California Court Says Wiretap Target Should Have Access To Wiretap Documents

from the seems-fair dept

The EFF — representing former California Highway Patrol officer Miguel Guerrero — has achieved a significant legal victory. The California Appeals Court has given citizens a better shot at demanding law enforcement transparency about intrusive surveillance efforts.

It’s incredibly difficult to unseal documents the government wants to keep hidden, especially when the government raises arguments about preserving the secrecy of law enforcement tactics and techniques. This case deals with one of the hundreds of wiretaps approved by a single county judge in California. Officer Guerrero was one target of surveillance. The government insisted the application, along with information about what communications were intercepted, must remain secret even though Guerrero was never charged with any crime.

Guerrero learned from family members that his phone number was the subject of a wiretap order in 2015. Guerrero, a former law enforcement officer, has no criminal record, and was never arrested or charged with any crime in relation to the wiretap. And, although the law requires that targets of wiretaps receive notice within 90 days of the wiretap’s conclusion, he never received any such notice. He wanted to see the records both to inform the public and to assess whether to bring an action challenging the legality of the wiretap.

Unfortunately for Guerrero, law enforcement’s habitual abuse of a particularly amenable judge somehow didn’t provide enough “good cause” for unsealing the documents. That was the lower court’s determination. The state Appeals Court disagrees. Its ruling [PDF] says the judicial math for compelling disclosure is greatly altered when it’s the target of a wiretap seeking disclosure.

There is significantly less need to safeguard a person’s privacy when the person seeking wiretap materials was the target of that wiretap. The target, in seeking to inspect the wiretap materials, obviously consents to the disclosure being made (to himself or herself), and the inspection does not necessarily disclose private information to a third party. The intercepted conversations typically involve the target as a participant. It is possible that the application and orders could contain private information about others (such as, for example, information obtained from another wiretap needed to show necessity for the target’s wiretap). But this is neither invariably the case nor is it likely that other individuals’ private information would pervade a target’s wiretap documents. Consequently, the privacy concerns underlying Title III and the California wiretap statutes are diminished when the person seeking access is one whose conversations were being recorded.

The government argued the law says wiretap materials “shall be sealed.” The court rejects this limited view of the situation, pointing out that this statutory requirement is meaningless in the context of this request.

The fact that wiretap materials “shall be sealed” in and of itself has no bearing on what standard one must satisfy to access them; it simply means that the materials do not start out as publicly available documents.

Furthermore, the fact that Guerrero isn’t under investigation weighs against any of the government’s secrecy demands.

Here, we observe that the District Attorney has not relied on the existence of an ongoing investigation or grand jury proceeding before the trial court or on appeal. To the contrary, the District Attorney has conceded that there are “no criminal charges pending” against Guerrero. Similarly, the District Attorney has not claimed that there is any sensitive information in the wiretap materials, such as the identity of an informant, or information related to another open investigation, such that disclosure could jeopardize current or future investigations.

The court also says there’s a public interest angle to this, prompted by the Riverside County Court’s unusual amount of wiretap activity.

As noted above, the anomalous number of wiretaps approved by judges in Riverside County in 2014 and 2015 has elicited scrutiny from judges and journalists.

In addition, public confidence in the criminal justice system and the appearance of fairness can be damaged not only by actual impropriety, but the possibility of impropriety as well.

All of these weigh in favor of disclosure and the former officer — along with his EFF representation — has secured that. He’ll get to see documents very few people have seen, even years after being charged and the corresponding investigations closed. This is a win for Guerrero but it possibly extends to others targeted by the “anomalous number” of wiretaps approved by the Riverside County Court — wiretaps even the US DOJ felt possibly violated the law.

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