LegalMatch: Criminal Law

Limiting the Scope of Federal Warrantless Wiretaps

“Call me on another line.  This phone is bugged.” 

How many times have we heard that in movies? Wiretaps make their cameos in all kinds of movies and television shows, but recently they have been the subject of real live disputes regarding the legality of government warrantless wiretap operations.  Last March a judge ruled that the F.B.I. violated a federal statute when it intercepted phone calls without first obtaining a warrant for wiretapping.

In a 45-page opinion, chief judge of the San Francisco Federal District Court Judge Vaughn Walker held that the government’s illegal wiretaps violated the rights of Al-Haramain Islamic Foundation, a now discontinued charity based in Oregon.  Plaintiffs in the case discovered that they were being wiretapped when the government accidentally handed over to them records of intercepted calls. 

Judge Walker determined that because they were subjected to warrantless surveillance, the plaintiffs had demonstrated “aggrieved person” status.  Evidence indicates that the plaintiffs may be able to prove over 200 days of unauthorized surveillance, which entitles them to recovery of certain damages.  The wiretaps, which were illegally conducted under authority of the National Security Agency (NSA) of the federal government, apparently are in violation of Federal wiretap statutes dating back to 1978. 

The Al-Haramain case involves the dynamic interplay between two very important federal regulations: the Foreign Intelligence Surveillance Act of 1978 (FISA) and a legal doctrine known as the state secrets privilege. 

First, FISA governs surveillance for the purpose of obtaining foreign powers intelligence.  FISA created a special court called the Foreign Intelligence Surveillance Court (FISC) which specifically hears requests for certain warrants such as those covering wiretaps.  Government agents are supposed to obtain a warrant from FISC before conducting wiretaps of the kind involved with Al-Haramain.  It is the violation of FISA and FISC procedures that allowed Judge Walker to characterize the wiretaps as illegal.  

Secondly, the Justice Department attempted to invoke the “state-secrets” privilege in order to prevent the Al-Haramain plaintiffs from using documents of the phone records in court.  Under the state secrets privilege, any lawsuit which could potentially reveal state secrets may be dismissed even without conducting a hearing on the merits of the claim.  Here, the Justice Department was unsuccessful in obtaining a state secrets shield, and the documents became available as evidence.

In this case, Judge Walker weighed the invocation against the FISA violation and concluded that the FISA law trumps the state privilege doctrine.  Walker was quick to point out that excessive reliance on the state secrets doctrine amounted to “unfettered executive-branch discretion” and that the doctrine had “obvious potential for government abuse and overreaching”.  In other words, agencies acting under executive authority from the President may not disregard statutes such as FISA.  This is monumental- prior to this holding, the F.B.I had access to nearly limitless warrantless wiretaps based on counter-terrorist justifications, and FISA had been all but entirely bypassed.

Upon delving into the Al-Haramain lawsuit, you can’t help but unearth the tale of secret wiretap and eavesdropping investigations instituted by the Bush Administration and continued under the support of the Obama administration. 

After the 9/11 attacks, the Bush administration became wary of FISA surveillance warrant requirements, claiming that they were too restrictive and cumbersome.  Bush then approved expansions for surveillance programs under the National Security Agency (NSA), which, among other things, increased wiretaps of persons suspected to be terrorists by the hundreds. 

The new program was referred to as a “Terrorist Surveillance Program” or TSP.  While the stated motivation behind the program was to monitor for terrorist activity, NSA agents could easily justify any warrantless surveillance by claiming that it was related to terrorist inquiries.    

As NSA wiretap activities deepened, Congress passed new legislation in 2008 which broadened wiretap powers by legalizing certain aspects of the NSA program and overhauling FISA.  Surprisingly, among the supporters who voted for the bill was Barack Obama, who was a still a senator back then.  The Obama administration’s position on wiretapping is similar to Bush’s aggressive expansion of surveillance efforts, and some critics have argued that Obama’s stance even surpasses that of Bush’s.  Even many Obama supporters were not aware of efforts to keep the NSA program out of the spotlight. 

Granted, national security is a top priority, but the NSA outfit created a huge clash between executive agencies and the statutes put forth by legislative powers.  The Al-Haramain ruling essentially declares the NSA program to be illegal, and signals a shift in balance back to the mandates of Congressional statutes. 

I think that perhaps the initial executive frenzy over national security partly justified the overuse of warrantless taps.  I mean, in a post-9/11 era that could effectively be considered a near-war state of conditions, perhaps it was indeed cumbersome to secure countless warrants.  But as the urgency behind the counter-terrorism rationale somewhat abates, it is only right that the agency powers re-align with the guidelines provided by Congress, especially for domestic matters unrelated to foreign matters.  As the attorney for the Al-Haramain plaintiffs put it, “Kings and monarchs are above the law, not U.S. Presidents- they don’t have the freedom to ignore the acts of Congress”.         

By: Jay Rivera

FBI Monitoring Social Networking Sites to Fight Crime

This might make intuitive sense. After all, criminals are often the most reliable early adopters of new technology. Terrorists, drug dealers, gun runners, and other ne’er-do-wells are constantly looking for new ways to communicate without the government listening in, so it makes sense that social networks might be useful as a tool to this end. There’s only one problem: the FBI is monitoring Facebook to deal with rowdy teenagers.

Apparently, authorities in Philadelphia are concerned with a recent spate of incidents involving “flash mobs” of bored teenagers. Flash mobs, for the unaware, are spontaneous meetups organized on the Internet, designed to create public spectacle. At their best, flash mobs are creative, harmless, and entertaining. This one is a classic (hundreds of people in a subway station breaking out in a choreographed song and dance routine during the morning commute, to everybody’s apparent delight). This is another great one (a bunch of people suddenly freezing in place in Grand Central Station).

Leave it to bored teenagers to take something fun, harmless, and benevolent, and turn it into something pointless, nihilistic, and destructive. Apparently, teenagers in Philadelphia, after seeing some of these videos on the internet (and completely missing the point), decided it would be fun to organize flash mobs of their own. The result? Hundreds of kids meeting in a pre-determined location, with nobody having decided what they were supposed to do there. So they ended up fighting amongst themselves, assaulting pedestrians, and vandalizing property. Basically, their version of a flash mob is more like a riot.

City authorities in Philadelphia have had enough. They’ve decided to start monitoring sites like Facebook, MySpace, and Twitter to see what those “no-good kids” are up to, and have sought, and secured, the help of the FBI in doing so.

Now, to be perfectly clear, I think that what these teenagers are doing is inexcusable. The utter pointlessness of this violence is particularly disturbing, and perhaps reveals something very unpleasant about the current state of society. Of course, every generation has been saying this about the generation that came before it, so maybe I’m just getting old. Still, government authorities have the right and duty to take every lawful effort to prevent violence against their citizens.

However, this seems like a job much better-suited to local authorities, rather than the FBI. Given that this appears to be a matter of purely local concern, and the FBI (being a federal agency, and all) primarily deals with crimes that transcend state and national borders, there seems to be little reason why the FBI needs to involve itself in this matter.

Furthermore, this raises at least some concerns about government snooping and privacy. Given some recent court rulings concerning online privacy and the government’s right to search emails, I think these concerns are legitimate.

Now, social networking sites are inherently different from email. First of all, they aren’t nearly as essential for communications as email has become, so it could reasonably be argued that a person can simply choose not to use a social networking site if they don’t want to (FarmVille addiction notwithstanding). Furthermore, people who post information and communications on social networking sites are voluntarily making available to a large number of viewers (though not necessarily the general public), meaning that they have much less of a reasonable expectation of privacy.

Still, most social networking sites now give users the ability to control exactly who sees their information (limiting access to friends and family, for example). This seems to create a reasonable expectation that nobody other than the people you have approved will see your information. If the FBI, or any other law enforcement entity circumvents these privacy protections to see what you’re up to, it’s at least arguable that your reasonable expectation of privacy has been breached.

To say the least, the authorities will have to tread lightly on this one. We all want to see this type of destructive behavior curtailed, and maybe this can be accomplished with a few high-profile convictions. After all, most teenagers like to put up a tough façade, but are scared little children on the inside. It would be a shame for charges against some of these kids or their parents to get thrown out on a technicality involving an improper search.

By: Rusty Shackleford

How Much Authority Do Police Have To Search You?

Ahhh, another new year. It's a time for keeping (or rather cheating to keep) resolutions to get healthier, smarter, and/or more cultured. It's also a time for buckling down again and getting back to work after the zaniness and hijinks from ringing in 2010. Though sometimes silently letting go of those 2009 indiscretions can be hard since, well you know, our society's pesky laws have an odd tendency to be broken at incredible levels during New Year's celebrations.

Arrests for DUIs, public intoxication, drug possession, and the all-time favorite: disorderly conduct, consistently spike at the beginning of each year. And taking a look at past LegalMatch statistics lends credence to the truth of this trend as the number of cases requesting legal counsel for these types of offenses also increase with every new year.

So what's the point of all this? Well, other than the interesting look into the human psyche that these statistics present (at least interesting to me), it got me thinking about one of the most common questions people ask me: how far reaching is a cop's authority to search and seize?

The simple answer is the police can check you as long as they have probable cause to do so. Probable cause means anything the police officer sees in your possession, vehicle, or even you that would give the cop some indication that you may have something in your possession, knowingly or unknowingly, that is illegal.

Whew. That was a mouthful. It sounds simple enough, and for the most part it is; but as you can probably already see, if the police can search you for anything that makes them suspicious, do they have any limit at all?

Well, to all you U.S. Constitution-carrying Americans out there, the answer is the police have really broad discretion to search you. The Fourth Amendment protects against “unlawful searches and seizures,” but what makes a search unlawful is a lack of probable cause. Similarly what makes a seizure illegal is taking something that isn't illegal or necessary for an investigation (which may or may not be return after said investigation depending on the situation).

The more interesting aspects of police search and seizures come in the form of vehicle checkpoints. You may be surprised to learn that drug checkpoints (i.e. points in the road where police mandatorily stop you to inspect your car for drugs) are illegal. Yes, that's right, the U.S. Supreme Court has rule that they're unconstitutional. Why? Because there is no probable cause.

But what cops can do is stop your vehicle temporarily if they suspect you may have drugs. Conversely however, most courts have upheld sobriety (drunk driving) checkpoints as constitutional. Go figure. But remember: even at a sobriety checkpoint, police must follow proper procedure to arrest a person and actually have it upheld.

As always, the best thing you can do if you're arrested is to get a lawyer. I mean, there's a reason that part is built into your Miranda Rights. Criminal violations are a serious blemish to your record. So don't take them lightly, and as always remember to party safe and with a reverence for the law. Sorry for being a buzz-kill.

Your Potty-Mouth Could Mean a Misdemeanor.

UK’s Metro reports on a strange case taking place in Pennsylvania, in which a woman is being charged with disorderly conduct after cursing at her overflowing toilet.

This story showed up in several US papers as well, eager to call attention to this unusual positioning of right to privacy and public nuisance laws. The woman in question, Dawn Herb, was called in to court after an off-duty policeman and neighbor called to complain about her loud swearing. His 12 year-old daughter was the first to bring the noise to his attention.

However absurd the story, the question of First Amendment rights is being brought to attention as well. Herb’s lawyer argues that his client was well within her rights when she loosed a string of profanities in her bathroom. The prosecution of such an action, he argues, is a violation of the Constitution because it suggests the intent to curtail or control her choice of speech. The prosecution, on the other hand, seeks to classify Herb’s loud outburst as a disorderly conduct misdemeanor, relying on Pennsylvania’s definition of disorderly conduct as including the use of “obscene language or gestures in a way that causes 'public inconvenience, annoyance or alarm'” [1].

 

So what parts of speech are actually protected by our First Amendment?

The First Amendment, which is the free speech and press amendment, guarantees the constitutional protection of ALL forms of speech EXCEPT:

• Speech that intends/tends to incite immediate lawlessness
• Obscenity and pornography in certain circumstances
• Fighting words in limited circumstances
• Offensive speech in limited circumstances

These “limited circumstances” vary from State to State and are often defined by the decisions made in high-profile court cases, where a standard is set for future, similar cases. Because Herb’s speech borders on “obscenity,” it is ultimately up to her lawyers to defend her speech as constitutionally protected, but some standards have been set by similar obscenity laws in broadcasting.

> Judge to decide on toilet swearer’s fate (Metro.co.uk)

by Kate Beall