At 04:21 PM 8/8/01 -0700, Greg Broiles wrote:
At 08:59 AM 8/8/2001 -0700, Tim May wrote:
According to my sources ("The Sopranos" 8-)), those doing the bugging are supposed to "not listen" except when putatively criminal acts are being discussed.
The Sopranos gets it right - the process is called "minimization", and is intended to limit the evidence collected to only that which discloses criminal activity - there are strict rules about how a conversation can be sampled, as the show portrayed.
But the agents don't need to follow the rules if they don't intend to ever use the proceeds of the tap in court, or disclose its existence.
There is the additional use of evidence raised publicly in LA a few years back - that LEO routinely passed information collected during wiretapping to other officers that could be used to collect legal grounds for admissible search against people not directly related to the initial wiretapping. In the LA case, this was sometimes as simple as "be at X at Y time", where the tipped off LEO could observe an incident "accidentally" without having to reveal their source.
1) Are the secret warrants always revealed eventually, regardless of whether a court case happens or the evidence is introduced? Is it possible that there are N never-revealed secret warrants for every warrant discussed in open testimony?
Yes. There is a time limit for when they should be disclosed if they don't lead to a prosecution - that time limit can be extended by a judge, if the agents think they need more time to develop a case. I don't believe the (federal) law allows for taps to go undisclosed forever, but I believe it happens anyway. Since the undisclosed taps aren't likely to be the focus of litigation, there's no effective check on that practice.
I'd imagine this would depend on the nature of the investigation. If the feds can make a case that unsealing the warrant could compromise a "critical contact" (even if they are in fact a worthless paid informant used as a warrant justification factory) or a "critical technical means" (i.e. Radio Shack directional microphone), its likely this would never be unsealed. There are also cases where "national security" is raised by SS/CIA/NSA/EPA(sic), and the public will never see any of the paperwork shreds.
Somebody asked:
1) Are the secret warrants always revealed eventually, regardless of whether a court case happens or the evidence is introduced? Is it possible that there are N never-revealed secret warrants for every warrant discussed in open testimony?
Greg (I think) wrote:
Yes. There is a time limit for when they should be disclosed if they don't lead to a prosecution - that time limit can be extended by a judge, if the agents think they need more time to develop a case. I don't believe the (federal) law allows for taps to go undisclosed forever, but I believe it happens anyway. Since the undisclosed taps aren't likely to be the focus of litigation, there's no effective check on that practice.
The general identification and notice requirements of Title I are in Section 2518. 2518 delineates the procedures for applying for a court approved interception of wire or oral communications, the content of applications, the order(s) and the notice that must be sent after the fact to those persons whose conversations were intercepted. Additionally, 2518(10)(a) gives a right to suppress evidence under specified circumstances. The inventory and notice requirement of 2518(8)(d) entitles only those persons who were named in the court order to receive notice and inventory of the wire tap as a matter of right. Notice to all other persons, even though their conversations were overheard and they were identifiable is left to judicial discretion. The prosecutor has the duty to classify all those whose conversations have been intercepted and transmit this to the judge. If the judge wants more information, the judge can ask for it so as to fulfill his discretionary notice role. In United States v. Kahn, 415 U.S. 143 (1974), 2518(1)(b)(iv) was interpreted to mean that the only persons that must be named in a Title I application are those the government has probable cause to believe are involved in a criminal activity and will be using the target phone. So now they don't really have to investigate other parties known to be using the phone to see if they have probable cause for them or not. (This is "the dragnet effect.") Say you have a violation of the notice and inventory provision....the case law tells you that the courts have made distinctions between violations that are "central and substantive" - and those that are not (for the purpose of a motion to suppress). In United States v. Donovan, 429 U.S. 413 (1977), the court stated in dictum that the international failure to name individuals for the purpose of hiding a lack of probable cause would be substantial. Yet Donovan's footnotes have led lower courts to require the violation of the notice and identification provisions be INTENTIONAL AND PREJUDICIAL to the defendant to render it subject to a motion to suppress. It seems if the defendant has ANY notice of whatever form - there is no prejudice. Indeed, no effective check. ~Aimee
participants (2)
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Aimee Farr -
Kerry L. Bonin