Yesterday, the First Circuit announced new rules
imposing a duty on the government to disclose in
its applications for wiretap orders how the
wiretaps will be executed. The decision has
interesting implications for the debate over
Carnivore/DCS-1000, the FBI's Internet
surveillance tool. The case is United States v.
Lopez, -- F.3d --, 2002 WL 1880282 (1st Cir.,
Aug. 20, 2002) (Torrruella, J.)
This case involves an investigation into a cocaine
distribution conspiracy in Maine, and particular
wiretap orders to monitor two mobile phones
used by co-conspirators. Rather than implement
the surveillance themselves, the government
hired "civilian monitors" to monitor the calls and
conduct the required minimization. Minimization
is the the act of screening pertinent from non-
pertinent calls to minimize the number of non-
pertinent calls intercepted. Normally this is
performed by law enforcement agents, but here
the government hired "civilian monitors" to do the
job. The wiretap orders yielded about 1700
intercepted calls, which "buil[t] a formidable case
against the conspiracy members," especially one
defendant named Amado Lopez.
On appeal following his conviction, Lopez argued
(among other things) that the government
violated the Wiretap Act by not disclosing in its
application to the court for a wiretap order that it
planned to have the civilian monitors implement
the court order. This argument should resonate
with those who are following some recent
disputes and cases in the computer crime world.
In the context of Carnivore, the FBI has been
criticized for wanting to implement wiretap orders
at ISPs itself in some cases, and in a pending
appeal in the 8th Circuit, the government is
appealing a district court's decision that the
Fourth Amendment requires the government to at
least be physically present when an ISP executes
a warrant for stored e-mail. (for background, see
http://www.epic.org/privacy/bach). So the issue
of how surveillance orders are implemented, and
by whom, and what rules govern, is very much a
current concern.
The First Circuit held as a matter of first
impression that the Wiretap Act does require the
government to disclose in its application when it
uses civilian monitors in the execution of the
warrant, but that in this case, suppression was
not an appropriate remedy.
Here's is the court's analysis of why Title III
requires the disclosure of civilian monitoring:
There is no doubt that the use of civilian monitors
for the execution of a wiretap cannot constitute a
per se violation of Title III, since the statute
explicitly contemplates the assistance of civilian
personnel. Specifically, Title III provides, in
relevant part: "An interception under this chapter
may be conducted in whole or in part by
Government personnel, or by an individual
operating under a contract with the Government,
acting under the supervision of an investigative or
law enforcement officer authorized to conduct the
interception." 18 U.S.C. ¤ 2518(5). Nevertheless,
Title III generally places a burden of "full and
complete" disclosure on the government in its
application for a wiretap, see id. ¤ 2518(1)(b),(c)
& (d), and the issuing judge is obliged to craft the
order approving the wiretap with specificity, see
id. ¤ 2518(4). These provisions necessitate
candor on the part of the government--a candor
that, in our view, would generally be undermined
if the government could withhold important
information about the manner in which the
wiretap will be conducted.
The government's failure to disclose its plans to
use civilian monitors frustrates the objectives of
other provisions of Title III as well. For example,
the statute mandates that the issuing judge
include in any order a provision requiring that the
wiretap be conducted in such a way as to
minimize nonpertinent communications. See id. ¤
2518(5). If the issuing judge is kept ignorant of
the manner in which the government intends to
execute the wiretap, this diminishes the judge's
ability to craft an order that is sufficiently
protective of the minimization requirement. In
addition, the statute permits the issuing judge to
require status reports showing "what progress
has been made toward achievement of the
authorized objective and the need for continued
interception." Id. ¤ 2518(6). Yet, without
information on how the calls are being
intercepted, and by what personnel, the judge's
impression of the progress of the wiretap may be
mistaken.
In light of these considerations, we hold that the
government must disclose, as a part of its
application for a wiretap warrant, any intention to
utilize the services of civilian monitors in the
execution of the warrant. To hold otherwise
would, in our view, run counter to the general
duty of candor the statute imposes on the
government and impair the issuing judge's ability
to preserve important privacy interests protected
by Title III.
While the holding is technically narrow, the
principle here seems quite broad. "Civilians" can
be used in lots of ways-- to install the monitoring
devices, to check on the monitoring devices, to
collect the evidence, to sift through the evidence,
to sent back evidence -- and the court's opinion
does not specify which way triggers the
disclosure requirement. Indeed, the opinion
speaks of the difficulties "[i]f the issuing judge is
kept ignorant of the matter in which the
government intends to execute the wiretap." To
me, this suggests that the entire world of who will
be implementing the court order, even by what
device, may now be something that the
government must (or at least should) disclose in
its Wiretap Act applications.
Next, the court concluded that the government's
failure to disclose the involvement of civilian
monitors did not mean that the evidence should
be supressed:
. . . [I]it is well-settled that not every failure to
comply fully with any requirement provided in
Title III necessitates suppression." United States
v. Escobar-De Jesus, 187 F.3d 148, 171 (1st
Cir.1999); see United States v. Donovan, 429
U.S. 413, 432-34, 97 S.Ct. 658, 50 L.Ed.2d 652
(1977); United States v. Chavez, 416 U.S. 562,
571-79, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). A
court evaluating a suppression motion must
consider whether the underlying violation of Title
III frustrated the protective purpose of that statute
in a particular case. Thus, "violations of even ...
central requirements do not mandate
suppression if the government demonstrates to
the court's satisfaction that the statutory purpose
has been achieved despite the violation." United
States v. Cunningham, 113 F.3d 289, 293-94 (1st
Cir.1997) (quoting United States v. Johnson, 696
F.2d 115, 121 (D.C.Cir.1982)). Without trivializing
the nature of the violation in this case,
we find that the wiretap was conducted in manner
that preserved the core protective purposes of
Title III.
The restrictions in Title III aim to limit the use of
wiretapping to those situations where it is truly
justified, and to protect privacy as mush as
reasonably possible when wiretapping is used.
See Escobar-De Jesus, 187 F.3d at 171. The
undisclosed use of civilian monitors did not affect
the likelihood that the wiretap would be
authorized in the first place, nor did it increase
the wiretap's intrusion on privacy interests. The
principal purposes of Title III were not frustrated
by the violations here.
In addition, the district court's unchallenged
findings demonstrate that, aside from the failure
to disclose the use of civilian monitors, the
wiretap was conducted in an admirably
professional manner. Privacy concerns were
protected to the greatest extent possible.
Suppression is less likely to be necessary when
the violation of Title III represents an isolated flaw
in "a process that in all other important respects
complied with the statute." Cunnignham, 113
F.3d at 294.
Finally, there is no indication that the
government's violations of Title III were willful or
knowing. We are the first court of appeals to hold
that Title III requires the government to disclose
any plans to employ civilian monitors; indeed, we
appear to be the first court that has been
squarely presented with the issue. Thus, the law
enforcement in this case presumably did not
realize that their undisclosed use of civilian
monitors could constitute a violation of the
statute. The district court determined that,
although the used of civilian monitors departed
from the precise terms of the order authorizing
the wiretap, "the violation was inadvertent, as
opposed to a conscious decision by the
Government or law enforcement officers to take
action they knew to be contrary to an intercept
order." Lopez, 106 F.Supp.2d at 100.
In sum, Title III imposes an obligation on the
government to disclose to the issuing judge any
plans to use civilian monitors in the execution of a
wiretap warrant. In the case at hand, however,
the government's failure to make that disclosure,
along with the government's seeming violation of
an order that did not permit the use of civilian
monitors, does not provide a valid basis for
suppressing the intercepted communications.
At least as a matter of doctrine, this section of the
analysis is plainly correct: the Supreme Court has
been pretty clear that courts should suppress
wiretap act evidence only if the government's
error is very serious. See, e.g., Giordano, 416
U.S. at 527. It's still not clear whether civilian
involvement executing orders infringes privacy
(as privacy groups have argued in Bach) or
protects it (as privacy groups have argued in the
Carnivore debate). As a result, it would have
been misguided to see the government's chosen
procedure as an error that warranted suppression
under the Supreme Court's standard.
[by Orin S. Kerr's Computer Crime Case Updates Mailinglist]
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