Judge Tosses 200 Hours Of Recordings From FBI's Courthouse Bugs

from the both-sides-of-the-judicial-coin,-all-in-one-federal-district dept

The fallout from the FBI's surreptitious bugging of county courthouses in California has coalesced into two motions to suppress -- with two very different outcomes. What makes this even more interesting is that both decisions were issued in the same judicial district.

Judge Phyllis Hamilton denied a motion to suppress last week. While she had concerns about the location of the bugs used in the FBI's investigation of property auction price fixing, she reached the conclusion that the recording of conversations that occurred in a public area did not violate the defendants' expectation of privacy. The decision hinted Judge Hamilton would be hard pressed to find any conversation in public -- no matter what attempts were made to prevent bystanders from listening in -- worthy of an expectation of privacy.

Judge Charles Breyer, however, has reached the opposite conclusion. Breyer dug deeper into the location of the recording devices and questioned whether the FBI was crossing a line by placing them in areas where privileged conversations might occur.

In a decision [PDF] handed down on August 1, Judge Breyer has tossed 200 hours of recordings made by the FBI on the grounds that the eavesdropping violated the defendants' expectation of privacy. (via Joe Mullin at Ars Technica)

The volume of oral communications is relevant to whether the speaker has a reasonable expectation of privacy, as is the proximity or potential of other individuals to overhear the conversation. The key inquiry here, however, “is not whether it is conceivable that someone could eavesdrop on a conversation but whether it is reasonable to expect privacy.” The evidentiary record here confirms that Defendants did not speak at a volume loud enough for an undercover agent or an FBI cooperator to overhear them. Feb. 11 Tr. at 155:7–12 (reflecting that the lead FBI agent testified that “the key observation made in the early part of the case” was that the cooperator and undercover agent “could not hear” Defendants’ conversations). [...] The Court thus finds no evidence in the record establishing that bystanders overheard the conversations surreptitiously recorded on the twenty-eight days in question; it does, however, find ample evidence in the record that bystanders could not overhear those conversations. See, e.g., Feb. 11 Tr. at 155:7–12. This factor thus supports a reasonable expectation of privacy.

Unlike Judge Hamilton's case, the defendants took active steps to avoid being overheard -- something that should have been expected, considering the presence of competitors hoping to acquire foreclosed property as cheaply as possible. Not only that, but the FBI testified that its undercover informant somehow managed to get booted from the inside circle, meaning that the government's own man had some idea bidders weren't loudly proclaiming their bidding strategies to all and sundry.

Away goes 200 hours of recordings -- a lot of which apparently captured stuff the FBI didn't care about. Along with it might go the rest of the evidence, if the court comes to the conclusion it's been tainted by the government's bugs.

The court concludes that zero expectation of privacy Judge Hamilton hinted at in her decision may be the new normal in the future, but we aren't there quite yet.

With continuing advances in technology, private conversations may become anachronistic rituals reducing intimate encounters to silent exchanges of notes. But that day has not arrived. Until it does, our Fourth Amendment protections should be defined by traditional circumstances. The Court concludes that Defendants had (1) a subjective expectation of privacy in the conversations recorded by the stationary microphones at the San Mateo County Courthouse, and (2) that expectation was objectively reasonable.

Whether or not efforts to carve out privacy expectations in public spaces will be successful appears to come down to the judge presiding over the case. Hamilton's decision made some scary assumptions about communicating in public areas, but she also had testimony and recordings showing the defendants she dealt with made less effort to keep their conversations secret than those in front of Judge Breyer. This may have been the key difference between the two cases, but Hamilton would have raised fewer privacy concerns if she hadn't expanded her thought process to declare that the privacy-less future Judge Breyer only hinted at has already arrived.

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Filed Under: california, courthouse, east bay, fbi, recordings