Judge Tosses 200 Hours Of Recordings From FBI's Courthouse Bugs

from the both-sides-of-the-judicial-coin,-all-in-one-federal-district dept

The fallout from the FBI’s surreptitious bugging of county courthouses in California has coalesced into two motions to suppress — with two very different outcomes. What makes this even more interesting is that both decisions were issued in the same judicial district.

Judge Phyllis Hamilton denied a motion to suppress last week. While she had concerns about the location of the bugs used in the FBI’s investigation of property auction price fixing, she reached the conclusion that the recording of conversations that occurred in a public area did not violate the defendants’ expectation of privacy. The decision hinted Judge Hamilton would be hard pressed to find any conversation in public — no matter what attempts were made to prevent bystanders from listening in — worthy of an expectation of privacy.

Judge Charles Breyer, however, has reached the opposite conclusion. Breyer dug deeper into the location of the recording devices and questioned whether the FBI was crossing a line by placing them in areas where privileged conversations might occur.

In a decision [PDF] handed down on August 1, Judge Breyer has tossed 200 hours of recordings made by the FBI on the grounds that the eavesdropping violated the defendants’ expectation of privacy. (via Joe Mullin at Ars Technica)

The volume of oral communications is relevant to whether the speaker has a reasonable expectation of privacy, as is the proximity or potential of other individuals to overhear the conversation. The key inquiry here, however, “is not whether it is conceivable that someone could eavesdrop on a conversation but whether it is reasonable to expect privacy.” The evidentiary record here confirms that Defendants did not speak at a volume loud enough for an undercover agent or an FBI cooperator to overhear them. Feb. 11 Tr. at 155:7–12 (reflecting that the lead FBI agent testified that “the key observation made in the early part of the case” was that the cooperator and undercover agent “could not hear” Defendants’ conversations).


The Court thus finds no evidence in the record establishing that bystanders overheard the conversations surreptitiously recorded on the twenty-eight days in question; it does, however, find ample evidence in the record that bystanders could not overhear those conversations. See, e.g., Feb. 11 Tr. at 155:7–12. This factor thus supports a reasonable expectation of privacy.

Unlike Judge Hamilton’s case, the defendants took active steps to avoid being overheard — something that should have been expected, considering the presence of competitors hoping to acquire foreclosed property as cheaply as possible. Not only that, but the FBI testified that its undercover informant somehow managed to get booted from the inside circle, meaning that the government’s own man had some idea bidders weren’t loudly proclaiming their bidding strategies to all and sundry.

Away goes 200 hours of recordings — a lot of which apparently captured stuff the FBI didn’t care about. Along with it might go the rest of the evidence, if the court comes to the conclusion it’s been tainted by the government’s bugs.

The court concludes that zero expectation of privacy Judge Hamilton hinted at in her decision may be the new normal in the future, but we aren’t there quite yet.

With continuing advances in technology, private conversations may become anachronistic rituals reducing intimate encounters to silent exchanges of notes. But that day has not arrived. Until it does, our Fourth Amendment protections should be defined by traditional circumstances. The Court concludes that Defendants had (1) a subjective expectation of privacy in the conversations recorded by the stationary microphones at the San Mateo County Courthouse, and (2) that expectation was objectively reasonable.

Whether or not efforts to carve out privacy expectations in public spaces will be successful appears to come down to the judge presiding over the case. Hamilton’s decision made some scary assumptions about communicating in public areas, but she also had testimony and recordings showing the defendants she dealt with made less effort to keep their conversations secret than those in front of Judge Breyer. This may have been the key difference between the two cases, but Hamilton would have raised fewer privacy concerns if she hadn’t expanded her thought process to declare that the privacy-less future Judge Breyer only hinted at has already arrived.

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Comments on “Judge Tosses 200 Hours Of Recordings From FBI's Courthouse Bugs”

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Bees! says:

Re: Re:

And you expect elected judges- who have to appeal to “tough on crime” campaigns to get votes (forgetting that they’re supposed to be neutral)- to do any better? Public opinion does not necessarily align with properly understanding the law, or even the Constitution. I’d rather have a judge issue an unpopular decision that is consistent with proper legal principles (especially when Constitutional rights are concerned) than someone trying to placate voters.

Say what you will about the federal judges, but from my experience actually practicing law, the federal appointment system and life tenure for federal judges ends up producing on average better decisions and precedent because they don’t feel constrained by anyone other than appeals courts.

Quiet Lurcker says:

Something that neither court touched on

Don’t know how they do it on the left coast, but here in fly-over territory, it’s my (admittedly limited) experience that there are or tend to be areas in and around court houses where, by unspoken agreement, people seem to keep their distance from pairs or groups of people talking quietly and actively try to not listen in on any conversations that may be going on in those areas.

I think I remember seeing something somewhere about one of these cases where the parties did go to such an area. if that’s the case, then the “no expectation of privacy in a public setting argument” goes up in flames. People who go to such an area around a courthouse and talk among themselves quietly do have at least a minimal expectation of privacy, thanks to that unspoken agreement.

Ninja (profile) says:

Re: Re:

That. If you make efforts to keep the conversation private even in public places you do have an expectation of privacy. If the bugs were known maybe the conversation would have remained in the electronic realm (encrypted messages) or would have taken place where they knew there would not be bugs.

In another note, Orwell should not be used as a guide of what to do but rather of what NOT to do.

Derek Kerton (profile) says:

Wow. I'm On Those Tapes

I went to the steps of the Alameda County Courthouse this spring, and bid on a real estate auction on behalf of a friend who had been foreclosed. I was gonna rent her place back to her in a win-win.

Can’t say I’m thrilled about being recorded, if I was.

The auction was a very strange experience. Some very shady looking characters hanging around, then suddenly they all coalesce and start bidding millions of dollars. But they are all just frontmen (like floor traders at a stock exchange). Each had a clipboard of the properties for the day, a phone and headset, and were in constant contact with the real buyers during the actual sales. They seemed to make no decisions themselves, but just relayed info.

Shockingly, one needs cold, hard cash (or similar instrument) and must prove (show) it to the auctioneer just to bid. The total amount of money on the courthouse steps was impressive, given about a dozen homes sold for over $500k each. The reps generally bid every house, with varying levels of motivation. I only bid for the one.

“The evidentiary record here confirms that Defendants did not speak at a volume loud enough for an undercover agent or an FBI cooperator to overhear them.”

I personally found the volume of the auctioneer to be a particular problem for me. As a newb, I didn’t know the process, and there was scant help available. So I wanted to hear everything. That required very close proximity.

As for the other bidders, the absolutely took steps to mask their conversations over their telephones, so as to reveal as little information to the rest of us as possible.

As for expectation of privacy, it’s the COURThouse steps. Should we not expect a lot of discussions between lawyers and their clients all around the courthouse? Lots of privileged conversations surely happen there. Further, I reject Judge Hamilton’s opinion that any public place negates the expectation of privacy:

Electronic age or not, the expectation of privacy should be based on HUMAN experience and human perception. Would she obviate my right to privacy in my home simple because a laser mic pointed at my window can hear me from across the street? While the state of technology does define a spy’s ability to hear us, it does not define our RIGHT to privacy, WE do that.

My remaining questions are whether I was the victim of some kind of collusion or collaborative bidding? What was the FBI after? Seems unlikely since I got outbid in the end, so the asset owner (the bank) got more money than I though the property was worth.

Rough times for my friend, though.

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