What the – ! Well, the FBI is back to the same old shady surveillance tricks, shady if you believe the Fourth Amendment still means something.
The next time you are near a courthouse, heck even out on a sidewalk or waiting at a bus stop, you might want to pay a little more attention to any trees or rocks that are nearby. Look closely. See any microphones or cameras? Why stop there? The FBI certainly didn’t when it secretly planted microphones in public near courthouses to record conversations and cameras to conduct clandestine video surveillance. And apparently the FBI decided it didn’t need no stickin’ warrant.
But hey, the FBI didn’t just bug bus stops, light boxes, hedges, backpacks and vehicles near Alameda County’s Rene C. Davidson Courthouse for 10 months between March 2010 and January 2011. According to Jeff Harp, a former FBI special agent and a security analyst for KPIX 5, a CBS affiliate for the San Francisco Bay Area:
“They put microphones under rocks, they put microphones in trees, they plant microphones in equipment. I mean, there’s microphones that are planted in places that people don’t think about, because that’s the intent!”
Granted, you don’t have much of a reasonable expectation of privacy when you are out in public, but that doesn’t mean you have none. And don’t be silly by assuming the feds had first obtained a judge’s approval and a warrant for this surveillance.
Someone authorized it
Yet some fed knew and approved it as the FBI investigated bid-rigging at public foreclosure auctions. As Harp pointed out, “An agent can’t just go out and grab a recording device and plant it somewhere without authorization from a supervisor or special agent in charge.”
According to U.S. Justice Department Attorney Kate Patchen (pdf), the FBI received “audio only” from a bug hidden in a hedge that was adjacent to steps that are next to Contra Costa County Finance Building. The backpack next to a statue inside the Alameda County Courthouse secretly recorded audio, as did the microphone at the Fallon bus stop in Oakland and the Escobar bus stop in Martinez. The feds also collected “audio only” from the Rene C. Davidson Courthouse in Oakland—at the upper light box near the top of the courthouse steps, and at the lower light box near the bottom of the steps next to the sidewalk.
The FBI secretly recorded audio and video—some color and some black and white—from cameras hidden in three “CC” vehicles parked in three different locations near the courthouse in Martinez, as well as a “AC” (Alemeda County) vehicle parked in Oakland.
The defendants’ attorneys argue the secret surveillance recordings violated their clients’ constitutional rights—as well violated the rights of all the other people whose conversations were surreptitiously recorded. The FBI may tend to agree, since federal prosecutors now say the recordings won’t be used as evidence against East Bay landlord Michael Marr.
Marr’s attorneys claim (pdf) the 364 recordings, or “dragnet electronic eavesdropping” conducted without judicial authorization—no warrant and no Title III order—violate the Fourth Amendment and the Wiretap Act.
“Speaking in a public place does not mean that the individual has no reasonable expectation of privacy,” they wrote in a motion to suppress.
They argue that not only should the unlawful recordings be thrown out, but that they should be able “to challenge other ‘tainted’ evidence that might have been obtained as a result of information the government got from the recordings.”
In fact, the defense believes the feds “committed felonies when they planted the bugs.” Also, according to East Bay Express, defense attorneys say government prosecutors moved to withdraw the recordings as evidence so the FBI can “cut its losses and sweep its criminal conduct under the rug.”
This isn't the first time
This news about the FBI’s warrantless surveillance operation isn’t the first time the feds were caught conducting secret surveillance around courthouses. Oh no—it’s the third.
The first time the FBI was caught hiding bugs near the San Mateo County courthouse in Redwood City without a warrant. The surveillance came to light thanks to documents filed at court that were part of a “sweeping antitrust sting by federal prosecutors.” The Recorder reported that in 2009 and 2010, the FBI’s bugs had been hidden (pdf) inside a metal sprinkler control box attached to the wall, in a large concrete planter box near a bench where the auctions were held, and in a vehicle parked on the street.
We may be sickened, but we probably shouldn’t be surprised, as this is just another case in a long string of cases when the FBI seems to think it is above the law. It’s not like the FBI has been particularly forthcoming even when a judge has ordered the agency to hand over more information. As EFF Senior Staff Attorney Nate Cardozo said: