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Join the conversation! There are now 17 comments on “Police vs Privacy pg 36
  1. pingo1387 says

    Do people normally take shifts when working with a wiretap? I imagine that one person doing it all would be very stressed and sleep-deprived. Taking shifts seems like the logical thing to do.

    • The detectives certainly do. But though prosecutors often work on these in pairs (depending on how their DA’s office is run), they tend to work together rather than tag-teaming.

      There’s a reason why so many wires happen to be their prosecutor’s first one. Many don’t want to do another one afterwards. This lack of experience can be a bonus for a defense attorney who knows what to look for.

  2. austin says

    i like the pi clock in the back.

  3. I’m beginning to see why the law is so lenient on private security cameras; they allow investigators to use surveillance from private citizens. Since it’s technically not a police action but evidence gathered at the scene by a potential witness, it cuts through all this red tape like a chainsaw. Investigators can (with permission, I assume) just take tapes from a nearby store/building/lightpost and use that instead of climbing through all these horrendous loops and hurdles here.

    Or am I missing something with that? Please correct me on any false assumptions.

    • You’re right that, in general, the law doesn’t suppress evidence that wasn’t gathered by law enforcement. The Constitution protects you from excesses of your government, not from stuff other private individuals are doing.

      But in the eavesdropping area, it gets a little sticky. Because the invasion of privacy is so, uh, …invasive.

      It’s against the law for private citizens to secretly record on other people’s private communications. (There are variations from state to state on what’s acceptable, but this is enough for now.) That’s why private security cameras usually only record video, and not audio. So those kinds of recordings tend not to involve wiretap issues.

      But then there are GoPro cameras people wear, and Google Glass, which do record both. And of course the ubiquitous cell phone video. Even these, however, aren’t usually intercepting private communications that nobody expected to be overheard, because the filmer was right there hearing it all herself.

      But let’s say a private citizen DID break the wiretap laws, and set up a camera that surreptitiously recorded video and audio of private communications. Or tapped someone’s phone or Skype session. In federal court, the government still would NOT be allowed to use it as evidence, even though it wasn’t the government violating your privacy rights. The invasion of privacy is just too much.

      Eavesdropping aside, however, most of the time when evidence was gathered by a private individual, and not by the government, the Fourth Amendment DOES NOT APPLY. There’s no suppression issue, because the police didn’t do anything wrong.

      Unless, of course, the individual was acting as an agent of the police — at their request, under their direction, or otherwise acting on their behalf. You see this a lot with informants. In that case, because law enforcement was directing what the private individual was doing, the Fourth Amendment WILL apply, and all the suppression issues remain in play.

  4. Seeing the hoops these folks have to go through for a wiretap makes me feel much better — I’m glad TV is wrong yet again. But here’s my question: Is this scenario what is *typical* of this process, or it is what’s *ideal*?

    The cynic in me is saying, “Sure, that’s what’s SUPPOSED to happen, but in real life the DA is more likely to be a lot more accommodating, and judges aren’t nearly so picky.”

    So what’s the case? How close to typical is your scenario? (Please! Restore my faith!)

    • Actually, I’ve left out some of the stuff they have to do (stuff that is just as likely to lead to suppression if done wrong). And the feds have even more internal procedural hurdles, though they’re starting to streamline their process. That’s one reason why the feds tend not to do anywhere near as many wires as state law enforcement does.

      This example is simplified, but it’s probably close to reality in most jurisdictions. As with everything else, though, how accurate this is will vary from county to county, with different prosecutors’ offices having different philosophies and levels of experience. (Though experience isn’t necessarily a good indicator — I’ve seen applications from places that do lots of wires, that were so improper it was astounding. But the judges there didn’t know any better, or didn’t care, and had kept granting them.) And individual judges vary in how carefully they read the applications.

      And, as in any suppression issue, there are judges who’ll make bad rulings later on. Stuff that should get suppressed winds up being allowed into evidence anyway. You’ll see that kind of thing happen especially where the crime was notorious, the judge is convinced of guilt, and/or it would mean throwing away the fruits of a very long and expensive government investigation.

      For the most part, though, I’d say this is close to the mark.

  5. Robert Montrose says

    “Forest for the trees,” my God, with that much paper, Pi will have cut down a whole forest by the time she’s done, and then there won’t be either! Any chance a modern prosecutor can do much of this with computer software and cut down on the coffee-stained paper?

    • I would guess in general probably not. These are the kind of things that are going to need to be signed for, and/or go into records. Hard copy records are a lot harder to tamper with than digital.

  6. Tony Tonev says

    What about after the Patriot Act and NSA snooping? Is this still relevant? I suppose regular law enforcement doesn’t get access to NSA intel in ordinary cases?

    • That’s an excellent question, Tony.

      The short answer is all of this is absolutely still relevant. PATRIOT had some debatable provisions, but it didn’t take away your Fourth Amendment rights or overrule Supreme Court decisions, and the courts have been shutting down the more egregious provisions and interpretations.

      As for law enforcement getting stuff from secret squirrels…? Well, that one doesn’t really have a short answer.

      Law enforcement and intelligence play by different rules. Law enforcement’s goal is a criminal conviction and punishment. The State is not allowed to convict or punish unless it has first proved guilt beyond a reasonable doubt. To prove guilt, the State is not allowed to use evidence that was collected in violation of the defendant’s constitutional rights. So law enforcement must be careful not to violate those rights when collecting evidence.

      Intelligence services don’t have that concern. They aren’t there to prosecute criminals, but to protect our national security. Their goal isn’t to collect evidence so a prosecutor can use it, but to collect data for use by the military, by counterterrorism, by counterespionage, and other defenses against foreign attack. You don’t worry about the U.S. Bill of Rights when intercepting enemy signals or searching for a terrorist’s secret plans in Jalalabad.

      Furthermore, the U.S. Constitution doesn’t protect foreigners outside our borders, so the Fourth Amendment isn’t going to be a concern anyway for evidence gathering from such sources.

      Spying domestically, however, or on U.S. citizens abroad, is another matter. The FISA court is there to issue warrants as needed in such situations.

      Now there isn’t really any constitutional prohibition against using evidence at trial that happened to be gathered by an intelligence organization rather than a police officer. If the Fourth Amendment happened to apply, and the intelligence agency got a lawful FISA warrant first, it’s just as admissible as anything else. And if the Fourth Amendment didn’t apply, then there’s nothing keeping the evidence out anyway.

      The walls we put up between intelligence and law enforcement are really more for the protection of intelligence. Because trials are public, and the source of the information is going to be made public. And the defendant — the member of an enemy organization! is entitled more than anyone else to see and challenge the evidence against him. An intelligence agency isn’t going to blow an operation, blow the cover of its agents, reveal the methods by which it gathered the evidence, undermine our nation’s defenses… just to put somebody in jail. So for the most part, they simply choose not to share what they’ve learned with domestic police or prosecutors… unless doing so is strategically advantageous for some reason.

      Also, for the longest time, they avoided accepting useful intelligence data that law enforcement had collected. The reasoning was absurd, if you think about it. There was a court rule back in the day that, if the “primary purpose” of the intelligence operation was national security, then they didn’t need a warrant. But if the primary purpose was law enforcement, then they did. Intelligence agencies were afraid that, if they accepted intel from law enforcement agencies, a court would say their operation wasn’t “primarily” one of national security. We don’t hire dummies for these jobs, but that was the dumbest policy. If you’re trying to stop bullets bombs and belligerents, then fucking accept the fucking data and fucking say thank you. And if a court later on says you should have gotten a warrant, who cares? So you don’t get to throw someone in jail. So what? You stopped the bad guys, and that’s what matters. (If you want to know more about this, the United States Foreign Intelligence Surveillance Court of Review wrote a really good summary in In re Sealed Case, 310 F.3d 717 (FISCR 2002) — in Google Scholar, scroll down about 3/4 of the page, to marker 742 or so.)

      Because they were afraid of taking info that law enforcement had learned, the U.S. intelligence community missed out on a trove of intel in cases like the 1993 World Trade Center bombing. If they’d gotten to the culprits faster — particularly Ramzi Yousef (who you probably haven’t heard of) and his uncle Khalid Sheikh Mohammed (you may have heard of him) — it is entirely possible that they could have prevented not only the devastating 9/11 attacks that KSM subsequently planned, but the U.S. Embassy bombings in Kenya and Tanzania, the bombing of the U.S.S. Cole, the murder of Daniel Pearl, many foiled airliner bombings, at least one other successful one, and much more. Not kidding.

      The PATRIOT Act made it a lot easier for intelligence to accept info from law enforcement, simply by changing the phrase “primary purpose” to “significant purpose.”

      But although technically the PATRIOT Act also made it easier for intelligence to share information with law enforcement, the same fundamental disincentive remains. Even if you got a FISA warrant, you’re still not going to share your operational secrets in the hopes of convincing a jury back home that this one guy did something bad. (Yes, there are rules saying the judge would look at the evidence in private, and the defense can only see a redacted version of the evidence, but are you going to risk everything for that, in the hopes that the bad guys can’t put two and two together? No way.)

      And of course, if they didn’t get a warrant, and a court later determines they should have, then the evidence still can’t be used.

      HOWEVER…

      There is a thing called “parallel construction.” (I wrote about it a few years ago when the phrase made the news.)

      Imagine you’re an intelligence agent. You’ve got some hot intercepts from some bad guys’ phones. There’s no way law enforcement could use the evidence, and anyway you don’t want to reveal that you even have it, for excellent reasons. But if the cops could stop the bad guys — maybe even put them out of commission, or spook other more important baddies into some overt act — then that would be a great way to act on the info without anyone even remotely suspecting that you’d ever had it. Excellent.

      So what you do is, you tell law enforcement to look out for so-and-so. You don’t tell them necessarily what to look out for. But you give them enough to start poking around and stumble — perfectly lawfully — on evidence that leads to the arrest and conviction of the bad guys. And you tell them that they absolutely, positively, may not use what you told them in any way. This is just to point them in the right direction, no more.

      People get that wrong a lot. They think it’s where law enforcement got a piece of evidence illegally, and try to think up another way to come by it lawfully. You’re not giving them the evidence, but just giving them an opportunity to find it for themselves. They can’t use what you told them as the basis for a search warrant, or as the basis for a warrantless search. But they can use it as the basis to start paying more attention to something. And of course you’re not going to tell them anything that could damage your operation, because you’re not stupid.

      And… I’m rambling. Hope this answers your question. I’m not even going to scroll up and check if it makes sense. Life’s too short.

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