Judge Tells FBI It Doesn't Have A 'Two-Minute Rule' That Allows It To Listen In On Personal Phone Calls

from the first-two-minutes-of-privacy-violations-free-w/purchase-of-full-investigation! dept

Something the FBI has long considered to be part of its wiretapping efforts has been rejected by the Second Circuit Court of Appeals. Much like many people believe a 30-second-or-less clip from a movie, TV show or song entitles them to claim fair use, the FBI believes that a two-minute or less phone conversation can be listened to in its entirety even if it has nothing to do with the investigation at hand.

The U.S. Court of Appeals for the Second Circuit declined to adopt a rule that agents get a "two-minute presumption" on the reasonableness of wiretapping calls that are personal in nature.

The circuit did so while dismissing a civil suit brought against FBI agents by a woman who claimed her privacy was violated when agents taped intimate phone calls between herself and her husband during a criminal investigation.

The circuit said the woman, Arlene Villamia Drimal, will be allowed to file a new complaint against the agents.

Drimal is the wife of convicted insider trader Craig Drimal. She sued 16 FBI agents for conversations they overheard in 2007 and 2008 while executing a wiretap secured under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, §§2510-2522.
This doesn't necessarily "put to death" the two-minute window on personal calls FBI agents grant themselves, contrary to Drimal's lawyer's claims. The ruling is very specifically narrowed to cover only the FBI agents' actions in this case. The 16 agents listed in Drimal's lawsuit moved for dismissal, citing qualified immunity and pointing to a previous decision which allowed the FBI approximately two minutes to ascertain a call's purpose and relevance.
They cited the Second Circuit case of United States v. Bynum, 485 F.2d 490 (2d Cir. 1973), where the court held a wiretap that monitored 2,058 in a large narcotics case did not violate Title III minimization requirement.

The Bynum court excluded calls under two minutes from its evaluation of the wiretap because "in a case of such wide-ranging criminal activity as this, it would be too brief a period for an eavesdropper even with experience to identify the caller and characterize the conversations as merely social or possibly tainted."
The FBI has an indeterminate amount of time to discern the intent and content of wiretapped calls, with an obligation to disconnect as soon as it's surmised the phone call has no investigatory relevance. This still remains in force, even with this rejection of its "two minute" argument. Without a doubt, this allowance has been abused to listen in on phone calls of a personal nature, but its intent is to minimize privacy violations while still allowing agents to collect evidence. What distinguishes this case from others is that the FBI agents were caught not "minimizing" wiretapped calls in violation of the court order authorizing the wiretap. This abusive behavior was called out by the presiding judge.
This case does not present the same circumstances as Bynum. Many of the violations here took place in the early stages of the wiretap when defendants were less familiar with the case and with Mrs. Drimal’s lack of involvement in it, but the agents should have realized reasonably early in the wiretap that these husband and wife conversations were not relevant to the investigation. As Judge Sullivan noted in Goffer, Mr. and Mrs. Drimal occasionally discussed “deeply personal and intimate” issues, 756 F. Supp. 2d at 594, and “in each of these calls it should have been apparent within seconds that the conversation was privileged and non‐pertinent,” id. at 595.

As a result, the reasoning from Bynum that it would be too difficult to minimize calls under two minutes is not applicable here where agents could determine in seconds that the calls between husband and wife were entirely personal in nature. The two‐minute presumption we applied in Bynum thus does not automatically shield defendants against the failures to minimize calls under two minutes that the putative amended complaint is likely to allege.
On one hand, the ruling undercuts the FBI's assumption that all calls under two minutes in length can be listened to in their entirety, no matter their relevance to ongoing investigations. On the other hand, the ruling cannot be applied broadly to other FBI wiretapping efforts. Civil suits brought over alleged privacy violations aren't going to be any easier to pursue as the "window" for FBI eavesdropping is still wide open, what with the Bynum ruling only applying to the specific facts of that case, rather than FBI wiretapping in general.

Drimal's case was aided by a couple of unlikely incidents, one of which was two agents' open admissions that they had listened to privileged phone calls. The other factor weighing into this decision was the very specific instructions the agents received, not only from the court issuing the wiretap order, but also from the US State's Attorney. Without these two elements, the FBI would likely have been found to be acting lawfully within the confines of its wiretap policies and applicable court orders.

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Filed Under: 4th amendment, doj, drimal, eavesdropping, fbi, phone calls, second circuit, two minute rule, warrants, wiretaps


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  • identicon
    Anonymous Coward, 21 May 2015 @ 9:55am

    How to start a conversation

    The first two minutes of every conversation now needs to be, "How are you, Lovey-Dovey?" "Want to go to dinner?" "You look great in that dress. Why don't you take it off" "What are you wearing right now?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 May 2015 @ 10:16am

    Criminals start using code words

    Code words translations:
    "How are you, Lovey-Dovey?" : You got the drugs?
    "Want to go to dinner?" : Yea, I'll meet you out back of the diner
    "You look great in that dress. Why don't you take it off" : Sounds good, but I thinks you should drop the price, capiesh!
    "What are you wearing right now?" Your out of your mind, we had a deal!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 May 2015 @ 10:47am

      Re: Criminals start using code words

      LOL!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 May 2015 @ 11:02am

      Re: Criminals start using code words

      Now that you've given them the idea, the government is just going to claim criminals are using code words, so they have to listen to all calls. Especially the calls that sound like phone sex.

      reply to this | link to this | view in chronology ]

  • icon
    allengarvin (profile), 21 May 2015 @ 10:16am

    Understandable

    It's easy to mix up rules for eating fries dropped on the floor with rules for snooping on people's private communications. Happens nearly daily for me.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 May 2015 @ 10:57am

    Given the increasing use and efficacy of automated voice transcription services, limits on human analysts is somewhat of a red herring. The FBI may or may not have NSA-grade software, but even consumer offerings (think Siri and Google Now) are getting pretty good.

    https://firstlook.org/theintercept/2015/05/05/nsa-speech-recognition-snowden-searchable-text/

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 May 2015 @ 11:24am

    If they can invent "interpretations" of laws like these out of blue air, it makes me wonder just what other interpretations the law enforcement agencies may be using against people.

    How about the "first shot" rule? First time you shoot a suspect, it doesn't count no laws can incriminate the agent (whether the suspect dies or not).

    Or the "first rape" rule - you get the idea.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 May 2015 @ 11:29am

    I assume they have a similar rule for Internet conversations? First megabyte rule? That should be about 50-100 lines, which is plenty.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 May 2015 @ 12:23pm

    ...kinda like the five second rule for food on the floor huh?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 May 2015 @ 12:42pm

      Re:

      You know the 5 second rule has been updated to " if your food falls on the floor take 5 seconds to think about all the other things that have been on the floor and wether you'd want to eat them." Because science.

      reply to this | link to this | view in chronology ]

  • icon
    toyotabedzrock (profile), 25 May 2015 @ 11:02am

    This sounds like starting off your drug order or insider trading calls with details of a romantic encounter would bypass the FBI.

    reply to this | link to this | view in chronology ]


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