Wiretaps are arguably the greatest invasion of privacy that the government can do. They’re listening in on private conversations, not intended to be overheard by anyone else. So to get a wiretapping warrant, the government has to do more than for a normal search warrant. There has to be more than just probable cause that they’re likely to find evidence of a crime. Only certain crimes count. There has to be good reason to do a wiretap as opposed to some other less-invasive investigative technique. Only particular conversations can be sought, over particular phones. Etc. etc. etc.
Not only is there a heavier burden to meet before a wire can be granted, the government has to comply with some very strict rules as they carry out the eavesdropping. On that issue of particular conversations, for example, they have to do what they can to minimize the amount of non-relevant or privileged conversations that get listened to. This is called “minimization.” When it appears that a call isn’t pertinent (i.e., it isn’t evidence of a crime), or that it’s privileged (as a call with one’s attorney, doctor or spouse), then they have to stop listening and recording. The call gets “minimized.”
The cops or agents who are monitoring the wire have to do more than just act in good faith. Their minimization has to be objectively reasonable — the law only cares what an ordinarily reasonable person have thought in the circumstances, not what the cop himself happened to think. So a properly-run wire is going to have minimization procedures that are spelled out at the beginning of the investigation, in writing, signed by every agent before they get to monitor any calls, with a reference copy there at the monitoring location just in case there are any questions later. The prosecutor is going to be involved throughout, and it’s really the prosecutor’s responsibility to make sure that everyone knows what they can and cannot do. It’s also the prosecutor’s job to review all the calls that were intercepted and, among other things, make sure that the cops are minimizing properly.
But what happens if the government doesn’t do that? What happens if oblivious or malicious agents record and listen to all kinds of personal calls that have nothing to do with the crime they’re investigating? What happens if a lazy or inexperienced prosecutor fails to nip it in the bud, or if a malicious prosecutor allows it to keep happening?
It’s an important issue these days, because the feds have been doing exactly that.
As we’ve pointed out a few times, the feds have been all gung-ho for doing wires on white-collar stuff these days, but the white-collar teams aren’t exactly the most experienced at doing wiretaps properly. For one thing, the feds hardly do any wires in the first place, comparatively speaking. It’s just too much of a bureaucratic hassle to go all the way up the DOJ chain of command to get the bosses to sign off on one. And staying up on one is even more of a hassle, because you’ve got to do all that in a compressed amount of time to renew the wire before it expires, while at the same time trying to manage the wire itself and figure out just what the heck is being intercepted and whether it means anything. State-level wiretaps are much more common, and tend to be done by people with more experience in doing them. Expediting the process only leads to more errors by less-experienced folks without as much oversight.
Because of their relative inexperience, and also because of reduced oversight, the feds have been making a bunch of mistakes in the way they do their wires lately.
But at the same time federal judges are just letting them slide. There haven’t been any consequences. There’s no penalty for even the most egregious violations of people’s privacy rights.
The exclusionary rule, as we’ve said repeatedly, is quite an elegant solution to a sticky problem. There’s a constitutional line which the police cannot cross in gathering evidence. Society wants the police to gather all the evidence they are allowed to, all the way up to the line. Society does not want people to be convicted with evidence that was gathered by crossing the line and violating their rights. We don’t punish the police officers personally for crossing the line, because then they’d be reluctant to go anywhere near the line, and society would lose lots of perfectly lawful evidence. Instead, we let the cops go right up to the line and dance on that line. And if they happen to cross the line, then we just don’t let them use that extra evidence against the defendant. All of society’s goals are attained with no fuss or muss.
It’s a good thing it’s so elegant, because the exclusionary rule is really the only tool in the courts’ toolbox here. If the government violated the Fourth Amendment, then the evidence gathered as a result of that violation must be excluded. The problem is that the courts often decide it’s better to have all the evidence. Courts routinely say that society wants the truth, or that there is a greater policy in favor of using as much evidence as is known, or stuff to that effect. And when that happens, the courts get rid of that one elegant tool they have to protect your rights from government excess.
And so, for example, we get decisions like Judge Holwell’s last November, declining to suppress wiretap evidence in the Galleon case even though the wiretap applications were little more than a fraud on the court. The judge found that the issuing judge had been misled as to the necessity for the wire. A situation crying out for suppression — and sanctions — and the defendant was forced to go to trial instead because that was preferable to the court.
And we get decisions like that of Judge Sullivan yesterday, declining to suppress wiretap evidence in another white-collar case even though the feds committed such outrageous and brazen violations of the minimization requirement that it was impossible to believe that it wasn’t completely intentional.
“The court is deeply troubled by this unnecessary, and apparently voyeuristic, intrusion” into the defendant’s private life, wrote the judge. But that didn’t stop him from ignoring the exclusionary rule altogether, permitting these and other deeply troubling prosecutors to keep on doing whatever they like.
Namby-pamby judges in the past tried to deal with minimization violations by just suppressing the personal conversations. This served no use whatsoever, because all that did was exclude evidence that wasn’t admissible at trial in the first place. There was no penalty for violating this fairly important rule.
So there has been pressure on the courts to actually enforce the rule in a meaningful way, by suppressing all conversations that were intercepted on a wire where there were blatant violations of the minimization requirement. Instead, the courts appear to have gone in the opposite direction. “We can’t suppress,” they seem to be saying, “because then we’d lose all that lovely lovely evidence.”
Well, they’re not being namby-pamby about it. But that doesn’t make their decisions any less abhorrent.