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Judge Rules FBI Violated Fourth Amendment By Recording 200+ Hours of Audio At A Courthouse (thenextweb.com)
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.'"
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.
...just how many times the FBI has done this kind of blatantly illegal activity and and gotten away with it.
....than permission. so the recordings stay recorded but the FBI can't use them in court this week.
Wanna bet no one goes to jail?
"National Security is the chief cause of national insecurity." - Celine's First Law
When is it going to be illegal for all of us to be spied on without a good reason?
Charges were filed against at least 11 people and some have been found guilty already, so... yeah.
lol seriously.
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.
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 society encourage the best and discourage the worst, but that means that any citizen has the right to act as a journalist. We can legitimately expect journalists to follow certain ethical guidelines that we establish in law, no sneaky upskirt photography, no snooping on lawyer-client meetings, no taping people inside their homes or bathrooms without their knowledge unless they leave the blinds open. But everything done in public should be something a journalist (any citizen) has the right to record and report on.
US law pretty much reflects that philosophy. The test to ask is if a dirty politician does something bad in the environment and your favorite reporter witnesses it, should the reporter be able to record and report on it. If the answer is yes, then citizens are afforded the same right, even citizens acting as public officials at the time.
Consider this context: Your favorite reporter knows your least favorite dirty politician is up to something bad, so the reporter puts a microphone in a public place where the reporter suspects the dirty politician will talk about it. Should it be illegal for the reporter to do that? Should it be illegal to use the evidence the reporter gathered? If it shouldn't be illegal for the reporter, it shouldn't be illegal for lawyers, cops, or district attorneys either.
Anything you do in public is and should be potentially something that can be reported on or used as evidence. The law is supposed to protect the individual from abuse. The word "privacy" can mean lots of things, but protecting people from having what they do in public become public is not what the law is designed to do.
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 doing any actual investigation to solve current crime, they are merely recording possible evidence for use in possible future crimes.
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 neighbor is killing people in the neighborhood and storing their bodies in his basement freezer. You therefore break into his house and, in fact, discover the bodies of some of the "disappeared" people in the neighborhood. You are, regardless of what you find, guilty of breaking and entering (although, in this case the prosecutor might cut you a great deal - 1 day probation and wipe your record clean if you don't violate the probation). If, however, a policeman driving by sees the broken window you entered through and investigates and then finds you in the basement, the bodies that are in plain view in the freezer you opened are admissible (the police didn't enter the residence illegally, YOU did without any prompting or coordination).
Why is there an "insightful" mod and why isn't it "-1"? If I wanted insight, I wouldn't be reading
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.
Why is there an "insightful" mod and why isn't it "-1"? If I wanted insight, I wouldn't be reading
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.
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.
Why is there an "insightful" mod and why isn't it "-1"? If I wanted insight, I wouldn't be reading
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).
Why is there an "insightful" mod and why isn't it "-1"? If I wanted insight, I wouldn't be reading
Another judge in the Northern District of California recently ruled that this practice "unsettling" but constitutional. Same investigation, different cases.
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 which the parties to the communication may reasonably expect that the communication may be overheard or recorded".
And since you asked, Illinois's Supreme Court decided that the state's wiretapping law was unconstitutional because it banned recording even overt conversations. Many courts have held that wiretapping laws do not protect police from being recorded while they are performing their duties -- including at least one in California.
The Fourth covers government actions. If a government wants to restrict private spying, it needs to pass specific laws against it.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
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. The agency has streamlined it so they just need to make a phone call, basically 'dial-a-warrant', and they didn't bother to do what is legally required.
Policies and precedent are both clear: courts will dump otherwise solid cases when the government fails to meet the simple requirement of getting a rubber-stamped warrant.
//TODO: Think of witty sig statement
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.