Judge Wants To Know More About FBI's Secret Recordings Of Conversations Near Courthouse Steps

from the privacy-in-public-spaces-revisited dept

Thu, Feb 25th 2016 2:47pm — Tim Cushing

Last November, lawyers defending five real estate investors against auction price-rigging allegations discovered the FBI had planted bugs to capture conversations during real estate auctions on the San Mateo (CA) Courthouse steps.

The lawyers questioned whether these surreptitious recordings violated wiretap laws, despite them taking place in a public area. As they noted, investors often huddled away from the steps to discuss bidding strategies in "hushed tones" in order to prevent competitors from overhearing them. According to these lawyers, the "hushed tones" were not unlike the closing of a phone booth door -- a key element in the Supreme Court's 1967 Katz decision, which found an expectation of privacy could be found in public areas, provided the person being targeted by recording devices performed certain actions.

Here, the Government targeted conversations that an informant and an undercover agent with full access to the public place were apparently unable to overhear. The evidence will show that Defendants often took affirmative steps to create a zone of privacy for their communications, such as moving away from others, standing close together, covering their mouths, and speaking in low volumes.

Now, the judge presiding over the case has a few questions of his own. (non-reg/paywall link)

On Thursday at a hearing before U.S. District Judge Charles Breyer, prosecutors and defense lawyers clashed over whether the tactic crossed a constitutional line.

Government lawyers, who used the microphones to investigate a federal bid-rigging case, contend that individuals picked up on the recordings were speaking in a public place and thus had no reasonable expectation of privacy. Defense lawyers insist that the surveillance, conducted without judicial approval, amounted to unlawful government eavesdropping and want Breyer to suppress all evidence derived from the devices.

Although Breyer held off on ruling, he expressed at least gut-level discomfort with the notion of government agents listening at the courthouse door.

"Let's say I was out of that courthouse that day, I used the staff entrance and I turned my law clerk," the judge said. "I wouldn't know [about that recording], would I, unless the government turned it over?"

The government must have its own doubts about the legitimacy of the recordings, despite arguing that there's no expectation of privacy in public places. The FBI collected more than 200 hours of recordings during its price-fixing investigation, and the government has stated it won't be trying to enter any of it into evidence. In fact, it would like the whole thing to just go away and has asked Judge Breyer to declare the defense's motion moot.

Judge Breyer hasn't been swayed by the prosecution's offer to sweep its possibly illicit bugs under the rug.

"I have to be satisfied that there's no taint from the recordings on the rest of the evidence in the case," Breyer said. "The answer is, I'm not satisfied."

Hopefully, Breyer will continue to dig into this. The government's assertions about public places and their lack of privacy may be correct, but efforts made by those recorded to keep their conversations from being overheard by others makes it clear members of the public will try to carve out privacy where none is expected from a legal standpoint. This is an issue that needs to be examined further in light of the Katz decision.

On top of that, the FBI's handling of the recordings was lackadaisical at best, and shady at worst.

[FBI agent] Wynar said that most times he manually turned the devices on about a half-hour prior to the auctions and turned them off afterward. He said that he didn't remember any instances of the devices recording attorney-client conversations or the discussions of employees entering and exiting the building.

All well and good, but without a third party examining the recordings, it's a little tough to take someone at their word when they're trying to preserve both a surreptitious recording method and submitted evidence.

The defense team has already poked holes in the agent's selective memory, pointing out a 14-minute recording between two courthouse employees that contained a very personal discussion about money, lingerie and a third party's "lack of intelligence" was captured along with more relevant conversations. The agent stated he "did not remember" listening to this conversation.

And it's not just the incidental recordings. It's also the handling. According to his own testimony, it appears the FBI agent tried to obscure the origin of these recordings.

Later under questioning from Jacobs, Wynar conceded he hadn't written up reports for some recordings and that none of his reports noted that the recordings were "nonconsensual," or made by some means other than planting a microphone on the cooperating witness or undercover agent.

This likely explains why the recordings the FBI thought were important enough to collect are now in the process of being discarded by prosecutors before they can cause any more damage to their case.

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, san mateo, secret recordings

22 Comments

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

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 25 Feb 2016 @ 2:56pm

FBI: "We can't because terrorism!"
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2016 @ 3:10pm

FBI: We spy on everyone, so therefore nobody has a reasonable expectations of privacy anywhere!
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2016 @ 3:21pm

Re:
Uhh.. can?
[ link to this | view in thread ]
David, 25 Feb 2016 @ 3:59pm

Re: Re:
Actually, "Yes, we can't!" [sic!] is as good a summary of Obama's presidency as I ever saw.
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2016 @ 4:03pm

A surveillance police state before your eyes for your personal inspection is now on display in this article. It's no longer a maybe but is in plain sight to be seen.

No need of oversight, no need of judicial approval, no need to declare where the evidence came from. There seems to be little difference here between the acronyms of FBI and KGB.
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2016 @ 4:13pm

I'm concerned how Law Enforcement would run with a ruling that there's a reasonable expectation of privacy against recordings if they're trying really hard not to be recorded.
[ link to this | view in thread ]
Anonymous Anonymous Coward, 25 Feb 2016 @ 4:33pm

Re:
I think they may find it difficult to conduct investigations from a phone booth with the door closed (unless the crime were in there, then why close the door?) or other contretemps necessary to 'create' privacy. Also, as apposed to being private citizens they are public employees working in public, which might be argued eliminates such contretemps.

I do, however, see your point and hope that that argument gets shut down quickly. For that matter the nine wise (eight for now) should certify a case and declare recording public employees in public to be free speech and stopping it a First Amendment violation open to civil and criminal action.
[ link to this | view in thread ]
PRMan, 25 Feb 2016 @ 5:18pm

Re:
The KGB would target suspicious people. Not just record everyone in front of the courthouse.
[ link to this | view in thread ]
PRMan, 25 Feb 2016 @ 5:19pm

Re:
I don't know. Get warrants?
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2016 @ 10:16pm

No expectation to privacy unless you are a cop or government employee.
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2016 @ 10:17pm

Re: Re:
They targeted people they did not like, for lifestyle choices, political choices or even just people they knew and didn't like. In a tyranny or police state even if you do nothing wrong you can still be targeted for no lawful reason.

The criminals run things when it gets to that point.
[ link to this | view in thread ]
Peter (profile), 25 Feb 2016 @ 11:09pm

Strange how the of "expectation of privacy" changes its meaning to the opposite when government agents are recorders rather than the recordees ...
[ link to this | view in thread ]
nasch (profile), 26 Feb 2016 @ 8:05am

Re: Re:
I don't know. Get warrants?

As an absolute last resort maybe.
[ link to this | view in thread ]
nasch (profile), 26 Feb 2016 @ 8:07am

The FBI collected more than 200 hours of recordings during its price-fixing investigation, and the government has stated it won't be trying to enter any of it into evidence.

No your honor, we didn't use these recordings to figure out who to investigate next, for what, and how. Honest. Trust us. Come on, would a federal agency lie to a court?
[ link to this | view in thread ]
John Fenderson (profile), 26 Feb 2016 @ 8:17am

Re: Re: Re:
Yes, as PRMan said, "suspicious people". When you get to decide what counts as "suspicious", it's generally going to boil down to "people you don't like".
[ link to this | view in thread ]
Anonymous Coward, 26 Feb 2016 @ 9:16am

This seems to be getting common
This seems to be getting commonplace. This, Hemisphere, Stingray... All projects used without judicial oversight, all projects that information from has (by policy) been obscured from the court. In particular from the defence. Do we not have a right to face our accuser? This is part of it, and law enforcement needs slapped down by judges over this policy of obfuscation.
[ link to this | view in thread ]
Just Passing Through (papers please), 26 Feb 2016 @ 10:03am

Re: Acronym
Federal Bunch of Idiots.

Lawbreakers since the days of Hoover.

They create more crime and terror than they prevent.

Even a succession of politicos are afraid to risk the wrath of their self-assumed so-called authority. They now claim reference to a Constitution and rule of law FOR ALL is suspect or harassment and/or murder (Ruby Ridge anyone?).
[ link to this | view in thread ]
Anonymous Coward, 26 Feb 2016 @ 10:16am

This is the same FBI that wants a "one time" exception to try to brute force hack a iPhone.
[ link to this | view in thread ]
tqk (profile), 26 Feb 2016 @ 1:52pm

I'm not sure this is wrong.
You know how we all complain when cops freak out about cell phones videoing their actions in public?

Well, on the court house steps is public, and they're surveilling a public place in order to police the activity.

That "phone booth is private" decision is a gentlemens' agreement. Out here, we have directional mics and signal processing and bugs. You need privacy, go find a phone booth.
[ link to this | view in thread ]
Anonymous Coward, 26 Feb 2016 @ 2:36pm

Re:
they act like royalty above the laws they enforce on their indentured serfs
[ link to this | view in thread ]
Anonymous Coward, 26 Feb 2016 @ 2:38pm

Re: Re: Re: Re:
sounded like he was arguing against the comparison between the FBI and KGB. When in my opinion they act exactly alike.
[ link to this | view in thread ]
KidOmaha (profile), 27 Feb 2016 @ 12:29am

Re: I'm not sure this is wrong.
I think what the judge here is saying is that those involved in these conversations are trying to create a "virtual booth" by speaking in hushed tones, covering their mouths and moving away from others when they speak etc.
[ link to this | view in thread ]