> The defense motion claims that beginning in December 2009 government agents planted microphones in three locations near the entrance of the courthouse at 401 Marshall Street in Redwood City: inside a metal sprinkler box attached to the wall, in a large planter box and in vehicles parked on the street. The hidden microphones were activated at least 31 times through September 2010, according to the filing.
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> The only authorization came from attorneys working for the FBI and Antitrust Division of the U.S. Department of Justice, the motion states.
In one sense, this is a small thing. There isn't any allegation that the recordings caught privileged attorney-client communication or jury deliberations. But it is an attack on the integrity of the legal system, and it's part of a pattern of attacks on the legal system that adds up to a serious threat to the rule of law.
Defendants are asking for these recordings to be quashed. That is what is customary, but it is not sufficient; there need to be consequences for those who did it and who authorized it. The defendants are only incentivized to argue as far as necessary for their own defense; it is up to the judges to censure the parties responsible.
Read Glen Greenwald's book Liberty and Justice for Some.
The rule of law is largely a joke that the powerful trick the weak into accepting. The constant drilling away at the supposed sanctity of the legal system is evidence that the people who run things really don't care so much about attorney client privilege or due process.
If this really is what Greenwald is saying, than he's pretty solidly turned into the Glenn Beck of the left.
The rule of law might not seem always fair, but it hampers the powerful much more than the weak. As an example: None of the billionaires in my city have set up their own duchy pressed us into an army, enforcing their own laws. Their taxes, while not as high as I would like, in fact pay for much of our city budget including city services. Even the poor in my city have access to clean water and the library system.
Just because we have to fight to maintain the sanctity of the legal system and because every actor isn't perfect, does not mean that it's entirely corrupt and captive. I would ask you to take a moment to compare the current rule of law, rule of law in a developing country, and rule of law without the rights guarded by a nation-state.
Are you kidding me? Prisons are filled with poor black drug offenders. If you're wealthy you can literally be a convicted paedophile sex offender and not do time.
The fact you attribute clean water as a sign of a functioning justice system shows how low your bar is.
Edit: I will say we have rights that exist. You just need to able to afford high power attorneys to prove such.
Your bar is too high; getting clean water consistently for almost a century straight, without any major interruptions, for 99% of the population is damn good proof that rule of law works.
> Prisons are filled with poor black drug offenders
How is that an example of the justice system not functioning? 80-90% of people think drugs other than marijuana should be illegal. 32% see drug abuse as a "crisis" and another 55% as a "serious problem": http://www.people-press.org/2014/04/02/americas-new-drug-pol....
People thinking drug use is dangerous and making it illegal, and then putting people in jail for trafficking in drugs (which accounts for the vast majority of sentences), is not a failure of the justice system.
EDIT: Since people seem confused by certain FUD on this subject. The vast majority of "drug offenders" filling prisons are there for trafficking not possession: http://www.drugwarfacts.org/cms/Prisons_and_Drugs (only 5.3% of federal drug prisoners are serving time for possession; 91.4% are serving time for trafficking). And 80-90% of people support keeping cocaine and heroin illegal: http://www.huffingtonpost.com/2014/04/17/drug-legalization-p....
Also account for the time lag between changing public opinion and changes in policy. As recently as 2001, 45% of people polled (and probably a much higher percentage of actual voters, who skew older and more conservative), opposed getting rid of mandatory minimum sentences for non-violent drug crimes.
Probably due to the inequality of enforcement. If everybody agrees something should be a crime but offender group A gets a 5 year sentence and group B gets 10 years or one gets community service and the other gets jail there's some kind of problem.
Did you even read the headline of the source you posted, let alone its content? It says the exact opposite of what you are claiming. Here's the sub-head: "Two-Thirds Favor Treatment, Not Jail, for Use of Heroin, Cocaine."
People do NOT support jailing offenders for minor drug offenders.
Your link is the opposite of what you claim - hell, the first paragraph clearly states that the bulk of people want rehabilitation rather than incarceration for users of harder drugs.
I don't have appropriate legal citations, but yes, via the doctrine of "possession with intent to distribute" -- i.e. if you have more of the drug than one person could possibly hope to use, then courts have ruled that one can infer the person was intending to share or sell the drugs.
We need not tell you to do more than what you're obviously capable of: find some research into the difference in outcome for black people and white people.
A successful rule of law functions in spite of, and not at the utter service to, the majority.
>>The rule of law might not seem always fair, but it hampers the powerful much more than the weak.
I guess we live in different realities. The powerful have proven over and over that they are capable of subverting the system in their own favor using their resources and influence.
>>As an example: None of the billionaires in my city have set up their own duchy pressed us into an army, enforcing their own laws.
They haven't set up their own duchies with private armies because they haven't had to. The state already protects them. Here is a direct quote from Adam Smith's Wealth of Nations:
“Civil government, so far as it is instituted for the security of property, is in reality instituted for the defense of the rich against the poor, or of those who have some property against those who have none at all.”
>I guess we live in different realities. The powerful have proven over and over that they are capable of subverting the system in their own favor using their resources and influence.
At least the post you are replying to had the courtesy of providing supporting arguments.
I don't think I agree with the extreme nature of the premise a number of comments up the thread, that said my favorite example of this:
http://www.vaildaily.com/article/20101104/NEWS/101109939 A hedge fund manager had his criminal charges substantially reduced over the victim's objections because having a felony would mean the hedge fund manager would have to admit what he did to his clients. The defendant in question struck a bicyclist in a hit and run, drove far away and called for roadside assistance for his car never mentioning anything about the bicyclist he left with lifelong injuries. Of course the excuse is that after he was caught he agree to pay some restitution to the victim...
Anyway, just a crazy story that I figured I'd share so not really a study of real national trends or anything.
The rule of law and the basic functioning of the state is one and the same. The state sets and enforces the law. The state's strength and the consent/will of the populace determines the success of the state and the law.
The states in the Arabian peninsula have strong legal systems, yet they are highly inconsistent when it comes to serving the people. For example, Saudi Arabia has very strong legal enforcement, but you wouldn't want to be black or a woman there.
> The rule of law might not seem always fair, but it hampers the powerful much more than the weak. As an example: None of the billionaires in my city have set up their own duchy pressed us into an army, enforcing their own laws.
And the poor haven't sacked them or hauled them to the guillotine. I still feel like the rich are winning here.
> Even the poor in my city have access to clean water and the library system.
Were there attempts to take those away that were successfully stopped in court? Because otherwise, you seem to be hand-waving more than arguing.
I don't consider it "winning" that people aren't hauled to the guillotine. I consider it their basic human right.
This reminds me, BTW, how lots of people have recently, after the terrorist attacks in Paris, urged us to sing La Marseillaise, to express sympathy to the French. That is slightly funny: the lyrics are rather blood-curling.
Do you hear, in the countryside, the roar of those ferocious soldiers?
They're coming right into your arms to cut the throats of your sons, your women!
To arms, citizens, form your battalions,
Let's march, let's march! Let an impure blood water our furrows! (Repeat)
I mean, it looks like people confuse it with All You Need Is Love which just steals the intro from it.
> I don't consider it "winning" that people aren't hauled to the guillotine. I consider it their basic human right.
Well, duh. Did you miss the comment I was replying to, which suggested that the poor are better served by our system of laws than the rich are because the rich don't press them into servitude and they have clean water?
I wouldn't dispute that we do not all enjoy equal protection under the law. But I wonder how your belief accounts for instances where the "rule of law" has been prioritized by the courts over criminal investigations.
For a notorious example, consider that some members of the Weather Underground committed crimes that could easily have resulted in life sentences, yet they are free today because the court found the evidence against them was collected illegally. This may not be a typical example, but it would seem to conflict with the idea that the rule of law is "largely a joke."
The rule of law was a real thing for much of American history, and it's a real thing in many other countries. If we want it back, we can't be tricked into thinking this problem is in any way universal or inevitable.
There have always been problems in the US and elsewhere. It's a continual fight. Saying "woe is us, it's all rotten, we can't do anything" is capitulating in the worst sort of way to those who would take away our rights.
Oh my god YES, the cynicism in politics and about the process is the quickest, surest way to guarantee that the people who hold those attitudes will be proven right.
"Those politicians are all the same, there's no point in voting or being politically active, it's all going to hell, etc."
It's so not true, and it's just the kind of disempowering disregard for one's own agency that anyone who's greedy for power would love to hear. Man, when I hear that shit now, I just want to shake those people and say, "YOU'RE THE PROBLEM!!"
You're right, it is a continual fight. It never ends. There's no final set of laws or behaviors we're going for. The process is what matters.
It's not binary. The rule of law has quite often failed to protect the legal rights of Black Americans, for example. (even laying aside the historical problems when rule of law didn't even provide legal rights.)
"The rule of law is largely a joke that the powerful trick the weak into accepting."
If you're saying that in the US the rule of law has been corrupted to the point that it's largely a joke that the powerful trick the weak into accepting, then while that's a bit stronger than I'd agree with, I do see how you'd come to the conclusion.
If you're saying that rule of law itself is largely a joke that the powerful trick the weak into accepting, then that's a deeply concerning statement.
Real estate auction collusion is a big problem that robs people of 10s of thousands of dollars. I don't buy the argument that conducting your crimes on the courthouse steps should entitle you to any kind of protection.
The article claims the recording devices were placed to catch bidders colluding in a real-estate auction. That particular moral high ground is unavailable here.
I believe he or she is pointing out that, while there is currently no evidence that the FBI has violated a defendant's legal rights, their actions could very easily have had this result and that was probably their intention.
I would agree the reproduction is quite possibly a violation of copyright, but this isn't an "appropriation." It isn't as though the OP has placed his or her ads around the text and seized revenue that would otherwise have gone to the original website. The intentions seem to be positive, even if society has deemed that the act itself is unacceptable.
"According to court papers filed Friday, federal agents placed secret recording devices in at least three locations around the entrance to the San Mateo County courthouse in Redwood City without first getting judicial approval."
The part of not getting a warrant is really the problem.
I don't disagree, but isn't it also a problem since they'll be indiscriminately gathering a lot of irrelevant data? It's not like bugging a suspect's house; they're bugging a lot of unrelated people.
Presumably judicial oversight would take these factors into consideration. Lack of judicial oversight allows them to value their own goals over the rights of other people.
Recording cameras on buses also catch plenty of indiscriminate random conversation. These recording devices were placed in a public space, so you have no expectation of privacy. However that doesn't mean that they should be permitted in court or is that the FBI isn't quite rude in having placed them.
It really is up to the judges to prevent tainted evidence and flat out fishing from being made cases of. The method is not unreasonable, in the right circumstances, but the justification and building of a case makes all the difference.
They also don't record sound which is a huge difference. You can try and read people's lips but that's a whole different ball game. Recording voice without explicit consent in California is illegal.
The expectation to privacy and the admissibility of the evidence is closely tied together. The problem here is that I would argue that a reasonable person would not expect that his or her conversation in "hushed voices" (from the article) would be recorded by the normal security cameras located in the public space.
Without knowing the details, it's really hard to say, but it sounds like this was a very targeted operation more similar in nature to bugging the home than to a general purpose security camera catching a glimpse of someone on the street.
The title doesn't paint the full picture of what happened. The bugs were placed near the courthouse entrance at public auctions held at the courthouse. The defense "maintain[s] that their clients had a reasonable expectation of privacy when they gathered to speak in hushed voices away from other auction participants."
Out of curiosity if I wanted to place microphones in random public places and record could I? Isn't it legal to take someones photo in public? So could I also place a camera where I'd like and record people?
While it's legal to take someone's photo in public, because they don't have an expectation of privacy, it's generally not legal to record audio without their knowledge.
It depends on states, but almost every state falls into the classification of one-party or all-party. In one-party states, at least one person being recorded must be aware of the recording. In all-party states, all parties being recorded must be informed.
These laws were originally written for telephone tapping, but my understanding is that they have been used in cases of bugging as well, even when no phone was involved.
almost every state falls into the classification of one-party or all-party.
Doesn't that apply to wiretap laws (e.g. phone recordings, like the Monica Lewinsky case) rather than open-air conversation? For example, I could see how a hack activating their phone microphones and listening that way would be illegal, but open-air conversation?
Yes, that applies to wiretap laws. Everyone (varies with state as mentioned) has to be informed and accept that they are being recorded for the call to be admissible as evidence in a court of law. Without that permission, it will be discarded.
I should add; if this were not the case, then manufactures of modern gadgets would be much less likely to have active monitoring of your microphone, for fear of how that action could be interpreted in court. Siri, what are your thoughts on this?
Hmm... how does that play with video recording? We argue that it is fine to take video in public because of no expectation of privacy, but video implies an audio track too.
Could you, or anyone, cite the USC on this one - that video images only are allowed in public spaces and/or that audio recording is specifically not allowed?
Just curious what the workarounds are really. If the wiretap style "one party" rules were applied then it seems you could just make sure that you get your own audio on there too; or with audiovisual recording you could sit in the shot somewhere and record people so long as you also captured your own voice. It would seem intent primarily to record others (as opposed to it being incidental to the recording you made) would be close to impossible to prove under such circumstances.
Does that vary by state? Yesterday's Bay Area news reports about the suspect beaten after a chase had a private surveillance video recording with audio, made public.
The FBI's apparent courthouse or near-courthouse tapping took place in California. If you placed microphones in random public places in CA, the question would be whether there's an expectation of privacy in a conversation that took place in or near those places.
If someone does have an expectation of privacy in public (which does not necessarily seem clear to me), you would be engaging in unlawful surveillance. Whispered conversations in public may be protected. The language used by CA law is: "circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded." See: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&gr...
In CA, video recording laws are more liberal. That's why you see surveillance cameras all over the place in cities (and increasingly in residential suburban or rural neighborhoods as well).
Depends on the state. Most give a lot of freedom to videotaping people in public spaces but audio is usually stricter. In PA for example, it is illegal.
The bugs were planted to catch people colluding at public foreclosure auctions held at the courthouse steps, it had nothing to do with recording lawyers, juries, or judges.
I like how they start some huge investigation to to try to fix the auctions instead of just building an auction website and opening it up to the entire US public. This would probably make collusion impossible and get better prices for the property.
Does anybody know what the technical specs of the bug microphone is? Is there some equivalent piece of equipment a civilian can buy?
Do the recorders have their own power supply? Their own cellular connection? Are they essentially phones with giant batteries and a good external microphone?
As an aside, it's always annoyed me that cell phones don't all come with built-in call recording capabilities.
Sorry, won't register just to view the article. I also really enjoy how the full site link takes you to a full site of ads and clickbait with zero content.
Though I'm all about civil liberties, and very wary of the surveillance state, this was public property outdoors. I mean no, there really isn't an expectation of privacy there, and no warrant is or should be required in that situation.
EDIT -
Yeah, that's right. Don't respond or disagree, just vote it down. Dear (non-existent) God, echo chambers everywhere, with just different brands of stupid.
Having an agent standing there would be entirely acceptable. Use of surveillance equipment, especially the hidden kind, has always had a higher standard, even in public. So much so that one of the main ethical questions right now regards the use of publicly placed microphones that supposedly can only hear gunshots, in order to triangulate where those gunshots took place.
> Don't respond or disagree, just vote it down
It's faster to produce bullshit ideas than to respond to them civilly, as anyone who has an incompetent coworker can attest to. You aren't owed anything.
This can come back to bite you. Protect recordings in public places from admission and suddenly the only law enforcement is able to admit such evidence, as only they could ever get a warrant before hand (not private citizens). Letting public spaces be fair game for admissible recordings will protect the public because it can be used by the public.
A clear example here being a drone you're flying in a park. With that interpretation only law enforcement's drones' recordings would ever have a chance of being used in court. This is about protecting your right to have equal footing with law enforcement for evidence.
That's grasping at straws. What are the chances you're going to happen to need an alibi for the very moment you were filming yourself with a drone, and your drone just happened to be small enough not to be observed?
I would also submit that the critical factor in this case was the state's use of a hidden camera. We've already agreed that there is no problem with the FBI posting an actual agent on the steps.
Finally, this type of law applies much more to audio than to video. I am allowed to record video to my heart's content. I am only allowed to record a conversation with consent of all parties in my state. But even if I did so, no sane court would prevent me from using such a recording in my own defense.
No sane court? Come on now. If it's inadmissible then it's inadmissible. That's not how the law works. You can either force law enforcement to get warrants for public recordings (which isn't much of a barrier considering the rubber stamping happening now), or you can allow the public to also make such recordings admissible.
I want to have just as much a right to record law enforcement in public as they have to record me. I'm not grasping at straws, I'm arguing for openness rather than privacy in public, which I think is a much better and more achievable outcome.
> Come on now. If it's inadmissible then it's inadmissible. That's not how the law works.
It really does depend alot on who is making the recordings and for what purpose. Incriminating evidence obtained illegally is always bared because the state is in the business of snooping into people's business and needs strict boundaries set. Exculpatory evidence collected by the neighborhood busybody can be allowed even if the recordings were made illegally.
Of course, the Busybody's lawyer may try and get it struck as admitting it would make any civil and/or criminal trial harder to defend against, but that wouldn't necessarily stop them from doing so. Makes it more complex if the Busybody is also the defendant, but then you're trading admission of guilt for a lesser offense (illegal recording) to get you off from a higher offense, like anti-trust type stuff.
And that's also assuming that the people you are recording decide they want to press charges.
Pretty much anything can come back to bite you. You could use your exact same argument with s/public places/private places/.
Also, is evidence gathered illegally by a non-government entity inadmissible? I thought that they would use it anyway, and also prosecute the recording party for breaking that law.
The term illegal is not the same as inadmissible. The recording isn't illegal, and isn't going to get anybody prosecuted for making it. Whether it's admissible is another question, but the article itself states:
"What the government did here is not unlawful only because it occurred outside a courthouse..."
The headline says illegal, but that's not what the term actually means. I know it's semantics, but the argument you appear to be making is that law enforcement broke laws here. They did not. They may have a recording that they can't use in court, but the recording itself is not illegal.
How was it not illegal? California law prohibits recording communications without the consent of all parties unless they have no expectation of privacy. If the argument is that there was no such expectation because they were in public, then what causes the recording to be inadmissible?
The law favors the defense in these situations. If charges were brought against the agents, then the burden of proof would be to prove that they knew there was no expectation of privacy. By challenging whether it's admissible the burden of proof goes the other way and it and to be shown that those speaking did not have a reasonable expectation of privacy. It's a quirk of the law.
I understand that, but you yourself are making the much stronger claim that the recordings aren't illegal. You're saying they're legal but inadmissible, which makes no sense to me.
His or her edit wasn't tactful, but I also think the reply represented a common opinion that hadn't been represented on this thread and deserved the consideration you were good enough to provide. I've seen even well-educated people espouse the belief that anything goes as far as monitoring the behavior of people while in "public." I wouldn't defend this view myself, but it's an idea worth engaging, if only because of its prevalence.
I didn't downvote you, and haven't actually read the article yet - but wiretap laws are pretty clear that it's illegal to perform audio recordings of people without their knowledge, regardless of location and how that applies to an expectation of privacy.
I strongly disagree, but I'm up-voting to get this comment back up where it belongs. Plenty of smart people -- including, I imagine, some supreme court justices -- feel this way, so I don't see any good reason for censoring it as "noise."
In one sense, this is a small thing. There isn't any allegation that the recordings caught privileged attorney-client communication or jury deliberations. But it is an attack on the integrity of the legal system, and it's part of a pattern of attacks on the legal system that adds up to a serious threat to the rule of law.
Defendants are asking for these recordings to be quashed. That is what is customary, but it is not sufficient; there need to be consequences for those who did it and who authorized it. The defendants are only incentivized to argue as far as necessary for their own defense; it is up to the judges to censure the parties responsible.