursuant to this exception will not be granted where the approving official has in excess of 48 hours to attempt to obtain written advance approval from DOJ.
    2. If one of the following: the Assistant Commissioner, CI; the Deputy Assistant Commissioner, CI; the Director, National Operations Division, CI; or the Deputy Director, National Operations Division, CI, grants emergency authorization for situations otherwise requiring written DOJ approval, the Office of Enforcement Operations must be notified within 5 working days. The notification must include an explanation of the emergency and contain all information required on Form 8041, Request for Authorization to Use Electronic Equipment and Consensual Monitoring. The authority to grant emergency approval has been delegated by the Commissioner and cannot be redelegated. Confirmation of emergency approval will be done by memorandum through channels by one of the following: the Assistant Commissioner, CI; the Deputy Assistant Commissioner, CI; the Director, National Operations Division, CI; or the Deputy Director, National Operations Division, CI.

[9.4] 7.4.3  (06-30-1998)
Form 8041 Preparation & Submission

  1. Form 8041, will be used to request approval. The request should state the exact days for which the authorization is sought, not to exceed 60 days, and the date the monitoring will begin. In undercover operations, approvals for up to 90 days may be authorized.
  2. All requests for approval must be submitted by the Chief, CI, through channels including the District Director and may only be signed by one of the following: the Assistant Commissioner, CI; the Deputy Assistant Commissioner, CI; the Director, National Operations Division, CI; or the Deputy Director, National Operations Division, CI. These officials have been designated by the Commissioner and the authority cannot be redelegated. (See Delegation Order 205.)
    NOTE:
    Oral concurrence for the monitoring must be obtained from a local DOJ attorney prior to submitting the request. The name and title of the attorney concurring with the request must be included in Item 20 on Form 8041. When time and communication facilities are insufficient to complete a written or faxed request, the needed information may be orally transmitted to the Assistant Commissioner, CI. An oral request for approval must be confirmed by submitting a completed Form 8041 within 2 working days after the oral request is made.

[9.4] 7.4.4  (06-30-1998)
Extensions

  1. When applying for extensions of additional time for the consensual monitoring, details regarding the need for the extension and the results of the surveillance during the initial authorized monitoring must be provided. Extension requests must be initiated and approved prior to the date the original authorization expires. Otherwise, the extension request must be considered as an original request.

[9.4] 7.4.5  (06-30-1998)
Consensual Monitoring Report(s) Preparation & Submission

  1. Within 15 working days after the completion of the monitoring activities (or attempted monitoring activities) for each specific authorization, Form 6795 will be submitted to the Chief, CI, with a copy sent through channels, including the District Director, to the Assistant Commissioner, CI. This report should supplement the information contained in the request for authorization. If no monitoring occurred, the report is due within 15 working days of the authorization expiration date. If the consensual monitoring involves a protected witness or a federal prisoner, a copy of the report will be forwarded by the Assistant Commissioner, CI, to the Director, Office of Enforcement Operations, DOJ.
  2. If a monitoring activity occurs without the appropriate approval or occurs outside the period authorized on Form 8041, the Chief, CI, will promptly notify, by telephone, the Director of Investigations of the circumstances involved, who in turn will promptly notify, by telephone, one of the following: the Assistant Commissioner, CI; the Deputy Assistant Commissioner, CI; the Director, National Operations Division, CI; or the Deputy Director, National Operations Division, CI. Within 5 workdays the Chief, CI, will submit a report through channels, including the District Director, to the Assistant Commissioner, CI. This report will set forth all the facts and circumstances surrounding the incident. The Assistant Commissioner, CI, will review the report and take appropriate action.

[9.4] 7.4.6  (06-30-1998)
Participation with Other Agencies

  1. With respect to the participation by special agents with representatives of one or more other federal agencies that are conducting consensual monitoring of non-telephone conversations:
    1. Special agents will not participate in the consensual monitoring in a passive or active role unless approval has been obtained for the consensual monitoring by one of the participating agencies.
    2. Special agents may participate in the consensual monitoring in a passive role without obtaining approval from the Assistant Commissioner, CI.
    3. When there is to be active participation or assistance by the special agent in the consensual monitoring, and where no emergency situation is involved, the special agent must still obtain the approval of one of the following: the Assistant Commissioner, CI; the Deputy Assistant Commissioner, CI; the Director, National Operations Division, CI; or the Deputy Director, National Operations Division, CI. All such requests must contain a copy of the other agency's approval for the consensual monitoring.

[9.4] 7.5  (06-30-1998)
Safeguarding Records of Consensual Monitoring

  1. Whenever technically feasible, the conversations overheard (whether telephone or non-telephone) will be recorded by means of a tape or similar permanent record. Such tapes or other permanent record of the conversations and any logs, transcripts, summaries, or memoranda together with copies of all requests for approval and reports which are submitted to the Assistant Commissioner, CI, shall be specifically safeguarded from improper disclosure. A record of individuals who have had access to this material shall be kept and retained by the custodian of the tape or other permanent record.

[9.4] 7.6  (06-30-1998)
Use of Federal Prisoners in Consensual Monitoring Activities

  1. When requesting the use of federal prisoners in consensual monitoring activities, the Chief, CI, will prepare a written request which includes:
    1. Location of the prisoner
    2. Identifying data on the prisoner including Bureau of Prisons register number
    3. Necessity of using the prisoner in the investigation
    4. Name(s) of target(s) of the investigation
    5. Nature of activity requested
    6. Security measures to be taken to ensure the prisoner's safety, if necessary
    7. Length of time the prisoner will be needed in the activity
    8. Whether the prisoner will be needed as a witness
    9. Whether a prison redesignation will be necessary upon completion of the activity
    10. Whether prisoners will remain in the custody of the investigative agency or whether they will be unguarded except for security purposes
    11. Names of special agents who will be handling the prisoner and their local telephone numbers
  2. This request will be forwarded, through the DI to the Assistant Commissioner, CI, Attn: Witness Security Coordinator. The Assistant Commissioner, CI, will promptly transmit the request to the Office of Enforcement Operations, Criminal Division, DOJ, which will coordinate the request with the Bureau of Prisons.
  3. The Bureau of Prisons will advise the Assistant Commissioner, CI, of its decision which, in turn, will be promptly communicated to the requesting district.
  4. Within 45 days of the conclusion of the activity, the Chief, CI, will forward a report detailing the results of the activity, through the DI to the Assistant Commissioner, CI, Attn: Witness Security Coordinator. Reports involving the use of federal prisoners will be coordinated by the Witness Security Coordinator with the Director, Office of Disclosure (EX:D), on an investigation-by-investigation basis, prior to submission to the DOJ Office of Enforcement Operations. This request will be forwarded through the DI to the Assistant Commissioner, CI, Attn: Witness Security Coordinator.
  5. If the witness or informant is a non-federal prisoner, the advice of District Counsel should be sought as to the process for securing custody under governing state law.
  6. The United States Marshals Service will be requested to provide assistance in requests involving federal prisoners due to their responsibility for the safekeeping of federal prisoners.
  7. If such assistance is not provided by the Marshals Service, enough special agents should be assigned to the custody responsibilities to provide the constant presence of at least two special agents.
  8. A security plan should be developed for the entire period of the temporary custody of the prisoner to ensure the safekeeping of the prisoner and the safety of all. This security plan should provide for:
    1. A personal search of each prisoner upon each occasion of taking custody.
    2. No visits by other persons while the prisoner is in Service custody, unless such visits facilitate the interrogation.
    3. Return of the prisoner to a federally approved custodial facility or the prisoner's usual place of confinement at the end of each day.
    4. Adequate resources for constant, alert guarding of the prisoner if (c) is not possible.
    5. Use of personal physical restraint (handcuffs and leg irons) whenever appropriate.
    6. On extended periods of custody, an appropriate system of communication with supervisory personnel and periodic status reports to the Chief, CI.
  9. All personnel assisting with the custody and interrogation of a prisoner should be constantly aware that the prisoner's cooperation may be motivated by the desire to escape from custody.
  10. If during the interview it becomes apparent that the prisoner may become the subject of a criminal investigation, the procedures for interviewing a person in custody should be followed.

[9.4] 7.7  (06-30-1998)
Special Responsibilities for Sensitive Type Investigative Equipment

  1. Except for those devices described in (3) below, field offices may not purchase, fabricate, or have manufactured any consensual monitoring equipment or accessories without approval from the Director, Finance Division, or designee. Additionally, all equipment obtained with approval will be entered into the Criminal Investigation Equipment Control System (CIECS) by the acquiring office.
  2. CI field offices may maintain an inventory of induction coils, in-line recording devices, or similar devices for use when consensual telephone monitoring is approved. These devices may also be used to record conversations where all individuals to the conversation consent.
  3. Field offices may purchase induction coils, in-line recording devices, or similar devices locally.
  4. Use of personally-owned induction coils, in-line recording devices, or similar devices is prohibited.
  5. Custodial responsibility for each monitoring device will be assigned to the Headquarters office technical representative. At the request of the Chief, CI, the Headquarters office technical representative may reassign monitoring devices to a district technical agent. This agent will maintain a control record showing the date each monitoring device was released from storage, to whom it was assigned, and the date it was returned to storage. The monitoring device will be returned promptly to the designated custodian after its authorized use.
  6. The Assistant Commissioner, CI, will develop and administer programs to ensure that all employees who operate or install non-telephonic consensual monitoring equipment and pen registers are adequately trained in the use and installation of this equipment. These programs should also ensure that these employees are fully familiar with federal law, Service policy and CI guidelines on the interception of voice
    communications.
  7. Only those criminal investigators who have attended training programs in the use, operation, and installation of this sensitive equipment (except induction coils, in-line recording devices, or similar devices) will be permitted to install and operate such equipment unless, in emergency situations, another individual is specifically authorized to do so by the Chief, CI, or designee. Training for this type equipment will be conducted with sufficient frequency to assure that operators and installers of the equipment retain their expertise.

Internal Revenue Manual  

Hndbk. 9.4 Chap. 7 Consensual Monitoring

  (06-30-1998)


05/02/2001 14:28:53 EST