Posts Tagged ‘eavesdropping’

Standing to Sue the NSA?

Monday, November 2nd, 2015

A couple of weeks ago, Wikimedia’s lawsuit against the NSA got thrown out. Wikimedia (and the ACLU, NACDL, Amnesty International, and many more) claimed the NSA was violating everyone’s rights with its “upstream” surveillance of internet communications. The court dismissed the case because nobody could prove that they had “standing” to bring the case in the first place. The plaintiffs failed to establish that the NSA had actually intercepted any actual communications. They relied on statistics — there are gazillions of communications that go over the wires being monitored, so there must have been improper interceptions. The court said “must have been” isn’t good enough, there isn’t standing, good day.

This isn’t the first time that’s happened. A few weeks before that, a Pennsylvania divorce lawyer had his case against the NSA shot down for the same reason — he couldn’t prove that he himself had been harmed, because he couldn’t show that any of his communications had actually been intercepted. So no standing, case dismissed.

These cases rely on the 2013 Supreme Court ruling in Clapper v. Amnesty International, which held that merely “possible” injury isn’t enough to assert standing in a case like this. You need to show that the injury is real, and either actually happened or is truly imminent. Even if there’s a reasonably good chance that your communications were intercepted, that’s not good enough. There’s no res ipsa loquitur when it comes to standing here.

Of course, that’s nonsense, because the whole doctrine of res ipsa is basically “yeah, the plaintiff can’t prove you harmed him, but come on! It’s pretty obvious you must have.” It’s rebuttable, but the doctrine at least lets the plaintiff into the courthouse. [Yes I know Fourth Amendment and First Amendment jurisprudence aren’t exactly the same as that of negligence in Torts, but come on.]

It doesn’t matter, though, because this is what the Supreme Court always does in cases like this. None of this is a surprise to anyone.

In Clapper, the appellants wanted the Court to say  §1881a of FISA is unconstitutional, as is the NSA’s surveillance of communications. The Supreme Court did not want to deal with these issues. This “no standing” decision is their way of saying that.

An important fact about the Supreme Court is that it doesn’t have to take every case that comes its way. It gets to pick and choose, for the most part. They exercise this discretion, for the most part, based on purely nonpolitical considerations such as how busy they are. Or because a given case isn’t the right one to make a ruling with, and they’re waiting for a better one to come along. (Sometimes they do appear to cross the line with their discretion, see Bush v. Gore, and when that happens the entire authority of the Court gets called into question. A lesson that has to get re-learned every now and then.)

Prudence is another consideration that the Court takes into account when accepting or rejecting a case. In other words, “we’d better not get involved in this issue.”

If you look back at all the times the Court has skirted an issue by saying a party had no standing, it’s hard to find a definition of standing that reconciles them all. I’ll go so far as to say that they are irreconcilable. There is no consistent theory that explains them all. Except, that is, the consideration of Prudence. When you take into consideration the Court’s desire to not go sticking its nose in a sensitive matter, everything becomes clear.

It’s been the Court’s practice to do this for a long time, now. This very fact was taught in the very first class of my first year of law school, back in 1993, and it was already an old habit long before then. So it cannot have come as a surprise to anyone. I’ll bet you a dollar that even if you did find proof that your personal communications had been intercepted — and after Snowden and all the other post-Clapper revelations, it’s easier to meet some of the Court’s conditions — they’d still find a way to say you lacked standing. They’ve left themselves plenty of wiggle room, there.

That doesn’t mean you don’t keep trying! Just don’t be surprised if they keep refusing to get to the merits. They don’t want any part of it.

What’s the remedy for blatant wiretapping violations by the feds? Finger-wagging, sure. But suppression? No way.

Thursday, April 21st, 2011

 

Wiretaps are arguably the greatest invasion of privacy that the government can do.  They’re listening in on private conversations, not intended to be overheard by anyone else.  So to get a wiretapping warrant, the government has to do more than for a normal search warrant.  There has to be more than just probable cause that they’re likely to find evidence of a crime.  Only certain crimes count.  There has to be good reason to do a wiretap as opposed to some other less-invasive investigative technique.  Only particular conversations can be sought, over particular phones.  Etc. etc. etc.

Not only is there a heavier burden to meet before a wire can be granted, the government has to comply with some very strict rules as they carry out the eavesdropping.  On that issue of particular conversations, for example, they have to do what they can to minimize the amount of non-relevant or privileged conversations that get listened to.  This is called “minimization.”  When it appears that a call isn’t pertinent (i.e., it isn’t evidence of a crime), or that it’s privileged (as a call with one’s attorney, doctor or spouse), then they have to stop listening and recording.  The call gets “minimized.”

The cops or agents who are monitoring the wire have to do more than just act in good faith.  Their minimization has to be objectively reasonable — the law only cares what an ordinarily reasonable person have thought in the circumstances, not what the cop himself happened to think.  So a properly-run wire is going to have minimization procedures that are spelled out at the beginning of the investigation, in writing, signed by every agent before they get to monitor any calls, with a reference copy there at the monitoring location just in case there are any questions later.  The prosecutor is going to be involved throughout, and it’s really the prosecutor’s responsibility to make sure that everyone knows what they can and cannot do.  It’s also the prosecutor’s job to review all the calls that were intercepted and, among other things, make sure that the cops are minimizing properly.

But what happens if the government doesn’t do that?  What happens if oblivious or malicious agents record and listen to all kinds of personal calls that have nothing to do with the crime they’re investigating?  What happens if a lazy or inexperienced prosecutor fails to nip it in the bud, or if a malicious prosecutor allows it to keep happening?

It’s an important issue these days, because the feds have been doing exactly that.

-=-=-=-=-

As we’ve pointed out a few times, the feds have been all gung-ho for doing wires on white-collar stuff these days, but the white-collar teams aren’t exactly the most experienced at doing wiretaps properly.  For one thing, the feds hardly (more…)

Need CLE? Want to Learn How to Defend Wiretap Cases?

Tuesday, April 7th, 2009

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There’s probably some really juicy legal stories out there today, but we haven’t bothered to look yet. Instead, we’re spending our free time preparing for our upcoming CLE webcast at 11 a.m. Eastern this Friday at West LegalEd Center.

This will be the second in our “Hope for Hopeless Cases” series. We’ll be talking about ways to defend cases where your client’s on tape. Title III stuff, body wires and consent recordings. We’ll discuss weaknesses to look for and exploit in litigation, and give you some tools for cross examination and argument at trial. 1.5 hours, accredited in most states.

NYPD and DOJ Wiretap Fight: Each Accuses the Other of Endangering the Public

Friday, November 21st, 2008

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Over the summer, New York City’s police force demanded that the FBI and the Justice Department make it easier to get wiretaps on suspected terrorists. The feds refused, and the dispute has escalated ever since. The New York Times reports that correspondence has flown between the U.S. Attorney General and the Police Commissioner themselves, as “each accuses the other of mishandling terrorism cases and embracing an approach that made the public more vulnerable.”

Wiretaps are considered one of the most invasive state actions, and so any request for electronic eavesdropping is going to be put under enormous scrutiny before it is ever presented to a judge. Every “i” must be dotted, every “t” must be crossed, and no detail is too small to be overlooked. The slightest inadvertent error can result in a wire being deemed improper, resulting in the exclusion of all the evidence gathered as a result. No law enforcement agency wants to spend vast amounts of time and money on a wire investigation, only to have the evidence thrown out.

So prosecutors carefully prepare wire applications, dissect them, and then send them up the chain of command for approvals. In the DOJ, these internal approvals can take an extraordinarily long time. New York City prosecutors, with bureaus specializing in such applications, can turn around a wire application much faster. Although both tend to err significantly on the side of caution, to minimize the chance of error being found down the road, the feds are much more cautious than the city prosecutors, and will reject wiretap applications that would have passed muster in the DA’s office.

Also, federal wiretaps tend to be short and sweet, not often extending beyond the initial 30-day period normally authorized. Renewal of the authority requires another application, and there just isn’t time to jump through all the hoops while the evidence is still coming in. City-initiated wiretaps, on the other hand, can sometimes extend for 18 months or longer, as they lead to more phone lines and additional evidence.

So there is already a cultural divide between federal and city law enforcement when it comes to wiretaps. The feds are traditionally much more cautious and unlikely to request a wiretap,* while NYC law enforcement, though still very cautious, is not nearly so shy.

Now enter the FISA Court.

The Foreign Intelligence Surveillance Court is set up to review applications for warrants to eavesdrop on suspected spies or terrorists. The court must find probable cause that the target of the surveillance is a foreign agent or terrorist, that the wiretap is going to turn up evidence of such activities, and there is no reasonable less-invasive way to get the evidence.

Only the FBI and the DOJ have access to the FISA Court, however. So if the NYPD wants to get a warrant, it needs to submit it to federal scrutiny. That subjects their applications to much lengthier review, as a result, and also makes them more likely to be rejected and not presented to the court in the first place.

The NYPD now believes that its efforts are being thwarted, and accuses the feds of improperly blocking its wire applications.

So on October 27, police commissioner Ray Kelly accused the feds of putting the public at risk by being too nit-picky. He wrote that the feds were “constraining” critical terrorism investigations, and “doing less than is lawfully entitled to protect New York City,” so that “the city is less safe as a result.”

Four days later, attorney general Mike Mukasey wrote back saying that the city’s approach would be counterproductive, because they’d seek warrants that might exceed what the law allows, so that the evidence gathered could be thrown out, thereby making the citizens less safe.

Mukasey seems to see the FISA Court as little more than a rubber stamp. Presumably, if the court was doing its job, a warrant application that didn’t satisfy the law would be rejected by the court itself. But the DOJ appears not to trust the court to do its job, and so would act as a stand-in for the court.

Although the NYPD didn’t make that point, it did respond by putting the blame squarely on the DOJ for taking too long to review applications, and for applying “a self-imposed standard of probable cause which is higher than that required by Supreme Court precedent.”

As a former prosecutor who did quite a lot of wiretaps involving both city and federal authorities, your humble blogger will be very interested to see how this pans out. In the meantime, it looks like the fight is only getting started. Stay tuned.

* This perplexes the New York Times, which has long accused the Bush administration of trying to improperly extend its wiretapping authority and other national security powers. Many insiders, however, blame the administration for trying too hard to appease its opposition by limiting governmental powers and announcing that to the world, thereby only creating opposition where none previously existed. So while the criticism from the left about wiretapping and other legalities may have been undeserved, the administration has no-one to blame but itself.