"Prospective" surveillance is generally covered by a different law, the Wiretap Act, and by the much more stringent requirement to obtain a "probable cause" warrant first. Orin Kerr, a leading Internet privacy scholar, notes that "prospective surveillance tends to raise difficult questions of how the communications should be filtered down to the evidence the government seeks" and that "retrospective surveillance usually presents a less severe filtering challenge."
[Agents] were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end.
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