JURIST Guest Columnists Tamara Fisher and Jacquelyn Rembis, both students at Loyola Law School, Los Angeles, discuss issues surrounding inadvertently recorded background conversations and the wide disparity of judicial opinions over their admissibility …Wiretaps are an incredibly powerful tool for prosecutors. They allow law enforcement to listen to confidential conversations and use those conversations as evidence at trial. Such power is easily subject to abuse. As US Supreme Court Justice Louis Brandeis noted in the 1928 case Olmstead v. United States, “[T]he evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded … ”
Despite this legally recognized intrusion, the use of wiretaps continues to increase. According to an annual government report, 3,576 wiretaps were authorized in 2013, resulting in a 5 percent increase from those reported in 2012. The number of wiretaps sanctioned by both federal and state courts continues to climb as those authorized by federal courts increased by 9 percent from the year before, totaling 1,476 of those authorized in 2013. Those approved by state courts grew by 3 percent, accounting for the remaining 2,100. Interestingly, 80 percent of authorized state orders came from just six states: California, New York, Nevada, New Jersey, Georgia and Florida.
The current controversy over wiretaps involves the use of background statements captured during a wiretap. For example, imagine a person who has the misfortune of speaking in the background during a wiretap. While there may be an order to tap someone’s phone for conversations regarding a narcotics investigation, surveillance agents could hear the background conversation of an unknown person regaling with others as to how he cheats on his taxes. Once prosecutors identify that individual, they will want to use the background statements to prosecute him or her. Should those conversations, which are not specifically covered by the wiretap order, be admissible?
Federal courts are currently divided on this issue and California appellate courts have yet to confront it. A majority reject the use of such background conversations, yet a few courts will admit them so long as there is a lawful wiretap order. The decision on this issue often determines whether defendants can be tried and convicted for offenses that were never subject to a wiretap order.
To determine whether a conversation is admissible, courts initially look to the language of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, currently codified at 18 U.S.C. §§ 2510-2522. Pursuant to Section 2518(4)(c), law enforcement must submit an authorization order that specifies the form of communication to be intercepted and the particular crime to which it relates. Title III requires that law enforcement listen only to conversations that relate to the investigation, thereby minimizing interception to protect privacy rights. However, this provision does not directly answer whether inadvertently intercepted background conversations may be used as evidence.
Courts generally take a strict approach to Title III and do not admit the background conversations unless they are specifically authorized by the court’s wiretap order. In United States v. George, the US Court of Appeals for the Sixth Circuit reversed the lower court’s judgment due to the use of evidence in the form of electronic surveillance outside the wiretap order. Similarly, in United States v. King, the Southern District of California granted a motion to suppress background conversations because they were not covered by the ‘wire communications’ described in the order. According to these courts, wiretaps should be limited as much as possible to the specific order authorizing the interceptions. While background conversations might be interesting to law enforcement, they are beyond the scope of the court’s order. In these jurisdictions, if law enforcement wants to intercept and use such information, they must apply to the court for an amended order.
Some courts are so troubled by the interception of background conversations that they will suppress conversations intercepted that would have been covered by the court’s order. For example, in United States v. Scott the court held that the government’s interception of background conversations involved a failure to minimize adequately, thereby violating the court’s Title III order. Similarly, the court in United States v. Borch suppressed a monitored conversation when investigators recorded conversations that were clearly occurring when the telephone was inadvertently left off the hook. The court held that even though there was a Title III order, the conversations were more akin to a face-to-face conversation that was not covered under Title III as opposed to the recording of a phone conversation.
Yet, most courts will take a middle ground stance. The court in United States v. Lanza decided to suppress non-pertinent conversations and admit all others so long as the officers made a good faith attempt to comply with the minimization requirement. In the alternative, the court in United States v. Couser held that intercepted background conversations with a sufficient factual basis—such that a judge would have included them in the warrant—were admissible in the absence of bad faith from law enforcement.
For the majority of courts, minor violations of Title III do not require suppression of an entire wiretap. Instead, these courts are willing to evaluate all wiretap conversations and choose which to include in the record. This approach relaxes the requirements for law enforcement and permits a case-by-case analysis of what conversations should be admissible. While such leniency may seem at odds with privacy concerns, Justice Douglas clarified in United States v. Chavez that, “We did not go so far as to suggest that every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications ‘unlawful.'”
Given the vastly different approaches articulated by the courts, it is time to consider a bright-line rule for the admissibility of background conversations. Optimally, Congress would amend the statutory language of Title III to make clear whether such conversations should be admissible and to what extent. However, in the face of congressional inaction to amend the statute—which is likely given the current legislative landscape—it would be helpful for the courts to adopt a uniform approach themselves.
Given the enormously invasive potential of wiretaps, the burden should be on law enforcement to include a request for background conversations in the application for a wiretap order. If they do not, the conversations should be inadmissible. The ongoing taping of such conversations reflects a failure by law enforcement to properly minimize their interceptions as required by the statutory language of Title III. As such, all of the taped conversations should be excluded until there is compliance with the court’s order.
In the end, Title III may be a necessary tool for law enforcement. But, as the US Court of Appeals for the First Circuit articulated in United States v. Hoffman, its “intrusions [should be confined] as narrowly as possible so as not to trench impermissibly upon the personal lives and privacy of wiretap targets and those who, often innocently, come into contact with such suspects.” In this time of growing government surveillance, at minimum law enforcement should comply with current governing statutes.
Tamara Fisher is a student at Loyola Law School, Los Angeles, where she serves as a staff member on Loyola’s International and Comparative Law Review. She earned her B.A. in Political Science and a B.A. in Global and International Studies from the University of California, Santa Barbara.
Jacquelyn Rembis is a student at Loyola Law School, Los Angeles, where she is a staff member on Loyola’s Entertainment Law Review. She currently serves as a law clerk at the Loyola Law School Project for the Innocent and as a law research assistant for Professor Laurie Levenson. She earned her B.A. in Psychology from Loyola Marymount University.
Suggested citation: Tamara Fisher and Jacquelyn Rembis, The Ongoing Debate: Wiretaps and Background Conversations, JURIST – Student Commentary, Oct. 21, 2014, http://jurist.org/student/2014/09/fisher-rembis-wiretaps-background.php
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