Tag: wiretapping

The Administrative Office of the U.S. Courts has released its annual report on the use of federal and state wiretaps and electronic surveillance. It's available here.

In 2010, wiretaps were up 34% from 2009. There were 1,207 federal wiretaps and 1,287 state wiretaps. On average, each wiretap intercepted the communications of 118 people. The average number of incriminating calls intercepted was 26%.

A whopping 84% of the wiretaps were for drug investigations. The average cost of a federal wiretap was $63,000. [More...]

Many states only require the consent of one party to a conversation to legally record it. Some states require the consent of both parties (Think Linda Tripp and Monica Lewinsky.)

Illinois takes the two party consent rule to a whole new level. For years, it has been a felony to record a conversation unless all parties agree. And, if you record a conversation with a police officer or prosecutor without their consent, it's a class 1 felony punishable by 15 years in prison.

Illinois is charging people who record their conversations with police without their knowledge and consent. The Times article tells the story of one woman who recorded her conversation with an officer when filing a complaint for sexual harassment against another officer. And another of a man who sold art on the sidewalk without a permit and taped his conversation with an officer who arrested him for the violation.

The ACLU has been trying to have the law declared invalid, to no avail so far. Other states with similar laws: Oregon and Massachusetts. Here's a handy state-by-state guide (but check to see that it's up to date on your state.)

The Obama Administration intends to introduce a bill next year that will make it easier for feds to wiretap your internet communications.

Essentially, officials want Congress to require all services that enable communications — including encrypted e-mail transmitters like BlackBerry, social networking Web sites like Facebook and software that allows direct “peer to peer” messaging like Skype — to be technically capable of complying if served with a wiretap order. The mandate would include being able to intercept and unscramble encrypted messages.

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The Third Circuit Court of Appeals today released its long-awaited decision on whether the law and the Constitution require a warrant based on probable cause (rather than a court order issued under a lesser standard) when the Government wants cell phone providers to turn over data showing the location of the cell phone. Wired gets the import right: Court OKs Warrantless Cell-Site Tracking."

The Third Circuit is the first appeals court in the country to address the issue. The decision is here. EFF and the ACLU submitted Amicus Briefs. Disappointingly, the Obama Administration argued probable cause and a warrant are not needed for historical CSLI, and refused to say it wouldn't go the same route when seeking prospective (real-time) data.

The Court's decision is very disappointing. The ACLU and EFF are trying to spin it into a win, but it's clearly not. [More...]

Yesterday, there was a major victory for privacy.  Unfortunately, it was not in the US.  The German Constitutional Court threw out as unconstitutional a law which required storage of all flavors of electronic data on everyone.  Further, they required that the databases which had been built to comply with that law be erased.  Immediately.

Congrats to TChris for his win in a Wisconsin Appeals Court this week. A sad case, but a good outcome.

Police who videotaped a man having sex with his comatose wife in her nursing home room violated his constitutional rights, an appeals court ruled Thursday.

David W. Johnson, 59, had an expectation to privacy when he visited his wife, a stroke victim, at Divine Savior Nursing Home in Portage, the District 4 Court of Appeals ruled. Therefore, police violated his Fourth Amendment rights against unreasonable searches when they installed a hidden video camera in the room, the court said.

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Ryan Singal reports newly declassified documents show that the FISA Court had concerns the FBI was wiretapping innocent Americans:

Does the FBI track cellphone users' physical movements without a warrant? Does the Bureau store recordings of innocent Americans caught up in wiretaps in a searchable database? Does the FBI's wiretap equipment store information like voicemail passwords and bank account numbers without legal authorization to do so?

That's what the nation's Foreign Intelligence Surveillance Court wanted to know, in a series of secret inquiries in 2005 and 2006 into the bureau's counterterrorism electronic surveillance efforts, revealed for the first time in newly declassified documents.

A review of the declassified documents shows: [More...]

The New York Times reports that the Bush Administration's wiretapping of defense lawyers in terror cases in Oregon is having an effect nation-wide:

Sean M. Maher, a New York lawyer who is a co-chairman of the national security committee of the National Association of Criminal Defense Lawyers, said he knew talented private lawyers who were refusing to take on terrorism cases because of potential violations of their privacy, including monitoring of their communications with clients. That fear has grown as a result of the disclosures in Oregon, Mr. Maher said.

Lawyers who agree to defend terrorism suspects in cases involving classified information are required to undergo background checks that can include an F.B.I. review of their financial and medical records, including records of psychiatric care.

“People just aren’t going to get involved in this process,” Mr. Maher said. “I find it unfathomable that in our adversarial system, we’ve created a process to weed out qualified defense counsel.”

Background on the Oregon wiretapping is here.

I have long been opposed to any re-write of FISA granting additional powers to conduct electronic surveillance. FISA's not broke, it doesn't need fixing and it certainly doesn't need weakening at the expense of the Fourth Amendment.

This is a bill, as the Washington Post says, that "would update the 1978 Foreign Intelligence Surveillance Act to expand the powers of intelligence agencies and keep pace with ever-changing communications technologies."

The good news, as I see it, is this:

The House's action ensures that Bush will not receive surveillance legislation for several weeks. But some lawmakers from both parties said the impasse is now so deep that the issue may not be resolved until a new president takes office next year.

Bush and Republican lawmakers have shown no desire to move further toward the House Democratic leaders' position, and the Democrats are showing no sign of buckling under the mounting political pressure.

Maybe we won't get a FISA re-write after all.

Bump and Update (TL): The Senate passed the FISA bill with telecom immunity today. Firedoglake has been providing great coverage all day. It's up to the House now, where pressure will be strong to adopt the Senate bill. Sign the petition to tell them not to cave like the Senate did.

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FISA: Dodd Amendment Fails
By Big Tent Democrat

This is your Democratic Party in action:

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Update: Cloture vote fails, 48-45. They are now going on to a vote on the 30 day extension. The President has said he would veto a bill with an extension. The Republicans ask for a vote against cloture on the 30 day extension. Harry Reid is arguing for a 30 day extension. Cloture vote fails.

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The Senate is voting on limiting debate and amendments to a substitute FISA bill. The Intelligence Committee bill provides for retroactive telecom immunity. They are voting now. Both Hillary Clinton and Barack Obama voted "No."

Firedoglake has been live-blogging the hearing all afternoon.

Leading with this week's news that telephone companies shut down FBI wiretaps because the agency failed to pay its bills, an editorial in today's Denver Post compares the FBI to "keystone cops."

In addition to the telephone bill embarrassment, the Post points out:

The late payments were part of a larger pattern of loose practices when it comes to tracking money sent to field offices for undercover operations.

With FISA hearings again on the horizon, the Post says we should be paying attention to the FBI's problems as Congress debates the reauthorization of the Patriot Act: [More...]

Sen. Harry Reid pulled the FISA bill today saying there were too many amendments to consider before the Christmas recess.

Senator Christopher J. Dodd, the Connecticut Democrat and presidential candidate, spent much of the day attacking the idea of giving immunity to the phone companies, and he took credit for the delay.

“Today we have scored a victory for American civil liberties and sent a message to President Bush that we will not tolerate his abuse of power and veil of secrecy,” Mr. Dodd said in a statement.

“The president should not be above the rule of law, nor should the telecom companies who supported his quest to spy on American citizens,” he said. “I thank all my colleagues who joined me in fighting and winning a stay in the rush to grant retroactive immunity to the telecommunications companies who may have violated the privacy rights of millions of Americans.”

The ACLU calls today's action "a clear win for civil libertarians."

“The ACLU wants to thank Senator Dodd and all of the senators who joined the effort to protect civil liberties. Senator Dodd was joined by nine other senators who voted in a midday procedural vote and 15 Senators who signed a letter asking for the Judiciary Committee’s bill to be given preference over the Intelligence Committee’s bill.

Update: Consideration of the bill has been postponed to January due to the number of proposed amendments and lack of time to consider them.

Update: Here's the transcript of Dodd's speech.

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The Senate is debating S. 2248 to overhaul FISA. The bill contains retroactive immunity for the telecom companies.

A vote will begin shortly on whether to accept the bill. Right now they are moving to invoke cloture on the motion to proceed.

You can watch live on C-Span3.

Update: The Roll Call vote is happening. The room looks more than three-quarters empty. By unanimous consent, the mandatory quorum requirement is waived. 60 votes are needed to move forward with the bill. Clerk calls roll.

Sen. Leahy is expected to file a substitute bill stripping the telecoms of immunity.

Vote tally: Boxer, Feingold, Cantwell, Brown, Harkin, Wyden, Cardin, Kerry, Menendez and Dodd voted in the negative so far. Leahy and Durbin voted yes, as did Feinstein, Schumer, Kennedy, Specter, Levin and Ken Salazar. Again, this is the motion to invoke cloture to allow the bad Senate Intel Committee bill to proceed.

Vote total: Cloture is invoked. 76 to 10. Motion is agreed to. Harry Reid: No one intends to talk for 30 hours but some want to talk post-cloture. Reid wants everything from now on to take 60 votes, except for final passage. The rules don't require it, but they do take 60 votes to stop a filibuster. They are arguing about that now.

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Senator Chris Dodd is going forward with plans for a filibuster Monday when the bad FISA revision bill comes up for debate.

Bottom line: The Senate must reject the Senate Intelligence Committee bill's with provisions for telecom immunity. It must insist that any bill passed carries protections for Americans against wiretapping that comport with the Fourth Amendment.

The ACLU says:

This week the Senate will consider making vast changes to the Foreign Intelligence Surveillance Act (FISA) and will determine whether telecommunications companies should be held liable for their role in President Bush’s warrantless wiretapping program.

...."When the FISA Amendments Act of 2007 comes to the Senate floor this week, Congress has a duty and an opportunity to protect the Fourth Amendment and rein in the executive's spying power.

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