FBI Found To Be Harvesting Surreptitious Recordings Around Two Other California Courthouses

from the bugging-in-bulk dept

Earlier this year, the FBI was catching heat for some undersupervised and overly-broad surveillance it deployed around the San Mateo courthouse in California. Hoping to catch conversations related to suspected bid-rigging during real estate auctions, the FBI scattered hidden microphones around the courthouse steps where the auctions took place.

The defendants’ legal representation raised hell, claiming the surreptitious recordings violated their clients’ rights. After all, the Supreme Court had declared in 1967 that closing a phone booth door was not dissimilar to holding a conversation in hushed tones, bringing a limited expectation of privacy to public places.

The FBI couldn’t have felt all that confident about its secret recordings as it vowed not to enter any of the conversations it captured into evidence. That wasn’t enough for the judge, however, who said he still needed to determine whether other evidence had been tainted by this questionable surveillance.

Not only was there a question about the legality under the Fourth Amendment, but there were unanswered questions about how many completely irrelevant conversations the FBI’s bugs might have picked up — like privileged discussions between lawyers and clients, both of whom are often at courthouses simultaneously.

Apparently, the FBI thought it was going to get away with this, most likely by declaring anything that happens in public to be completely stripped of privacy expectations. The surreptitious recordings in San Mateo didn’t go nearly as smoothly as planned and now evidence has been produced showing the FBI targeted more than one courthouse during its bid-rigging investigation. (via Nate Cardozo)

At the Rene C. Davidson Courthouse in Oakland, the FBI planted hidden microphones inside light fixtures on the courthouse’s exterior steps to capture the conversations of people attending the foreclosure auctions. Cameras and microphones were installed in parked Alameda County vehicles next to the courthouse. The FBI even hid a microphone in the AC Transit bus stop on Fallon Street, and dropped a bugged backpack next to a statue inside the courthouse, according to a letter sent by US Justice Department attorney Kate Patchen to Marr’s attorneys on March 15. The surveillance was ongoing from March 2010 to January 2011.


In Martinez, the FBI planted microphones in bushes, at a bus stop, on a pole, and inside parked and roving vehicles near the auction site.

Three courthouses. At least a dozen microphones. Hundreds of hours of recordings. And for what?

Tough to say. Multiple prosecutions of suspected bid-riggers are ongoing, but the investigative groundwork is failing to pass inspection. Once again, prosecutors are promising not to use the questionable recordings in court, but they’re far less likely to drop any evidence springing from those captured conversations.

In addition, defendants’ lawyers in the San Mateo County case are going so far as to claim the FBI committed felonies by recording conversations, as California is a two-party consent state. They might have to settle for some suppressed evidence though, as the state law has a fairly broad “public area” exception, which would cover courthouse steps and bus stops. But that interpretation of the state’s wiretap law exceptions may be subject to the government’s interpretation of public spaces from its 1967 Katz decision, which would grant hushed conversations in public an expectation of privacy.

The FBI — through its actions — is repeatedly demonstrating it cares little for the rules that govern its investigations and intelligence gathering. It only cares when it gets caught. This is its culture, something that traces back — with only minimal interruption — to its inception.

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Comments on “FBI Found To Be Harvesting Surreptitious Recordings Around Two Other California Courthouses”

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Anonymous Coward says:


Considering how an increasing number of cities are being blanketed with “gunshot detection” microphones (which record EVERYTHING, not just gunshots) to augment the surveillance cameras, it would seem that any additional recordings made by the FBI would be essentially superfluous.

Anonymous Coward says:

Re: Re: superfluousity

NEW BEDFORD — An audio recording of a street argument that helped police arrest a suspect in the Dec. 2 murder of Michael Pina raises privacy concerns and increases the possibility of a long legal battle that could reach the state supreme court, civil liberty lawyers say.

ShotSpotter officials say their acoustic sensors, set up to detect gunfire, are not designed to record conversations on the street. However, court documents show that audio surveillance helped provide specific details that enabled police to string together the sequence of events that ended in the fatal shooting of Pina, 20, in the South End.

The apparent ability of ShotSpotter to record voices on the street raises questions about privacy rights and highlights another example of how emerging technologies can pose challenges to enforcing the law while also protecting civil liberties.

“As technology develops, it raises new, novel questions in the tensions between law enforcement and privacy. We’re going to see more and more of these kind of cases,” said Attorney Richard W. Cole, vice chairman of the Massachusetts Bar Association’s Individual Rights and Responsibilities Section.

Meanwhile, local law enforcement authorities maintain they are on solid legal footing with ShotSpotter.

“I think that this case is going to demonstrate, when the case goes to trial, the great value of that technology,” Bristol County District Attorney C. Samuel Sutter said.

On Jan. 6, during bail arguments for Jonathan Flores, 20, who is charged with murder, Assistant District Attorney Dan Hourihan said ShotSpotter recorded the arguing and yelling at the corner of Dartmouth and Matthew streets.


Coyne Tibbets (profile) says:

Parallel construction

Three courthouses. At least a dozen microphones. Hundreds of hours of recordings. And for what?

“For what?” Are you kidding? Hundreds of hours of privileged attorney-client conversations are hugely valuable, to investigators and prosecutors both. Who knows how many people have been cornered into a conviction by a little “amazing insight” into the crime, followed by a little “parallel construction.”

In fact, more and more, I think the prime expertise of a typical investigator today is parallel construction–and a malicious glee in finding new data sources to feed parallel construction.

It wouldn’t surprise me a bit if all courthouse public areas are recorded now, nationwide, and maybe some private areas as well. Gotta watch out for those terrorists, you know. (And why haven’t they already trotted that excuse out? “But judge, we wouldn’t want a terrorist to put a bomb in your chambers.”)

Anonymous Coward says:


“Multiple prosecutions of suspected bid-riggers are ongoing”

Your not giving any leway for the investigations being targeted at state officials. If the guy under investigation never leaves the court house, then there is no other place to wiretap. And if the business is mostly done face to face, there is no WIRE.

Graft in Real Estate is common. Chances are the guys who are up to this, are the same guys who are bribing state officials for various other reasons.

So they are busting the right people for the right reasons for once. Compare this to busting the destitute and uneducated for selling dime bags of spliff and I’m inclined to give them a little room to run with it.

I’d file this one under: “What is good for the goose”.

That One Guy (profile) says:

Re: To defend the innocent oft times requires one to defend the guilty

I’d file this one under: “What is good for the goose”.

You shouldn’t, because if they can do it to the really bad people then it’s only a matter of time until they use it on the moderately bad people. And then the slightly bad people and so on, until it’s considered a perfectly acceptable technique to use against anyone at all.

If you wouldn’t accept a particular technique or legal trick being used against someone you knew for a fact was innocent then you should object to using it against someone that is guilty, because if the latter doesn’t have protections against something then neither does the former. Everyone is potentially guilty after all.

Anonymous Coward says:

Re: Re: To defend the innocent oft times requires one to defend the guilty

While shotgun mic’ing the court steps is a problem if used for violating attorney privilege, that isn’t what we are talking about here. Real estate auctions are a commercial venue, not a judicial one. Mic’ing such an event is not necessarily different from the vice squad mic’ing a seven eleven parking lot.

I have attended one of these auctions before. They are typically a cluster of a relatively small number of people, outside of the normal pedestrian traffic flow. Bid rigging and inside deals would be fairly easy to accomplish, particularly in a short market when the people attending are pretty much just bankers who know each other.

So yeah. Fuck em’. The FBI can borrow MY mic, if they’d use it to prosecute bankers. I’d buy a few more too if they take down the terrorists who perpetrated the credit default swap scam of 2008. There was a lot of principle left on the mortgage the FBI and SEC took out against the public trust, when they defaulted in 2008. There should have been a blood trail from Wall street all the way back to 10th and Pennsylvania Ave. I wonder why it never happened?

I’d like to think this is just a little time on training wheels before they move to NYC to play with the big dogs. Probably not though.

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