Judge Rules FBI Violated Fourth Amendment By Recording 200+ Hours of Audio At A Courthouse (thenextweb.com) 95
An anonymous reader quotes a report from The Next Web: A federal judge in the Bay Area ruled that the FBI violated the fourth amendment by recording more than 200 hours of conversation at the entrance to a court house. Agents planted concealed microphones around the San Mateo County Courthouse in 2009 and 2010 as part of an investigation into bid-rigging at public auctions for foreclosed homes. In November, lawyers representing five defendants filed a motion that the recordings were unconstitutional on fourth amendment grounds (illegal search and seizure). U.S. District Judge Charles Breyer wrote in an order yesterday: [T]he government utterly failed to justify a warrantless electronic surveillance that recorded private conversations spoken in hushed tones by judges, attorneys, and court staff entering and exiting a courthouse. Even putting aside the sensitive nature of the location here, Defendants have established that they believed their conversations were private and they took reasonable steps to thwart eavesdroppers. The report continues: "The FBI originally used a cooperator wearing a wire to eavesdrop at auctions as well as an undercover agent posing as an investor. At some point though, the cooperating source 'soured' according to FBI testimony and it became 'typical behavior' for the accused to 'walk away from a larger group' and speak 'separate[ly] from [the] informant and undercover agent.' The FBI then adopted the new technique, bugging the courthouse and collecting more than 200 hours of audio over a nine month span. The problem, as pointed out by Judge Breyer, was: '[The FBI was] capturing the conversations of anyone who entered or exited the employee entrance of the courthouse... The FBI never sought judicial authorization for this program.'"
Conversation in public location (Score:1, Insightful)
Uhhh... a conversation in a public location has never had the expectation of privacy.
Oh? Judges and lawyers were involved? Once again, there are rules for us, and different rules for them.
Re: (Score:1)
Actually, in lots of The States it is in fact illegal to record people without their knowledge/consent. In those states, evidence gathered this way without a warrant is typically (always?) inadmissible in a court of law.
Re: (Score:2)
Those variances are due to state law. Since this was a Federal judge finding on U.S. Constitutional grounds, I don't believe the state laws have any bearing here (but, of course, I haven't RTFO).
Re: (Score:2)
They do, if the recording happened in a state. Which it undoubtably did.
Re: (Score:2)
Based on the summary, this was strictly a Fourth Amendment case and not the direct result of violation of state law.
Arguably, the suspects might have a stronger argument of "expectation of privacy" in a state where two party consent was required than in a state where no party needed to consent to recording in a public place. However, the fact the suspects appeared to attempt to keep their conversations private probably make such a claim unnecessary.
The county prosecutor could, of course, try to charge the F
Re: (Score:2)
Is it possible to claim both state law and federal law in a single case?
Re: (Score:1)
There are "one-party consent" states where it's legal to record a conversation in a private place, if only one of the participants consents to the recording (e.g. you can record your conversation with someone else, without informing them). And there are "two-party consent" states where BOTH parties have to consent. In ALL states it's illegal to record a private conversation if NEITHER party consents, unless there's a judicial warrant. The FBI argued that since the outside of the courthouse was accessible
Re: (Score:2)
On top of that it's frequently the case that recording anywhere inside a courthouse (not just the courtrooms) is a criminal offence - even in countries with otherwise very open recording laws.
Re:Conversation in public location (Score:5, Insightful)
If it's something that would be illegal for a normal person to do, then the government needs a warrant. Period.
Re:Conversation in public location (Score:5, Insightful)
Re: (Score:2)
Governmental officials are exempt from the law due to Qualified Immunity.
Re: (Score:2)
Qualified immunity doesn't apply if the agent of the state is violating a Constitutional right. Only judges are completely immune when acting in their official capacity.
Re: (Score:2)
The court's ruling here has almost nothing to do with whether the courthouse entry was a public place. That has never been the sole factor when courts decide whether a reasonable expectation of privacy exists.
The targets here didn't need to pull down a Cone of Silence [wikipedia.org] to have a private conversation; walking away from others and speaking quietly shows their desire for privacy, and the fact that the FBI switched from an informant to technological measures shows that the measures were effective.
Re: (Score:2)
I think the 'hushed tone' and 'expectation of privacy' is key here. You can expect everything you say in public to be overheard. If you take steps to avoid eavesdropping, then it becomes a private conversation. With current technology, you can overhear things being said behind a closed door, that doesn't make it 'public'.
Re: (Score:3)
Re: Conversation in public location (Score:2, Insightful)
Bullshit. I am so sick to death of the 'if you do it in public you have no expectation of privacy'. That's wrong, absolutely wrong.
I have no expectation of invisibility, or in this case inaudibility. Someone might see me, someone might hear me. There aren't a lot of things you can do about being seen, but there's plenty about being heard. You can talk quietly. You can stop talking when others are around and you see them. You can notice someone taking an excessive interest in what you're doing and con
Re: (Score:2)
Charges were filed against at least 11 people and some have been found guilty already, so... yeah.
Re: (Score:1)
lol seriously.
Re: (Score:2)
Was the bidding rigged or not?
That's the frustrating part. It was, but those who were caught now have an escape clause.
The agency could have gotten a warrant. They didn't. They had plenty of probable cause to get a warrant indicating that someone would be wearing a wire or that they would be bugging the area where suspects would likely be talking. They had ample opportunity to get the warrant, and a judge would have rubber-stamped the thing. But for whatever reason, anything including laziness and incompetence, the agents did not do
It's this kind of shit that makes you wonder... (Score:5, Insightful)
...just how many times the FBI has done this kind of blatantly illegal activity and and gotten away with it.
Re: (Score:1)
I used to wonder. Hearing about this type of shit doesn't fill me with wonder though. It fills me with certainty.
Re: (Score:1, Flamebait)
Who do they think they are, Hillary?
Re: (Score:1)
Re: (Score:2)
"Serve and Protect" unless we look bad. [See let a spy go as an "unregistered agend of a foreign government [reuters.com]
If you are not connected, you are collateral.
Re: (Score:2)
In the Enigma case, it's not "bigger fish to fry", it's "let's not alert the enemy that we can break their codes". After all, if you have a supposedly unbreakable encryption, and everyone's using it, and yet you start finding the enemy blockading your path everywhere you go, you'll get suspicious. At this p
easier to ask for forgiveness (Score:2)
Re: (Score:2)
They also can't use any evidence that was uncovered because of these recordings. Fruit of the poisonous tree, and all. I have no idea what that does to the rest of their case.
Re: (Score:2)
Parallel construction. They might still be able to figure it out anyway.
Re: (Score:1)
I miss Slashdot. What happened? Do you really think that you can return to the relevance that the site had from 1997-2002 by completely abandoning technology as its focus?
I miss real privacy when owning a computer. I also fail to understand greybeards who somehow cannot seem to grasp the fact that a story directly related to privacy laws somehow has no bearing on the privacy-sucking technology that has now consumed our fucking universe.
Re: (Score:1)
He's not a greybeard he's a paid astro-turfer. Learn to recognize the difference early and you'll come out ahead in life.
What are the odds? (Score:3)
Re: (Score:2)
Wanna bet no one goes to jail?
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person ...
It's OK. They weren't trying to break the law. Their predecessors did the same thing and they only did it out of convenience. They were just careless, but they're real sorry and they promise not to do it again (and get caught).
Re: (Score:2)
Re: (Score:2)
Law enforcement is immune from most criminal acts (Qualified Immunity) unless they "willfully and knowingly" violate someone's constitutional rights and there is no objective reasonableness to their actions. Those are a lot of tests, nobody is going to jail here because nobody ever decided they "shouldn't" and as many morons here on /. utter "but it was in public" - to the average slashdotter and by extension average law enforcement agents it is 'reasonable' to just plant video and audio feeds everywhere in
Re: (Score:2)
Law enforcement is immune from most criminal acts (Qualified Immunity) unless they "willfully and knowingly" violate someone's constitutional rights...
And it took a judge to explain the 4th Amendment to members of law enforcement who "willfully and knowingly" engage in a job that relies upon having said requisite knowledge to avoid legal snags like this that can invalidate hundreds of man hours worth of work?
Perhaps we should change the name of the educational program to "No Police Officer Left Behind" instead of worrying about the children.
Re: (Score:2)
Re: (Score:2)
In case of law enforcement, it is. That is what the qualified immunity doctrine establishes - law enforcement can be fairly reasonably ignorant of the law. Again, if it is reasonable to expect that someone didn't know that what they did is too broad or illegal without having a law degree, they are immune. If something is established procedure in a police department, the individual officers are immune.
Re: (Score:2)
Re: (Score:2)
For you and me but for law enforcement it most certainly is, thanks to the Supreme Court. http://www.npr.org/2014/12/15/... [npr.org]
Re: (Score:2)
It's only illegal when it affects those with power (Score:4, Insightful)
When is it going to be illegal for all of us to be spied on without a good reason?
Re: (Score:2)
Never. Hopefully. Depending on your definition of "spied on."
It is a terrible idea for the government to be able to determine who is a legitimate journalist and who isn't. Imagine Fox News or CNN (which ever you hate more) being the sole news authority and it's obvious why. Letting the government determine who is a journalist leads to a situation where the public is only given government approved news.
If the government doesn't determine who is a journalist, then anyone can be a journalist. Hopefully we as a
Re: (Score:3, Insightful)
There is a really big difference in a targeted investigation where you tape a conversation conducted between your mark and someone else versus taping everyone in an area no matter who they are or what time of day they are there. The very fact that the FBI did not get a warrant tells me that they KNEW what they were doing was illegal and there wasn't a single judge in the nation that would sign off on it. That is why I have real issues with the mass surveillance conducted by law enforcement. They are not doi
Re: (Score:2)
I believe it's likely in the case of the reporter that even if recording the conversation was illegal for her to do it, the recording would be admissible if police got hold of it legally (such as if the reporter, unprompted, sent it to them). Fourth Amendment restrictions on evidence generally only prevent government actors (or their agents) from gathering evidence without consent or warrant in a situation where they don't have the right to.
Suppose you, as a private citizen, simply have a hunch that your ne
Re:It's only illegal when it affects those with po (Score:4, Insightful)
When is it going to be illegal for all of us to be spied on without a good reason?
In the U.S., it has been illegal since June 21, 1778. It's just that all three branches of our government ignore the Constitution, and the judiciary rewrites parts of it almost every time it hears a case.
Re: (Score:2)
This was a finding in a US District Court, not a US Court of Appeals or US Supreme Court so it has little, if any, precedential value. Any court (and even this same judge) is free to ignore this ruling in analyzing other cases.
Re: (Score:2)
The Stessmen v. American Black Hawk decision was from the Supreme Court of Iowa, so it has, um, limited applicability in California. But you're right that video recording public events is pretty much fair game.
In California, it is fair game to record a conversation held in public -- the state's wiretapping law only covers "confidential communication[s]", which specifically excludes conversations in public gatherings, proceedings of the government that are open to the public, and "any other circumstance in
Re:Bad decission (Score:5, Informative)
Stressman v. American Blackhawk Broadcasting is not relevant to this case. Stressman was a finding by a state (not Federal) court on a civil (not criminal) case between two private parties (not the government and a private party). It had absolutely nothing to do with law enforcement violating a defendant's rights enumerated in the Fourth Amendment of the United States Constitution.
In the San Mateo case, the opinion makes it clear that the defendants (as well as participants in other completely unrelated conversations that were recorded by the microphones) consciously were trying to keep their conversations private as evidenced by speaking in hushed tones, stopping talking when another party approached, etc. As there were no other people close enough to hear the defendant's conversations, they had an expectation of privacy -- an expectation which the microphones violated.
I don't know how this will go on appeal (if there is one), but Stressman won't be cited by either party in such appeals.
Note, for example, that the Supreme Court has held (Kyllo v. United States) that the police's use of FLIR from a public vantage point to "peer" through walls of a private home to determine if "grow lights" were being used inside constituted a "search" and that, without a warrant, it was a violation of the defendant's Fourth Amendment rights. Note, however, that Kyllo, in no way prohibits me from standing on the sidewalk in front of my neighbor's house and using FLIR to figure out what is going on inside (some state laws may do so however).
The lineup in Kyllo was somewhat interesting. It was 5-4 with Scalia, Souter, Thomas, Ginsburg, and Breyer finding the search violated the Fourth Amendment while Stevens, Rehnquist, O'Connor and Kennedy dissented. The common belief that the conservative members of the court are "anti-defendant" was once again dispelled in this case.
Re: (Score:2)
The Fourth covers government actions. If a government wants to restrict private spying, it needs to pass specific laws against it.
Re: (Score:2)
The lineup in Kyllo was somewhat interesting. It was 5-4 with Scalia, Souter, Thomas, Ginsburg, and Breyer finding the search violated the Fourth Amendment while Stevens, Rehnquist, O'Connor and Kennedy dissented. The common belief that the conservative members of the court are "anti-defendant" was once again dispelled in this case.
But like Heller which was also a 5-4 case, it only depends on one justice changing and Scalia is dead so the court will likely be anti-defendant and anti-2nd Amendment soon.
Re: (Score:2)
That would depend on state law. In some states it would be illegal, in others perhaps not.
However, in no case would would what you describe be a Federal Fourth Amendment case (assuming, of course, that you are not either a government actor or acting at their direction).
Conflicting ruling in the same court (Score:1)