Criminal Defendants and Wireless Wiretaps: One Small Victory?


Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

A recent decision by the Justice Department has opened the doors to a possible test of whether the government’s widespread use of wireless wiretaps is constitutional.

“The Justice Department for the first time has notified a criminal defendant that evidence being used against him came from a warrantless wiretap, a move that is expected to set up a Supreme Court test of whether such eavesdropping is constitutional.”  New York Times 

It may not sound like a big deal, but without the knowledge that the prosecution was using evidence derived from warrantless wiretaps, defendants did not have the ability to challenge the legality of such evidence.  What caused the Justice Department to take this action at this time?  It seems that the Solicitor General of the United States, Donald B. Verrilli, Jr., initiated an internal Justice Department debate earlier this year.

Solicitor General Verrilli learned that the National Security Division of the Justice Department was not making these notifications when he read an article that alleged that prosecutors in Chicago and Ft. Lauderdale had claimed that notice was not necessary.  “The New York Times reported on Oct. 17 that the decision by prosecutors to notify a defendant about the wiretapping followed a legal policy debate inside the Justice Department.

The debate began in June when Solicitor General Donald B. Verrilli Jr. discovered that the department’s National Security Division did not notify criminal defendants when eavesdropping without a warrant was an early link in an investigative chain that led to evidence used in court. As a result, none of the defendants knew that they had the right to challenge the warrantless wiretapping law.

The practice contradicted what Mr. Verrilli had told the Supreme Court last year in a case challenging the law, the FISA Amendments Act of 2008. Legalizing a form of the Bush administration’s program of warrantless surveillance, the law authorized the government to wiretap Americans’ e-mails and phone calls without an individual court order and on domestic soil so long as the surveillance is “targeted” at a foreigner abroad.”  New York Times

Solicitor General Verrilli told the Supreme Court that if a Federal prosecutor was going to use evidence derived from warrantless wiretaps, the government would have to disclose that fact to the defense.  Is it a surprise to anyone that the actual practice of the Justice Department did not match what Solicitor General Verrilli had claimed in oral arguments and in written briefs to the Supreme Court?
To his credit, Solicitor General Verrilli took the proper action when he learned of the actual Justice Department practices.  One could ask if the Solicitor General had not made the statements to the Supreme Court in Clapper v. Amnesty International, would the Justice Department be making these long-awaited notifications?
Another question that should be asked and was asked is what took the government so long to do the right thing?   Even with these recent disclosures of the use of evidence derived from wireless wiretaps, shouldn’t the government have been using these notices in the five years since the act was renewed in 2008?  Why did it take the Solicitor General to follow-up on his arguments in front of the Supreme Court to bring the Justice Department into compliance?
Would the Supreme Court have come to a different result in Clapper if they knew that the Justice Department was not making the disclosures that Solicitor General Verrilli discussed?  Will this development allow convicted defendants to challenge their convictions if their conviction was based on warrantless wiretap derived evidence?
Let’s hear what you think!

36 thoughts on “Criminal Defendants and Wireless Wiretaps: One Small Victory?”

  1. Raff,

    Great piece…. Will be interested in how the court decides… Nals article yesterday should give some guidance…

  2. Thanks, raff. Good to know that maybe things are changing. Or maybe not if the supremes agree with randyjet.

  3. Dredd, Amen,’re preachin’ to the choir. I’m not so hot on Manning, as it were! But the other two, but particularly Snowden, are giving the finger to the oppressors. That is inspiring.

  4. nick spinelli 1, October 27, 2013 at 3:05 pm

    …Snowden brought tea party, libertarians and progressives together yesterday @ a DC rally.

    Nick, Americans came together in DC to prove they are conscious, aware, and still here.

    The Democrats, Republicans, and other more left or more right wing parties are at odds and unconscious, unaware, and somewhere off in a bubble.

    But, again Snowden, Assange, and Manning (and those before them who inspired them) did us good and we came together as Americans to fight BIG BROTHER, his banks, and his bodyguards.

    Let’s do it again and again soon.

  5. randyjet,
    I think that is about what I said, just said differently. As for encryption, I wrote about that recently. Even the best encryption is not 100% secure. I read the other day that Apple’s new fingerprint sensor security was broken within three days of release.

    Encryption experts are now recommending password strings longer than 250 characters. I have enough trouble remembering phone numbers, so I guess I am SOL.

  6. randyjet,
    Almost forgot. Stick around. I will be posting a piece in about a half hour you will like (I hope).

  7. Randy,
    I understand that true privacy is a legal fiction, but the way it’s supposed to work is that you should have the expectation of privacy in telecommunications. Technically, that is supposed to come with the price of the phone bill. Having said that, I follow Bruce Schneier’s advice and use what he calls an air gap. When files have to stay truly confidential, I hand deliver them to the recipient.

    1. Sorry OS but if you use a radio or other electromagnetic using devices of the PUBLIC airwaves, there is NO possible legal or moral or rational expectation of privacy. That is why combat military forces use RADIO SILENCE because they KNOW that what they say or transmit over the airwaves can and will be detected by opposing forces.

      The only place that you may run into problems is when you are using a private telephone line which must have a court order to violate that property and search, and it also goes out over a microwave link between stations. You have a legal right to privacy when your message is on the line or cable, but it is voided when it goes PUBLIC. If you really want privacy, then use encryption devices.

  8. randy, I did the same thing. It was a shadowy black and white silhouette. My old man and I watched it and had the radio on.

  9. randyjet: “If you broadcast a signal, it is PUBLIC property.”

    Nope. That is why there are wiretap laws. As we all know, they are often ignored, but that does not mean we don’t have Constitutional protections. When I make a phone call or send an email, I own that call. The fact a hacker might intercept it is not quite the same thing as if I stood on a street corner with a megaphone.

    Of course, the person standing next to me in the checkout line on a cell phone, rambling on about the most intimate details of their colonoscopy, or setting up a “nooners” tryst is a different matter.

  10. “One could ask if the Solicitor General had not made the statements to the Supreme Court in Clapper v. Amnesty International, would the Justice Department be making these long-awaited notifications?”

    Heh .. heh … sounds like Solicitor General Verrilli was hoisted by his own petard and had a most difficult time dislodging it.

  11. how long before a court decides that there have been (x) number of news stories and therefore you should have known your phone/text/e-mail communications were being monitored and that you had no expectation of privacy.

    because you really don’t

  12. Lou Reed died, age 71. He was one of my fav’s. He had a liver transplant earlier this year. Sorry for the diversion, but thought fellow fans should know. His, Sweet Jane is in my top 5 favorite songs.

  13. Nal, Good prosecutors do just that. I worked for a good chief who was adamant discovery be righteous. They’re out there. They just don’t make the news. It’s like being a good umpire, nobody should know your name. Boston fans know the name of an umpire!

  14. raff,

    This is a great catch.

    I think prosecutors should give up everything to defense counsel. If they don’t give it up, they can’t use it in court. The idea that prosecutors get to decide what to give up in the discovery process is too much of a temptation to game the system.

  15. randyjet
    1, October 27, 2013 at 2:51 pm
    If you broadcast a signal, it is PUBLIC property.
    … Like PPV?

    1. AS a matter of fact Max 1YES. You can legally view PPV if you can decode the signal since they and ALL electronic communications are using the PUBLIC airwaves. As a matter of fact, I recall watching the Ali/Liston fight when we did not have pay per view. You could still make out some figures.

      OS When you broadcast you ARE in public shouting to the electromagnetic world and using PUBLIC airwaves. Until the Congress makes the radio spectrum private property, you can have NO expectation of privacy. It is far different than the phone company using its own funds, material, and people to make the transmissions of communication privately. Those assets ARE private property, NOT the airwaves.

  16. Don’t you think Snowden is having these Holder errand boys looking over their shoulders. They know this game of musical chairs is coming to an end and nobody wants to be the last weasel standing. Snowden is a sniper sitting in a tower, and these are the weasels all looking for cover. Ya’ gotta love it. Snowden brought tea party, libertarians and progressives together yesterday @ a DC rally.

    This was actually a story line in The Wire, getting info from warrantless wiretaps. Great series, maybe the best ever.

  17. If you broadcast a signal, it is PUBLIC property. Just as if you shout in a crowd, it does not mean that you have an expectation of privacy. Simple.

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