Court Says Bugs The FBI Planted Around California Courthouses Did Not Violate Anyone's Expectation Of Privacy

from the time-to-start-passing-self-destructing-notes,-it-appears dept

Wed, Jul 27th 2016 2:36pm — Tim Cushing

The FBI's surreptitious recording devices -- scattered around three California courthouses -- raised a few eyebrows when the recordings were submitted as evidence. The defense lawyers wondered whether the devices violated the conversants' expectation of privacy, admittedly a high bar to reach considering their location near the courthouse steps -- by every definition a public area.

The defense team cited a Supreme Court decision involving phone booths, hoping to equate their clients' "hushed tones" with closing a phone booth door. Small steps like these -- used by everyone -- are attempts to create privacy in public areas, but courts are very hesitant to join defendants in erecting privacy expectations in public places.

A judge presiding over one the cases (involving alleged bid rigging for auctioned property) thought there might be something a bit off about the location of the FBI's 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?"

Judge Phyllis Hamilton, in her denial [PDF] of a motion to suppress the recordings, is similarly hesitant to condone the FBI's eavesdropping, but can't find enough of a reasonable expectation of privacy to prevent the recordings from being admitted as evidence. (via FourthAmendment.com)

First off, the conversations captured during these particular recordings showed the defendants made very little effort to speak in the "hushed tones" suggested by their defense team.

The recordings at issue intercepted defendants’ communications that were made at a normal conversational volume level, not in hushed or whispering tones. Many conversations were conducted by participants in loud voices, sometimes laughing out loud. In particular, the audio recording of a conversation among a group of about eight to ten men on August 17, 2010, at the Fallon Street bus stop, which was played for the grand jury during the indictment presentation in United States v. Florida, et al., CR 14- 582 PJH, reflects that the participants had to project their voices and yell to be heard over the sound of a nearby jackhammer…

In the video footage accompanying many of the audio recordings, including the video clip that was played for Witness 1 and the grand jury, the participants are not seen appearing to whisper or covering their mouths when having audible conversations that can be heard on the recording.

The judge goes on to point out that these conversations could be overheard by many passersby, including the steady traffic of law enforcement personnel to and from the building. And when efforts were made to speak in quieter tones, the FBI's microphones were apparently unable to obtain audible recordings of these discussions.

However, the judge agrees that the location of the devices is somewhat questionable.

While the court agrees with defendants that it is at the very least unsettling that the government would plant listening devices on the courthouse steps given the personal nature of many of the conversations in which people exiting the courthouse might be engaged, it is equally unrealistic for anyone to believe that open public behavior including conversations can be private given that there are video cameras on many street corners, storefronts and front porches, and in the hand of nearly every person who owns a smart phone.

Given the facts of this case -- that the defendants apparently made little to no effort to prevent their conversations from being overhead -- this conclusion is likely the right one. But it goes on to suggest that no private conversation held in a public place can be considered to have an expectation of privacy, no matter what steps conversants might take to prevent being overheard. If even a slim possibility exists that someone other than those engaged in the conversation might be able to hear it, then there is no expectation of privacy.

Marr-FBI-Recordings (PDF)Marr-FBI-Recordings (Text)

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Filed Under: bugs, court steps, fbi, spying, surveillance

31 Comments

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neost (profile), 27 Jul 2016 @ 2:42pm

Time to start carrying the cone of silence in public if you plan on having a conversation of a personal nature.
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TexasAndroid (profile), 27 Jul 2016 @ 2:46pm

Re:
Aww. Beat me to it. :)

OTOH, the CoS was classically too effective. :)
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BentFranklin (profile), 27 Jul 2016 @ 2:48pm

Ubiquitous hacking -> no expectation of computer security
Ubiquitous surveillance -> no expectation of privacy

What's next?
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That One Guy (profile), 27 Jul 2016 @ 2:52pm

Re:
Ubiquitous violations of rights anywhere within 100 miles of the border -> No expectation of any rights within that zone.

Ah right, you said 'next', not additionally. Eh, I'm sure they'll find some way to justify screwing over the public in a new and exciting way by claiming that they've been doing it already, so no harm done continuing.
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Anonymous Coward, 27 Jul 2016 @ 3:00pm

This means its legal to do the same
Since they have rules that people in public have no expectation of privacy, I guess its time to start planting 3rd party bugs literally everywhere. We should be able to capture all kinds of juicy information and sell it to interested parties.
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Anonymous Coward, 27 Jul 2016 @ 3:04pm

Interesting finding in a 2-party consent state
So conversations in public places that are not spoken in a whisper are not private conversations. Ergo, I do not need the consent of a police officer or other public official to record their conversations (unless they're in a private place or they're whispering).
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Anonymous Coward, 27 Jul 2016 @ 3:16pm

An expectation of privacy is not the same thing as a right to privacy.
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Padpaw (profile), 27 Jul 2016 @ 3:20pm

what laws?
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Anonymous Coward, 27 Jul 2016 @ 3:30pm

It seems inevitable that a greater percentage of public things will be recorded (license plates, faces, conversations, etc). The important thing to realize is that the power gained from such surveillance will likely favor those with the means to deploy surveillance technology (corporations and governments).

There is a reality in which there is a wiki-style publicly accessible and publicly contributed database, however that seems less likely in the short-term due to the motivations and costs involved.
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John Fenderson (profile), 27 Jul 2016 @ 3:54pm

Re:
Ubiquitous tech that sees through walls -> no expectation of privacy in your home

https://www.google.com/#q=see+through+wall+technology
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John Fenderson (profile), 27 Jul 2016 @ 3:56pm

Re: Interesting finding in a 2-party consent state
That's a really excellent point.
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John Fenderson (profile), 27 Jul 2016 @ 3:57pm

Re:
True, but it's a reasonable approximation when the courts say that your right to privacy is dependent on the stupid "reasonable expectation" standard.
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Rapnel (profile), 27 Jul 2016 @ 3:58pm

Re: This means its legal to do the same
Is it just me or did this decision just open up a huge field of data to mine?
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John Fenderson (profile), 27 Jul 2016 @ 3:59pm

Re:
But this can cut both ways. Excellent surveillance tech is dirt cheap. For just a couple of thousand dollars, you can single-handedly engage in a very comprehensive surveillance program yourself.
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Anonymous Coward, 27 Jul 2016 @ 4:12pm

What about the forgotten?
Can I get free mental health treatment and an award for emotional distress when I find that nobody has recorded me. Please? I will claim trauma from learning that I am too boring and that nobody thinks I am important. The shunning is emotionally debilitating. I can already feel the sadness, I really can. Is there a lawyer in the house?
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Anonymous Coward, 27 Jul 2016 @ 4:12pm

Re: Re: Interesting finding in a 2-party consent state

… state…
a really excellent point
From the heading of the court document…
United States District Court
United States of America, Plaintiff v … Defendants.
Federal law.

See the supremacy clause of Article VI.
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John Fenderson (profile), 27 Jul 2016 @ 4:24pm

Re: What about the forgotten?
You say you're too boring and unimportant. I say that's exactly the image that the best spies in the world strive to achieve.

Therefore, you must be a spy. How exciting!
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Beefcake (profile), 27 Jul 2016 @ 5:20pm

"Public" is the key
Shouldn't these recordings then (at least theoretically) be subject to FOIA and defense team discovery requests?
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Anonymous Coward, 27 Jul 2016 @ 5:23pm

Re: "Public" is the key
Of course they should, but they are just going to ask a couple random agents if they know of any results and then return a no documents found response.
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Anonymous Coward, 27 Jul 2016 @ 5:59pm

Re: This means its legal to do the same
How about the parking lot of your local cop shop?
Let's do one better - let's start a video recording of all the comings and goings.

I'm sure they won't mind.
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Whatever (profile), 27 Jul 2016 @ 8:12pm

Judge gets it right... (and this post censored for a while too!)
The judge got this exactly right. A public place is a public place, plain and simple. The steps (and surrounding area) of a court house is perhaps one of the most public places of all. You don't have to think very hard to realize that it is an area likely filled with law enforcement types, many of them in plain clothes for court appearances and such.

Simple: There is no true expectation of privacy in the public commons. Worrying about "hushed tones" and whatnot is a total misdirection, taking away from the clearly obvious fact that a public place is, well, PUBLIC.

DUH! Judge wins!
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Shilling, 27 Jul 2016 @ 8:18pm

So if I understand it correctly a civilian needs a consent from the other party when it involves people living in the state but would you plant bugs around a federal building located in a 2 party consent state that would be perfectly legal as the location is governed by federal law? Or does the government apply the laws that suits them in a particular situation?
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Anonymous Coward, 27 Jul 2016 @ 9:37pm

Re:
Or does the government apply the laws that suits them in a particular situation?
You need to understand the particular situation that the court and the parties are in right now.

From the first sentence of the district court's opinion:
Before the court is defendants’ motion to suppress warrantless audio recordings (doc. no. 68).
So, the parties are in federal court, the federal government (“United States”) is identified as plaintiff, and prior to the trial of the main issue, the defendants are asking the court to throw out (“suppress”) some of the evidence against them.

From lines 24-27 on p.1:
Defendants also seek suppression of evidence tainted by the unlawful recordings. Accordingly, the government’s concession that it will not use the courthouse recordings in its case-in-chief does not moot the motion to suppress the recordings.
So, the defendants also want some other evidence tossed, 'cause they say the government couldn't ever have gotten that other evidence if the government hadn't first made the audio recordings.

Anyhow, in federal court here , it really just doesn't matter that the FBI may or may not have done something which might or might not be contrary to California law. Instead, the defendants argue that the federal government should not be allowed to introduce evidence acquired contrary to the command of the Fourth Amendment to the United States Constitution.
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Bergman (profile), 28 Jul 2016 @ 5:42am

Re: Re:
Silly secret agents, that's what sign language is for.
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Bergman (profile), 28 Jul 2016 @ 5:44am

Re: This means its legal to do the same
I wonder how the FBI would react to finding that public areas around their offices have been bugged?
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Anonymous Coward, 28 Jul 2016 @ 7:14am

A judge [...] thought there might be something a bit off about the location of the FBI's devices.

But location is metadata, so really, it is alright. Right?
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John Fenderson (profile), 28 Jul 2016 @ 9:04am

Re: Re: Re:
That's even worse. Video surveillance that doesn't include sound doesn't even have the amount of legal restriction that audio-only surveillance does.
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That One Guy (profile), 28 Jul 2016 @ 11:10am

Re: Re: This means its legal to do the same
A 'guided tour' of the facility I imagine, for a nice little 'chat' regarding your actions.

The FBI, much like many other government agents/agencies operates under a 'One rule for me, another for thee' mindset, meaning just because they've been given the clear to bug public areas to listen in to conversations of members of the public it doesn't mean they would accept anyone doing the same to them.
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Padpaw (profile), 28 Jul 2016 @ 12:10pm

Re: Re: This means its legal to do the same
only if you have the government's backing as you can bet they would throw the book at you if you did the exact same thing they did.
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Padpaw (profile), 28 Jul 2016 @ 12:19pm

Re:
they seem to pick and choose what rules to enforce and what rules to ignore.
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Anonymous Coward, 31 Jul 2016 @ 6:44am

They'd be singing a different tune if the public started boldly planting bugs around THEM.

And as far as im concerned by them already violating that right, the public has every right too

The door swings both ways
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