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'Illegal' Wire-tapping?

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I don't know if this has been brought up before, but something occured to me the other day while thinking about this whole wiretapping embroglio: was it actually illegal? Is there a law that says wiretapping (or other covert observation) cannot be conducted without some sort of Congressional or judicial approval? The Constitution only says that evidence so acquired cannot be used to convict anyone of a crime, and the 'fruit-of-the-poisonous-tree' doctrine forbids introduction of any evidence uncovered as a result of illegally obtained evidence. The wiretaps would be useless in detaining anyone prior to any sort of terrorist attack, but their content (conceivably) could be used to thwart an attack by other means. I guess government wiretapping could be obnoxious for other reasons, but did anyone actually break a law here?

-Q

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I don't know if this has been brought up before, but something occured to me the other day while thinking about this whole wiretapping embroglio: was it actually illegal? Is there a law that says wiretapping (or other covert observation) cannot be conducted without some sort of Congressional or judicial approval?
Those are two separate questions. There is, to the best of my knowledge, no statute prohibiting wiretapping, and it is not expressly prohibited by the Constitution. But under common law tradition, "the law" is more than just the statutes and Constitution, it is also the interpretive tradition created by the courts. (Warning: the latter is a statement of fact and not a statement of approval). So then...
The wiretaps would be useless in detaining anyone prior to any sort of terrorist attack, but their content (conceivably) could be used to thwart an attack by other means. I guess government wiretapping could be obnoxious for other reasons, but did anyone actually break a law here?
As far as I know, there is no special category of "legal but unusable" -- the underlying philosophy of poison fruits is that it is legally wrong for the government to act in certain ways (invading a home, etc) and therefore the results of illegal actions by the government cannot be admitted in court (because it would fatally compromise the integrity of the legal system). Now what remains is a close scrutiny of the anti-wiretapping legal doctrine. The specific current NSA case is hopelessly complicated, IMO, since the actual facts regarding who did what to who is not known by me.
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The fourth amendment states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

I think the language is clear – before you invade private property (whether your home, or your business, such as a phone company) you have to have probable cause and a warrant. Any laws stating otherwise are unconstitutional (and immoral.)

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By the way, I understand that the Bush administration claims that the warrant-less wiretaps were only used in calls between the U.S. and other nations. I think it’s reasonable to pass an emergency law in a time of war that allows skipping search warrants they are not practical. But we are not (legally) in a war, and there were measures in place to obtain the necessary warrants.

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I don't know if this has been brought up before, but something occured to me the other day while thinking about this whole wiretapping embroglio: was it actually illegal?

I wish I knew enough about FISA to answer this question. Sadly, I've got a little too much on my plate right now to do that kind of research, which would be basically learning the whole thing from scratch.

Is there a law that says wiretapping (or other covert observation) cannot be conducted without some sort of Congressional or judicial approval?
There are federal statutes prohibiting certain wiretapping. Start here. As with FISA, I don't know this stuff.

The Constitution only says that evidence so acquired cannot be used to convict anyone of a crime, and the 'fruit-of-the-poisonous-tree' doctrine forbids introduction of any evidence uncovered as a result of illegally obtained evidence.

The Constitution has been interpreted by SCOTUS to render most warrantless searches illegal: "With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no." Kyllo v. U.S. (2001). A person's rights are violated regardless of whether evidence is eventually excluded. The fact that there was a rights violation is why the exclusionary rule exists in the first place. Plus, in 1983 litigation, you have to prove deprivation of a Constitutional right. If the rights violation didn't occur until the evidence was used in a criminal case, then any criminal defendant whose case didn't go to trial (and arguably any criminal defendant who wasn't convicted) would automatically lose his 1983 claim.

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  • 3 months later...

I find this issue to be actually rather funny. It is because it proves that liberals and conservatives have switched places on who is federalist and who is antifederalist. It seems that the conservatives are becoming federalist and liberals antifederalist, although this doesn't make sense in a historical, or in fact any, context. As a general rule liberals prefer stricter governments while conservatives prefer looser ones. However, having read all 200+ pages of USA PATRIOT Act of October 2001 and several responses to it (for example, Sen. Wyden, OR-Dem.), that the liberals are now wanting loose government and the conservatives a strict one. My answer to it is a simple three-letter acronym.

W.T.F.

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  • 3 weeks later...
I find this issue to be actually rather funny. It is because it proves that liberals and conservatives have switched places on who is federalist and who is antifederalist. It seems that the conservatives are becoming federalist and liberals antifederalist, although this doesn't make sense in a historical, or in fact any, context. As a general rule liberals prefer stricter governments while conservatives prefer looser ones. However, having read all 200+ pages of USA PATRIOT Act of October 2001 and several responses to it (for example, Sen. Wyden, OR-Dem.), that the liberals are now wanting loose government and the conservatives a strict one. My answer to it is a simple three-letter acronym.

W.T.F.

I would be careful here on several fronts; first, you cannot always equate liberal with Democrat and conservative with Republican. Second, you have to be very careful about taking a specific example such as the PATRIOT act and judging reactions of the parties based on their responses to just that; the Democrats (and liberals more specifically) oppose it not because they value smaller federal government, but first, because they are not the party in power (and I don't kid myself that it is only the Dems that act this way). Second, because they are opposed not to big government, but the government doing the specific things that the PATRIOT act authorizes. Third, because liberals in general have historically been the party of giving as many freedoms as possible to criminals/enemies of the USA while putting as many restrictions as possible on law enforcement/protection of the United States (you can argue the reasons behind these trends, but as general trends they remain true). There are many in America today who call themselves conservatives, and in many issues are, but think the government should control everything, which directly opposes traditional conservative values. Likewise, there are many who call themselves liberals but think the government today should be smaller and more restricted, not because they believe in actually having a smaller government, but because the current government isn't doing what they want them to.

Mike.

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  • 4 months later...

*bump*

After many months of cogitation, and several of legal education, I return to the subject with the following questions:

1) David suggested wartime exceptions for situations where a warrant would be 'not practical.' What would constitute an impractical warrant? One where obtaining oath or affirmation was impractical? One where specificity in what is to be searched is impractical? The language says no warrants shall issue. Under what circumstances can we suspend this?

2) Would the phone company have the right to listen to conversations and turn recordings over to law enforcement on its own initiative, absent anything in the agreement between it and its customers explicitly denying it the right? Would that give rise to a 1983 action?

3) What about conversations that do not involve US citizens, but which pass through US territory, or are mediated by US interests?

Just some thoughts....

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2) Would the phone company have the right to listen to conversations and turn recordings over to law enforcement on its own initiative, absent anything in the agreement between it and its customers explicitly denying it the right? Would that give rise to a 1983 action?
(bold mine)

I don't think you'd have a 1983 claim. A 1983 claim requires state action. If the phone company was acting on its own initiative, even if it turned over its stuff to the gub'men, that isn't state action. You can have state action where private parties are involved, under the standards set forth in Lugar, which as far as I know is still good law. From part III:

Our cases have accordingly insisted that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State. These cases reflect a two-part approach to this question of "fair attribution." First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible. In Sniadach, Fuentes, W. T. Grant, and North Georgia, for example, a state statute provided the right to garnish or to obtain prejudgment attachment, as well as the procedure by which the rights could be exercised. Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. Without a limit such as this, private parties could face constitutional litigation whenever they seek to rely on some state rule governing their interactions with the community surrounding them.
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What would constitute an impractical warrant? One where obtaining oath or affirmation was impractical? One where specificity in what is to be searched is impractical? The language says no warrants shall issue. Under what circumstances can we suspend this?
The 4th does not state that all searches require a warrant. It states that there should be no unreasonable searches, and it also says, separately, that any warrants, if you have them, require probably cause. If we want a legal system where literally all searches require warrants (as in, checking for weapons when someone is being arrested), then we have to evicerate the concepts of warrant and affirmation, by giving cops a pre-signed warrant-pad like a pad of tickets. Otherwise, we have to require that the search be reasonable. I personally think that searching a perp for weapons when you're planning to haul him in to jail is perfectly reasonable. The issue of war-time warrants injects the problem of espionage, which is not usually an issue with ordinary criminal cases (except in New Jersey). The possibility arises that the judge is a Nazi spy, or that his secretary is, and if word gets out about this search, an entire Amry division will be obliterated. So the risks in war can be so high that it is unreasonable to demand a warrant in every case. They can be, but are not automatically.
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I agree. What then makes a search reasonable, and thereby not barred under the 4th Amendment? For example, is it reasonable to subject every airline passenger to a search, without a warrant and without probable cause?

-Q

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What then makes a search reasonable, and thereby not barred under the 4th Amendment? For example, is it reasonable to subject every airline passenger to a search, without a warrant and without probable cause?
No, but I'd go so far as to say that a search should always have probable cause, regardless of the presence of a warrant. That is, "reasonable" means having probable cause. Warrants are a method of objectively controlling such judgments, so a warrant to search is a good idea, but cannot be an absolute since on occasion there isn't the oportunity to reflect, and the need to check (lest the perp escape forever) is great enough. But airline searches introduce a higher level of complication in the discussion, since there is almost uniformly no probable cause. Let's make this be random searches on the sidewalk -- generally, no probable cause, but sometimes, at the scene of the crime, there can be probable cause. For instance, a thief may have grabbed a ring and run, and the cop may have run after him with good reason to suspect that he did take the ring. In contrast, DWB is not probable cause even in the fanciest white neighborhood you can imagine. But if you add to that "speeding away" and "a block from a break-in reported a minute ago", then you have probable cause.

Essentially, this is the problem of saying what level of evidence is required, in order to morally violate a person's rights under color of law. It should be high, but not infinitely high. That's actually, IMO, the toughest question in jurisprudence. Now back to the airline question: there should be no legally mandated searches of passengers, but it should be company policy to do so, and if you don't like it, take the bus.

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