FBI Found To Be Harvesting Surreptitious Recordings Around Two Other California Courthouses

(Mis)Uses of Technology

from the bugging-in-bulk dept

Earlier this year, the FBI was catching heat for some undersupervised and overly-broad surveillance it deployed around the San Mateo courthouse in California. Hoping to catch conversations related to suspected bid-rigging during real estate auctions, the FBI scattered hidden microphones around the courthouse steps where the auctions took place.

The defendants’ legal representation raised hell, claiming the surreptitious recordings violated their clients’ rights. After all, the Supreme Court had declared in 1967 that closing a phone booth door was not dissimilar to holding a conversation in hushed tones, bringing a limited expectation of privacy to public places.

The FBI couldn’t have felt all that confident about its secret recordings as it vowed not to enter any of the conversations it captured into evidence. That wasn’t enough for the judge, however, who said he still needed to determine whether other evidence had been tainted by this questionable surveillance.

Not only was there a question about the legality under the Fourth Amendment, but there were unanswered questions about how many completely irrelevant conversations the FBI’s bugs might have picked up — like privileged discussions between lawyers and clients, both of whom are often at courthouses simultaneously.

Apparently, the FBI thought it was going to get away with this, most likely by declaring anything that happens in public to be completely stripped of privacy expectations. The surreptitious recordings in San Mateo didn’t go nearly as smoothly as planned and now evidence has been produced showing the FBI targeted more than one courthouse during its bid-rigging investigation. (via Nate Cardozo)

At the Rene C. Davidson Courthouse in Oakland, the FBI planted hidden microphones inside light fixtures on the courthouse’s exterior steps to capture the conversations of people attending the foreclosure auctions. Cameras and microphones were installed in parked Alameda County vehicles next to the courthouse. The FBI even hid a microphone in the AC Transit bus stop on Fallon Street, and dropped a bugged backpack next to a statue inside the courthouse, according to a letter sent by US Justice Department attorney Kate Patchen to Marr’s attorneys on March 15. The surveillance was ongoing from March 2010 to January 2011.

And:

In Martinez, the FBI planted microphones in bushes, at a bus stop, on a pole, and inside parked and roving vehicles near the auction site.

Three courthouses. At least a dozen microphones. Hundreds of hours of recordings. And for what?

Tough to say. Multiple prosecutions of suspected bid-riggers are ongoing, but the investigative groundwork is failing to pass inspection. Once again, prosecutors are promising not to use the questionable recordings in court, but they’re far less likely to drop any evidence springing from those captured conversations.

In addition, defendants’ lawyers in the San Mateo County case are going so far as to claim the FBI committed felonies by recording conversations, as California is a two-party consent state. They might have to settle for some suppressed evidence though, as the state law has a fairly broad “public area” exception, which would cover courthouse steps and bus stops. But that interpretation of the state’s wiretap law exceptions may be subject to the government’s interpretation of public spaces from its 1967 Katz decision, which would grant hushed conversations in public an expectation of privacy.

The FBI — through its actions — is repeatedly demonstrating it cares little for the rules that govern its investigations and intelligence gathering. It only cares when it gets caught. This is its culture, something that traces back — with only minimal interruption — to its inception.

Filed Under: california, courthouses, expectation of privacy, fbi, recordings, surveillance, warrants