Your Word Against Ours: How The FBI's 'No Electronic Recording' Policy Rigs The Game... And Destroys Its Credibility

from the everybody-knows-the-dice-are-loaded dept

Mon, May 20th 2013 8:53am — Tim Cushing

Considering the FBI's unseemly interest in recording phone calls and inserting itself into all sorts of electronic conversations (all without asking permission first), it's incredibly strange that it refuses to use one of the most basic electronic devices available: a voice recorder. In fact, as Harvey Silverglate's op-ed for the Boston Globe points out, it's forbidden to use any sort of recording device when interviewing suspects.

FBI agents always interview in pairs. One agent asks the questions, while the other writes up what is called a “form 302 report” based on his notes. The 302 report, which the interviewee does not normally see, becomes the official record of the exchange; any interviewee who contests its accuracy risks prosecution for lying to a federal official, a felony. And here is the key problem that throws the accuracy of all such statements and reports into doubt: FBI agents almost never electronically record their interrogations; to do so would be against written policy.

Without a recording to compare the transcript to, we are expected to trust the FBI's version of the interrogation. If we can't trust it, we are left to draw one of the following conclusions.

1. The transcript is completely false.
2. The transcript is heavily editorialized.
3. The transcript interprets certain statements, but is otherwise accurate.
4. The transcript is completely accurate.

Of all of these choices, number 4 seem least likely. In fact, one wonders why the FBI bothers interviewing anyone when it could simply put two agents in a room and allow them to bang out a confession on behalf of the accused.

If a suspect claims the transcription is erroneous, it's his word against theirs. His words, of course, disappeared into the ether as soon as they were spoken. The FBI's version lives on, printed on paper.

We don't need to ask "why" this is a problem. There are rhetorical questions and then there are stupid questions, the sort helpful teachers and guidance counselors continue to pretend don't exist. A better question is, "Why hasn't this been changed?" Silverglate notes this policy is an updated version of a 1990's policy, crafted in 2006, long long long long after recording devices were ubiquitous. The excuse that this policy was "logistically necessary" because of technological limitations was ridiculous in 1990, much less 16 years later.

This is a problem. More specifically, this is Robel Phillipos' problem.

Phillipos is a 19-year-old Cambridge resident, former UMass Dartmouth student, and friend of alleged Marathon bomber Dzhokhar Tsarnaev. He faces charges of making materially false statements during a series of interviews with FBI agents. If convicted, he could get up to eight years in federal prison and a $250,000 fine.

How do we know he did this? Because the FBI says he did. It has the "paperwork" to "prove" it. As was pointed out above, simply questioning the transcript opens the questioner up for charges of "making false statements." Phillipos could be completely innocent but that means nothing when the accusers are writing the narrative. Scott Greenfield shows just how easily an innocent answer could turn into damning "evidence" in the hands of an FBI interrogation team.

Q: We found files on your computer showing that you went to a website with instructions on how to make a bomb, so we know you did it. When did you first go to the bomb website?

A: I surf the web constantly and go through, like, a million pages. I have no idea what pages I searched or when. How could I possibly know?

Notated in 302: D cannot recall when he first went to bomb website. Went "constantly."

Slick, isn't it? And when someone points out a misquote, the accusation is turned on them just as easily. "Are you lying now or were you lying earlier?"

This is nasty business but it gets even nastier. Beyond the hilarious claim that tech simply hasn't advanced enough since 1990 to allow reliable voice recording, there's a much darker rationale guiding this ridiculous (and dangerous) policy.

The more honest — and more terrifying — justification for non-recording given in the memo reads as follows: “. . . perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants. Initial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of the evidence against him may appear to be unfair deceit.” Translated from bureaucratese: When viewed in the light of day, recorded witness statements could appear to a reasonable jury of laypersons to have been coercively or misleadingly obtained.

Sometimes the "reasonable jury" would be right -- the statement has been "coercively or misleadingly obtained." Other times, it may not be as clear-cut. But in a day and age where recording interviews and interrogations is the expectation, the FBI continues to play by its own (convenient) rules. And if the person being interrogated doesn't like it, he can expect additional charges to brought. This puts the alleged criminal in the unenviable position of having "anything he says" twisted, rewritten and heavily paraphrased before being used against him.

Silverglate cautions to withhold judgement on Phillipos until all the facts are in. But as long as the FBI continues to use this "recording" technique, don't grant its statements any credibility. They have none.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: fbi, interviews, recording

45 Comments

If you liked this post, you may also be interested in...

Reader Comments

The First Word

“

Miranda??

You have the right to remain silent. Anything you do or say may falsified, editorialized, or misinterpreted.

—RyanNerd

”

Subscribe: RSS

View by: Time | Thread

ChurchHatesTucker (profile), 20 May 2013 @ 9:09am

No interviews
Even odder, you can apparently avoid an interview with FBI agents altogether if you're savvy enough to insist on doing it at your lawyer's office with a recording device.

Harvey Sivlergate breaks it down.
[ link to this | view in thread ]
Richard (profile), 20 May 2013 @ 9:21am

Simple Answer
Don't say anything.

http://www.youtube.com/watch?v=6wXkI4t7nuc
[ link to this | view in thread ]
Ben (profile), 20 May 2013 @ 9:26am

Never talk to Police
I think the fifth amendment is underused (Prenda not withstanding): Youtube presentation by a law professor
Never talk to police, but if you have to, never do so without a lawyer (representing you!) present.
[ link to this | view in thread ]
Lord BInky, 20 May 2013 @ 9:27am

The FBI is less likely to have a hard time convincing a jury that it is ok for them to lie as part of a legitimate interrogation than if they try to convince a jury they are not lying outside of the interrogation.
[ link to this | view in thread ]
Anonymous Coward, 20 May 2013 @ 9:27am

Popehat has very good advice for these kinds of situations: Shut up. Just. Shut. Up.

http://www.popehat.com/tag/shut-up/

And I happen to agree. Unless you absolutely, positively have to, DO. NOT. SPEAK. TO. THE. COPS. And when you do, bring a lawyer.
[ link to this | view in thread ]
Mr. Smarta** (profile), 20 May 2013 @ 9:29am

Quick steps
1) Recite to yourself aloud your Miranda Rights (if they haven't already read them to you).
2) Request a lawyer during questioning.
3) Do not say another word until the lawyer arrives; no matter how much they bully you, try to be your 'friend' and want to 'help' you, or beat you with a rubber hose and/or phone book.
[ link to this | view in thread ]
ChurchHatesTucker (profile), 20 May 2013 @ 9:40am

Re: No interviews
My link seems to be borked. Should be:

http://www.youtube.com/watch?v=jgDsbjAYXcQ
[ link to this | view in thread ]
Anonymous Coward, 20 May 2013 @ 9:44am

Illinois state had an unusually high number (compared to other states) of people convicted murder later being freed by DNA proving their innocence when the technology was invented and put into common use.

Know what their state legislature did to rectify the problem? They required ALL police interrogations be recorded, because of how useful of such videos have proven to be at both getting incriminating evidence against the real criminal, and at proving innocence of the falsely accused (including those bullied into false confessions by police).

The Illinois police even supported the changes, the FBI could learn something from them.
[ link to this | view in thread ]
Anonymous Coward, 20 May 2013 @ 9:44am

Re: Simple Answer
This is one of the best videos I've ever seen.

Never say a word to any law enforcement official. Ever. It can come back to bite you in ways you could never imagine. You have a right to remain silent. Exercise it.
[ link to this | view in thread ]
RyanNerd (profile), 20 May 2013 @ 9:48am

Miranda??
You have the right to remain silent. Anything you do or say may falsified, editorialized, or misinterpreted.
[ link to this | view in thread ]
Jesse (profile), 20 May 2013 @ 9:54am

Re: No interviews
Don't talk to police without a [good] lawyer.

Legal scholars continued to be baffled by the sheer number of people who willingly implicate themselves.
[ link to this | view in thread ]
AbbaDabba, 20 May 2013 @ 9:57am

well golly gee
Isn't this EXACTLY why you don't answer questions without your lawyer being present? Seems to me that would put an advocate for the questionee as a witness.
[ link to this | view in thread ]
Ophelia Millais (profile), 20 May 2013 @ 9:58am

I'm just commenting in order to be the first person to spell Silverglate correctly.
[ link to this | view in thread ]
Anonymous Coward, 20 May 2013 @ 10:02am

Witch Hunters
simply questioning the transcript opens the questioner up for charges of "making false statements."

That is a nice offence, you are guilty of you agree with our version, and guilty if you don't.
[ link to this | view in thread ]
Shon Gale (profile), 20 May 2013 @ 10:14am

Who ever said you could TRUST POLICE! They lie for a living, right along with Lawyers and Politicians. Never trust any of them, they will lie to you.
[ link to this | view in thread ]
JoeCool (profile), 20 May 2013 @ 10:15am

Interpretation
If you (interrogators) think an audio recording might be misinterpreted, perhaps you need video to go with it. If you think the video might be misinterpreted, perhaps it's YOU that is the problem, not the recordings.
[ link to this | view in thread ]
slick8086, 20 May 2013 @ 10:47am

Lop-sided
It is a federal offense for you to lie to them, but they are allowed to lie to you during an interview.
[ link to this | view in thread ]
DannyB (profile), 20 May 2013 @ 10:47am

The article headline?
Was the article headline intended to imply that the FIB actually has credibility?
[ link to this | view in thread ]
Spaceman Spiff (profile), 20 May 2013 @ 10:51am

Never leave home without one!
Never go into a police, FBI, or other "law enforcement" interview without your attorney present. Always assert your 5th Amendment rights and don't say ANYTHING unless your attorney tells you to, and don't even then if you can help it. These asshats can be incredibly intimidating, and infer that if you don't talk to them you will spend a gazillion years in stir. The thing is, is that they will take everything you say out of context, add their own spin, and then get you convicted and put away for a gazillion years for something you DIDN'T actually say! So, being questioned by law enforcement? SAY NOTHING! ASK FOR AN ATTORNEY (your own if you have one)! REFUSE TO ANSWER ANY QUESTIONS!
[ link to this | view in thread ]
Jay (profile), 20 May 2013 @ 11:18am

What can stop it?
Nothing can stop the American inquisition!
[ link to this | view in thread ]
Paul, 20 May 2013 @ 11:44am

Re: Simple Answer
You have the right to remain silent, Do you have the ability??
[ link to this | view in thread ]
Anonymous Coward, 20 May 2013 @ 12:12pm

Asserting the Fifth
�Argument recap: Reading silence�s meaning� by Lyle Denniston, SCOTUSblog, April 17th, 2013

�.�.�. �Where is the line?� Justice Stephen G. Breyer kept asking, and when he was offered one by Genovevo Salinas�s attorney, it was not clear that there would be a majority to embrace it.�.�.�.

No. This is not satire.

This is Salinas v Texas.

Issue: Whether or under what circumstances the Fifth Amendment�s Self-Incrimination Clause protects a defendant�s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.

Argued April 17, 2013. Opinion pending.
[ link to this | view in thread ]
btr1701 (profile), 20 May 2013 @ 1:32pm

Recording
Key takeaway from this article: If the FBI won't record its interviews with you, then you should record them yourself. If they object, decline to participate in the interview.
[ link to this | view in thread ]
Mr. Applegate, 20 May 2013 @ 2:08pm

Once again Government shows its...
Incompetence!

"The excuse that this policy was "logistically necessary" because of technological limitations was ridiculous in 1990, much less 16 years later. "
What the government can't figure out to do, Insurance companies, help desks and many others around the world figured out how to do about 30 years ago.

That's right, if you are in an accident the insurance company will want to take a RECORDED statement. Almost any help desk will record at least random calls and many record them all.

Also it is funny that they can't figure out the logisitcs to tape your interrogation, but they have no problems figuring out how to tap your phone, track your car, put of cell towers to process all your cell phone activity...

Just a bit selective I should think.
[ link to this | view in thread ]
Anonymous Coward, 20 May 2013 @ 2:17pm

i dont know why there is any problem of the FBI using recording devices at all. they can alter, omit and rearrange the taps to read exactly as they want. just as they can and probably do with the written words. either way, once a person has the FBI or any other law enforcement agencies hooks into them, there is no escape. they will be 'proved' guilty even if there is unequivocal evidence showing that person was on Mars at the time with 2 million witnesses. the sad thing is that justice and the law seems to have so little meaning in the USA now. i am waiting for the ducking stool to be brought back as a means of testing whether a person is telling the truth or not!!
[ link to this | view in thread ]
That Anonymous Coward (profile), 20 May 2013 @ 3:57pm

Why do we allow them to strip away our rights in the name of saving our rights?
It is very confusing, unless the endgame is just to make sure no regular citizens have any rights, then no need to waste time protecting them.
[ link to this | view in thread ]
Anonymous Coward, 20 May 2013 @ 5:40pm

"When was the last time that you beat your wife?"

"Never have beaten anyone and I'm not married."

Note: Suspect has become evasive and refuses to answer the direct questions that are asked.
[ link to this | view in thread ]
Anonymous Coward, 20 May 2013 @ 5:48pm

Re: Re: Simple Answer
Better yet. Play dumb - not in the ignorant sense of the word but rather, the unable to speak sense of the word.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

horse with no name, 20 May 2013 @ 6:38pm

What's wrong
Stories like this go a long way to explain what is wrong in society today: A lack of respect (in all directions) means that criminals tend to have more rights than the general public, and that it's the police and authorities are being treated as "guilty until proven innocent".

Claiming the system is stacked is crap, because plenty of guilty people go free every year, because of technicalities and exceptional circumstances. If the deck was stacked, those would have been "fixed" a long time ago.
[ link to this | view in thread ]
Sheogorath (profile), 21 May 2013 @ 12:31am

Oh, come on, FBI!
The UK police forces have been tape recording interviews since the 1980s. This in countries that, by reputation, are less technologically advanced than the US.
[ link to this | view in thread ]
Mr. Applegate, 21 May 2013 @ 5:30am

Re: What's wrong
"Claiming the system is stacked is crap, because plenty of guilty people go free every year, because of technicalities and exceptional circumstances. If the deck was stacked, those would have been "fixed" a long time ago."
Using your logic if the deck wasn't stacked no innocent people would ever be convicted, and that happens too.

The truth is there is absolutely zero reason not to video tape interviews. If the police have nothing to hide they wouldn't mind me taping them yet they get really upset when they are taped.

It is very odd that those in power abhor being taped themselves while at the same time telling us that we shouldn't mind being taped and otherwise surveilled if we have nothing to hide.

The truth of the matter is that we should not be taped by them and ALL of their actions should be recorded, they have the power to restrict my freedom.

Those with little power need littler surveillance or oversight, those with a lot of power need a great deal of oversight and surveillance.
[ link to this | view in thread ]
RyanNerd (profile), 21 May 2013 @ 6:07am

Re: Oh, come on, FBI!
Yes. I hear that in the UK they are still oogling over color TV.
[ link to this | view in thread ]
RyanNerd (profile), 21 May 2013 @ 6:14am

Re: Recording
They would just take your recording device from you as "evidence"
[ link to this | view in thread ]
Anonymous Coward, 21 May 2013 @ 7:33am

Re: Lop-sided
not quite. Barring Obstruction of Justice, (which is quite difficult to prove) a lie by the defendant is used to imply that they are lying about other things. The reason it is a federal matter is that the FBI normally only take on federal cases.
[ link to this | view in thread ]
Anonymous Coward, 21 May 2013 @ 7:37am

Re: Re: Recording
it actually doesn't matter if they do- any competent lawyer would file a motion for discovery for the recordings. Those recordings having been destroyed would raise eyebrows, to say the least. ( on two fronts: they are allegedly evidence, and they aren't the police's to destroy)
[ link to this | view in thread ]
art guerrilla (profile), 21 May 2013 @ 8:35am

Re: Re: Re: Recording
s-u-r-e it is...

now, would you mind telling *WHEN*/*WHERE* kops, persecutors (sic), or other -you know- officers of the court are ACTUALLY, ever prosecuted for 'lying' ? ? ?

(short answer: practically, relatively speaking, NO ONE, ever...)

now, tell me the times mere, puny citizens have been persecuted for mere lying of no consequence and put in the gaol ? ? ?

ALL THE FUCKING TIME...

yes, it IS lop-sided, at EVERY stage of The System; it is *MEANT* to be lop-sided, NOT as some sort of checks and balances, BUT AS A MEANS TO SUBJUGATE US 99%...

if you are poor and/or brown, The System will chew you up and shit you out, over NOTHING; if you are the annointed ones, you can loot the world's economy, commit war krimes, torture, illegally wiretap, collude, and essentially break any/all laws with impunity...

THAT is the upside-down world we live in now...
(because korporations are people, doncha know...)

REMEMBER: power NEVER devolves voluntarily, NEVER !

art guerrilla
aka ann archy
eof
[ link to this | view in thread ]
btr1701 (profile), 21 May 2013 @ 11:20am

Re: Re: Recording
> They would just take your recording device
> from you as "evidence"

Then decline to participate in the interview.
[ link to this | view in thread ]
RyanNerd (profile), 21 May 2013 @ 11:55am

Re: Re: Re: Recording
It would be a bit late to refuse to participate in the interview if at the end of the interview they took your recording device as "evidence"

Bottom line. When dealing with the FBI or the police. Shut up. Shut. Up. Just shut up...until your lawyer arrives.
[ link to this | view in thread ]
BearGriz72 (profile), 21 May 2013 @ 3:35pm

Re: Re: Re: Re: Recording
Gots to love the Popehat...
Shut Up, I Explained, Mostly Pointlessly
May 1, 2013 By Ken White. (Tags: Law, Law Practice)
"It's my best piece of advice � and the advice most consistently ignored. If you're dealing with the government, and you are in any doubt, why won't you just shut up?"
[ link to this | view in thread ]
Tex Arcana (profile), 21 May 2013 @ 7:44pm

Re: No interviews
Talk about rigging the game... Don't cross paths with the FBI, they'll just FIB(!) and convict you on a spurious "confession" that cannot be independently verified.

Kangaroo, meet court; court, meet miscarriage of justice.
[ link to this | view in thread ]
Anonymous Coward, 22 May 2013 @ 2:19am

Re:
> "When was the last time that you beat your wife?"

I beat her all the time. With Chess.
[ link to this | view in thread ]
btr1701 (profile), 22 May 2013 @ 9:19am

Re: Re: Re: Re: Recording
> It would be a bit late to refuse to participate
> in the interview if at the end of the interview
> they took your recording device as "evidence"

Then use a recorder that streams to the cloud.
[ link to this | view in thread ]
Matt Brown, 15 Oct 2013 @ 4:00am

Re: Re: Lop-sided
Um, what are you talking about? You're wrong, and in a really dangerous way.

Lying to a federal officer (not just law enforcement) even by mere denial is a federal crime punishable by up to five years in prison. Title 18, chapter 1001.
[ link to this | view in thread ]
DeltaDiggaDo, 12 Jan 2015 @ 10:33pm

Re: well golly gee
Isn't this EXACTLY why you don't answer questions without your lawyer being present?
The trouble is, how many of us "have a lawyer"? If I get grabbed on the street, I'm gonna have to ask for the yellow pages to find a lawyer. I haven't used a lawyer since... never, and I'm retired now. And I don't know if I can afford him.
[ link to this | view in thread ]
Anonymous Coward, 30 May 2015 @ 2:04am

The FBI don't want audio recordings because the sound of punching a suspect in the chest (in a way that won't leave bruises) would also be recorded.

They don't want video because they often have a 2nd or 3rd agent standing next to the 'suspect' making threatening gestures, standing over them with fists raised etc.....

Also video would show the bruising when the smaller punching is ineffective.
FBI standard policy after interviews is to take 'damaged' suspects into solitary confinement until the injuries have healed enough to not be visible anymore.
[ link to this | view in thread ]