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Defense Lawyers Claim FBI Illegally Bugged Outside Steps Of County Courthouse

We may get to see just how far the courts are willing to extend the expectation of privacy in public places

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Is there an expectation of privacy in public spaces? Generally speaking, there isn’t. But that doesn’t mean it doesn’t exist at all. Private conversations in public places are still afforded a limited expectation of privacy by the “Wiretap Act” — a law prompted by the widespread warrantless use of recording devices, along with the Supreme Court’s Katz decision, which found attaching a recording device to the outside of a public phone booth required the use of a warrant.

We may get to see just how far the courts are willing to extend the expectation of privacy in public places, thanks to the discovery of recording devices outside of a US courthouse. (h/t Declan McCullagh)

According to court papers filed Friday, federal agents placed secret recording devices in at least three locations around the entrance to the San Mateo County courthouse in Redwood City without first getting judicial approval.

The courthouse bugs were used in 2009 and 2010 to investigate bid-rigging at public foreclosure auctions. Their existence surfaced in a motion from defense lawyersfor a group of five real estate investors accused of colluding to deflate prices at the auctions, which were held on the courthouse steps.

The defense lawyers, led by Latham & Watkins partners Daniel Wall and Ashley Bauer, are asking U.S. District Judge Charles Breyer to suppress more than 200 hours of recorded conversations and all evidence gained from them. They maintain that their clients had a reasonable expectation of privacy when they gathered to speak in hushed voices away from other auction participants.

The bugs were planted by the FBI in hopes of capturing bid-rigging discussions. The lawyers for the five defendants claim the recordings are illegal. Even though they did take place in a public area, the Katz decision and the Wiretap Act require the use of warrants fpr surreptitious recordings. As the Supreme Court saw it back in 1967, the defendant’s actions turned a “public” conversation into a private one: namely, closing the door to the phone booth.

The lawyers here are hoping the use of “hushed tones” will be found to be roughly equivalent to shutting a phone booth door.

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.

The FBI’s interception of these conversations was performed without warrants. In fact, the interception apparently was performed with hardly any paperwork at all. The approval for the recording devices came solely from FBI and DOJ attorneys and the resulting recordings ran for hours, without minimization or documentation.

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Agents activated the listening devices on at least 31 occasions between December 22, 2009 and September 15, 2010. Bauer Decl., Ex. D. Generally, the recording devices were activated more than an hour before the auctions began, and they would run for a period of time after the auctions had concluded. Some of the devices intercepted every communication that occurred in their vicinity over a period of more than five hours. Id. For example, the Government recorded individuals having private conversations on their cellphones in an area away from the auctions.

Although the target was certain bidders at property auctions, the FBI swept up everything simply because leaving the mics on was simpler than restricting recordings only to the suspects in the case. A supporting document submitted by the defense details conversations unrelated to the investigation that were not only recorded by the FBI, but stored indefinitely in unminimized form.

The government has already argued that the warrantless recordings were legal as they were used to compile evidence of fraudulent behavior. It also implied probable cause existed for the deployment of surreptitious recording devices. What it omits from its defense of the FBI’s actions is that probable cause normally leads to the generation of warrants, not mini-surveillance dragnets that capture more irrelevant conversations than applicable ones.

If the court finds the FBI’s actions lawful, it will serve notice that any public area is no place to hold a private conversation, even if the participants make every effort to ensure their relative privacy. This would be at odds with previous court decisions. As the opening paragraphs of the filing point out, it has been previously noted by a US district court that leaving our own homes does not immediately open us up to unlimited government surveillance.

Wesley v. WISN Division-Hearst Corp., 806 F. Supp. 812, 814 (E.D. Wis. 1992) (“[W]e do not have to assume that as soon as we leave our homes we enter an Orwellian world of ubiquitous hidden microphones.”

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Merely being in public is not proxy consent for surreptitious recording. The government is arguing that it is, or at least that the lowered expectation of privacy means the FBI shouldn’t have to go outside of its own legal counsel to seek permission to eavesdrop — not just on suspected criminals, but whoever else happens to be in the wrong place at the wrong time.

Defense Lawyers Claim FBI Illegally Bugged Outside Steps Of County Courthouse

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