Defense Lawyers Claim FBI Illegally Bugged Outside Steps Of County Courthouse

from the my,-what-big-ears-you-have! dept

Is there an expectation of privacy in public spaces? Generally speaking, there isn't. But that doesn't mean it doesn't exist at all. Private conversations in public places are still afforded a limited expectation of privacy by the "Wiretap Act" -- a law prompted by the widespread warrantless use of recording devices, along with the Supreme Court's Katz decision, which found attaching a recording device to the outside of a public phone booth required the use of a warrant.

We may get to see just how far the courts are willing to extend the expectation of privacy in public places, thanks to the discovery of recording devices outside of a US courthouse. (h/t Declan McCullagh)

According to court papers filed Friday, federal agents placed secret recording devices in at least three locations around the entrance to the San Mateo County courthouse in Redwood City without first getting judicial approval.

The courthouse bugs were used in 2009 and 2010 to investigate bid-rigging at public foreclosure auctions. Their existence surfaced in a motion from defense lawyers for a group of five real estate investors accused of colluding to deflate prices at the auctions, which were held on the courthouse steps.

The defense lawyers, led by Latham & Watkins partners Daniel Wall and Ashley Bauer, are asking U.S. District Judge Charles Breyer to suppress more than 200 hours of recorded conversations and all evidence gained from them. They maintain that their clients had a reasonable expectation of privacy when they gathered to speak in hushed voices away from other auction participants.
The bugs were planted by the FBI in hopes of capturing bid-rigging discussions. The lawyers for the five defendants claim the recordings are illegal. Even though they did take place in a public area, the Katz decision and the Wiretap Act require the use of warrants fpr surreptitious recordings. As the Supreme Court saw it back in 1967, the defendant's actions turned a "public" conversation into a private one: namely, closing the door to the phone booth.

The lawyers here are hoping the use of "hushed tones" will be found to be roughly equivalent to shutting a phone booth door.
Here, the Government targeted conversations that an informant and an undercover agent with full access to the public place were apparently unable to overhear. The evidence will show that Defendants often took affirmative steps to create a zone of privacy for their communications, such as moving away from others, standing close together, covering their mouths, and speaking in low volumes.
The FBI's interception of these conversations was performed without warrants. In fact, the interception apparently was performed with hardly any paperwork at all. The approval for the recording devices came solely from FBI and DOJ attorneys and the resulting recordings ran for hours, without minimization or documentation.
Agents activated the listening devices on at least 31 occasions between December 22, 2009 and September 15, 2010. Bauer Decl., Ex. D. Generally, the recording devices were activated more than an hour before the auctions began, and they would run for a period of time after the auctions had concluded. Some of the devices intercepted every communication that occurred in their vicinity over a period of more than five hours. Id. For example, the Government recorded individuals having private conversations on their cellphones in an area away from the auctions.
Although the target was certain bidders at property auctions, the FBI swept up everything simply because leaving the mics on was simpler than restricting recordings only to the suspects in the case. A supporting document submitted by the defense details conversations unrelated to the investigation that were not only recorded by the FBI, but stored indefinitely in unminimized form.

The government has already argued that the warrantless recordings were legal as they were used to compile evidence of fraudulent behavior. It also implied probable cause existed for the deployment of surreptitious recording devices. What it omits from its defense of the FBI's actions is that probable cause normally leads to the generation of warrants, not mini-surveillance dragnets that capture more irrelevant conversations than applicable ones.

If the court finds the FBI's actions lawful, it will serve notice that any public area is no place to hold a private conversation, even if the participants make every effort to ensure their relative privacy. This would be at odds with previous court decisions. As the opening paragraphs of the filing point out, it has been previously noted by a US district court that leaving our own homes does not immediately open us up to unlimited government surveillance.
Wesley v. WISN Division-Hearst Corp., 806 F. Supp. 812, 814 (E.D. Wis. 1992) (“[W]e do not have to assume that as soon as we leave our homes we enter an Orwellian world of ubiquitous hidden microphones.”
Merely being in public is not proxy consent for surreptitious recording. The government is arguing that it is, or at least that the lowered expectation of privacy means the FBI shouldn't have to go outside of its own legal counsel to seek permission to eavesdrop -- not just on suspected criminals, but whoever else happens to be in the wrong place at the wrong time.




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  • identicon
    Anonymous Coward, 18 Nov 2015 @ 2:34pm

    While I have no doubt that the court will in favor of the FBI, for which they should, the illegality comes from the fact that they were recording conversations of people for whom their investigation was not a target. "Scooping" up conversations because you're too lazy to turn them on and off is not a valid reason, it's an excuse to violate the constitutional rights of Americans who weren't even involved in the investigation.

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

  • identicon
    Anonymous Coward, 18 Nov 2015 @ 2:40pm

    I wonder how many hushed conversations between attorneys and their clients got caught by the recording devices.

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

  • identicon
    Anonymous Coward, 18 Nov 2015 @ 2:45pm

    This whole incident is going to end up blowing up in the faces of the FBI when its discovered they recorded conversations between other attorneys and their clients. Federal judges are going to slap the FBI over this one.

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

    • identicon
      Anonymous Coward, 18 Nov 2015 @ 3:17pm

      Re:

      > Federal judges are going to slap the FBI over this one.

      I doubt it. They're playing for the same side.

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

    • identicon
      Anonymous Coward, 18 Nov 2015 @ 3:51pm

      Re:

      No, that's what they should do.

      However, it's likely that the Feebs have more than enough blackmail material on attorneys and Justices that this won't happen.

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

      • icon
        That One Guy (profile), 18 Nov 2015 @ 9:40pm

        Re: Re:

        They don't even need blackmail material, the vast majority of judges in the US have no problem bending over backwards to accommodate whatever the police and/or government agencies want, regardless of what the laws actually say should happen.

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

  • icon
    Agonistes (profile), 18 Nov 2015 @ 2:58pm

    I heard a rumor a while ago that it was possible, however unlikely, that our spy agencies break the law sometimes.

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

    • identicon
      David, 19 Nov 2015 @ 12:34am

      Re:

      It was nice knowing you.

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

    • icon
      That One Guy (profile), 19 Nov 2015 @ 2:41am

      Re:

      Nonsense, they don't break the law, they follow it to the letter.

      That said 'letter' is secret, double-classified, a matter of national security (National Security: Because Terrorists!) and absolutely not an interpretation written by a 'court' that might as well be a branch of the spy agencies(promise!) is irrelevant, and completely beside the point, which is that they most certainly do follow the law.

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

  • identicon
    Ed Allen, 18 Nov 2015 @ 3:10pm

    Limited audio snooping is possible if they wanted to minimize

    If I were a judge hearing this I would dismiss all charges, telling the FBI that
    not getting a warrant is grounds enough for dismisal and that not using a shotgun microphone
    would be further grounds.

    The Procecutor should be warned that allowing this case to go forward with clearly tainted
    evidence loses him/her the presumtion of good faith.

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

  • identicon
    Anonymous Coward, 18 Nov 2015 @ 4:27pm

    Done in CA? There is a law against it

    If you are operating in California, you should always get the consent of all parties before recording any conversation that common sense tells you might be "private" or "confidential." In addition to subjecting you to criminal prosecution, violating the California wiretapping law can expose you to a civil lawsuit for damages by an injured party


    http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=630-63 8

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

  • identicon
    Anonymous Coward, 18 Nov 2015 @ 4:37pm

    without laws there is anarchy. When the government itself cannot be bothered to follow the laws, then that government is not long for this world.

    Yet time and time again we see the attitude of "we are above the laws they don't apply to us" mentality among government agents.

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

  • identicon
    Anonymous Coward, 18 Nov 2015 @ 5:19pm

    Agents activated the listening devices on at least 31 occasions between December 22, 2009 and September 15, 2010. Bauer Decl., Ex. D. Generally, the recording devices were activated more than an hour before the auctions began, and they would run for a period of time after the auctions had concluded. Some of the devices intercepted every communication that occurred in their vicinity over a period of more than five hours. Id. For example, the Government recorded individuals having private conversations on their cellphones in an area away from the auctions.


    I cannot make heads or tails of those two highlighted sentences

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

    • identicon
      Anonymous Coward, 18 Nov 2015 @ 5:45pm

      Re:

      Yet nothing stopped you from pointing it out to the world instead of doing some research:

      Id. (masculine and neuter) and ead. (feminine) (Latin, short for idem and eadem, "the same") denote the previously cited source (compare ibid.). Id. is particularly used in legal citations. They are also used in academic citations replacing the name of a repeated author.

      The rest of the statement involve specifics on the number of times and dates that these general audio capture devices were used. The rest of it points out the the recording was general and not targeted even though it easily could have been. People were captured talking on it through cell phones present at the location allowing for attorney client interception as a very likely result given the subject.

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

      • identicon
        Anonymous Coward, 18 Nov 2015 @ 6:38pm

        Re: Re:

        Bauer Decl., Ex. D.----So the recording devices were three phase cage motors with a special type of explosion protection

        Instead of being a smart-ass, maybe you should thank me for giving you the chance to dazzle us with your brilliance


        By the way, do you know what a dildo is...
        The origin of the word "dildo" itself is obscure. It was once used to reference a phallus-shaped pin stuck in the edging of a row boat to act as a pivot for the oar (also known as a "thole pin" or "dole pin").[4] It was used as early as the 16th century for a cylindrical object such as a dildo glass (test tube), for a phallus-shaped sex toy, as an insult for a "contemptuous or reviling" male, and as a refrain in ballads.
        ...sit on it potsie

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

    • icon
      The Wanderer (profile), 30 Dec 2015 @ 6:08am

      Re:

      "Bauer Decl., Ex. D." is a citation to a source which purportedly confirms the previously stated information.

      "Bauer Decl." is almost certainly short for "the Bauer declaration", which is presumably referenced / defined elsewhere in the document.

      I don't parse "Ex. D." clearly just offhand, but it's going to either further describe the Bauer declaration (e.g. explaining where it comes from, maybe), or help explain where in that Declaration to find the cited information.

      "Id." is legal shorthand for "the same", or suchlike, as someone else already explained. In this sort of context, it means "the same source as the previous citation" - in other words, in this case it means "the thing I just said is also confirmed by statements in (the same part of) the Bauer Declaration". It's used purely as an abbreviation, to avoid having to retype citations, which can be lengthy and easily gotten wrong.

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

  • identicon
    avideogameplayer, 19 Nov 2015 @ 3:44am

    Actually this might backfire unintentionally...since the SCOTUS has declared that there's no expectation of privacy in public places and the push to videotape police officers...any ruling would be a damned if you do, damned if you don't situation...

    And you know if this ruling goes to the defendants, local police are gonna be using the opportunity to wreck anything involving body cams and accountability...

    But if it goes to the FBI, the 4th Amendment takes another step towards hell...

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

  • icon
    Whatever (profile), 19 Nov 2015 @ 5:53am

    The lawyers here are hoping the use of "hushed tones" will be found to be roughly equivalent to shutting a phone booth door.

    I think that this may be trying a little too hard to stretch the Supreme Court's closed door ruling. Speaking in hushed tones suggests a desire for privacy, yet the location says otherwise. It's a very thin piece of logic to work from.

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

    • identicon
      Anonymous Coward, 20 Nov 2015 @ 5:51am

      Re:

      Speaking in hushed tones suggests a desire for privacy, yet the location says otherwise.

      They obviously should have teleported elsewhere if they wanted private conversations.

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

  • icon
    Mason Wheeler (profile), 19 Nov 2015 @ 7:17am

    If the court finds the FBI's actions lawful, it will serve notice that any public area is no place to hold a private conversation, even if the participants make every effort to ensure their relative privacy. This would be at odds with previous court decisions.

    ...but not with Techdirt's clearly-expressed opinion about "in public" being the very antithesis of "having a legitimate expectation of privacy". (See, for example, any article dealing with police officers asserting a right to privacy in an attempt to rid themselves of the scrutiny of citizens with cameras.)

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

    • icon
      That One Guy (profile), 19 Nov 2015 @ 7:53am

      Re:

      Just a small difference between the public actions of a public servant on the job, and the actions of a citizen attempting to have a private conversation in a public location.

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

      • identicon
        Anonymous Coward, 20 Nov 2015 @ 5:52am

        Re: Re:

        Just a small difference between the public actions of a public servant on the job, and the actions of a citizen attempting to have a private conversation in a public location.

        You just had to point that out, didn't you?

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

  • icon
    Wyrm (profile), 20 Nov 2015 @ 9:00am

    Ends justify the means?

    "The government has already argued that the warrantless recordings were legal as they were used to compile evidence of fraudulent behavior."
    Just no. There are procedures and warrants in place to make sure the LEO and agencies are acting within reason. If they can do anything and justify it afterwards, then there is actually no limit to their actions. The judge has to draw the line and strongly make it a point that the ends do not justify the means.

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

    • identicon
      Anonymous Coward, 23 Nov 2015 @ 11:24am

      Re: Ends justify the means?

      The judge has to draw the line and strongly make it a point that the ends do not justify the means.

      Unfortunately, many judges have told the cops that the ends DO justify the means. It's not surprising that the cops are running with it.

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


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