The FBI got permission to listen in on the conversations of the leader in prison to his gang. This is where I have a problem because I know for a fact that after the Watergate incident that listening in on any conversation at least one of the people need to know that they are being recorded and in some states both parties of the conversation need to know that they are being recorded. This is our constitutional liberties of privacy at stake here even if you are serving time in prison you are afforded rights by the Constitution. So how does any government justify running over our rights as Americans? I think the Patriot Act is a travesty of our rights. That it has completely done away with the Constitution under the guise of protection. This law needs to be repealed by the people.

FBI general counsel Valerie Caproni said in an interview Monday that the FBI technically violated the Electronic Communications Privacy Act when agents invoked nonexistent emergencies to collect records.

The giant scare headline is not supported within the story itself. If, in fact, FBI agents did lie, the story absolutely fails to describe when and how that happened. I suggest that the writer/reporter does not understand the either the mechanics or the underlying law for obtaining such records. It sounds very much like individual agents, unreasonably burdened – as usual – by a hidebound and scared-of-its-own-shadow internal chain of command, took an available short-cut in the interest of obtaining information sometime before the next decade, and then failed to document the basis for the short-cut. It is unclear that there is a statutory mandate for such documentation – it appears that there is not – and a violation of internal FBI policy would not be “illegal” as the headline screams.

It does point to a systematic problem within the FBI data collection procedures, but anyone familiar with the Bureau could have predicted the same for almost any operational function of the FBI, save perhaps their Public Relations machinery.

“You have to wonder what Professor Kerr was thinking…”

He may be an Interpol secret agent. Better call Chuck.

The newspaper reports that the FBI lied about the existence of terrorist emergencies to speed up its investigatory activities.

Professor Kerr responds with a thousand word plus post about whether that mendacity can be effectively imputed to the telcos under some complicated law.

I mean, you really have to ask yourself: is this the appropriate basic reaction to this story. How can one read the story and not think:

OMG! The FBI lied! And they didn’t just lie to some terror suspect. They lied for the purpose of subverting some 4a type protections! This is bad! Who cares what the law is! We have a problem! We can’t have the FBI lying. That is the 800 lb. uncheon in the room here. A lying FBI basically means that we need more judicial oversight of them because it means we can’t be trusted. What exactly were the lies? Did the telephone records end up being evidence in any trials? How about on any warrant applications? Did the FBI tell similar lies for other investigatory activities? How can we find out? As a Constitution buff, I am profoundly interested in how that oversight can best be beefed up because the current law is clearly not working.

This isn’t what Professor Kerr did at all. You have to wonder what Professor Kerr was thinking when he chose his odd tangent upon which to go off for this thread. Certainly a lot of the posters seem to be into the arcanum he is getting into, but the whole discussion seems to miss the obvious and important point of this particular story.

Considering the extremely low threshold to be met to subpoena telephone records, this really does not sound like much of an issue.

Assuming that telephone records is the only thing that the FBI got by using fake emergencies.

If the FBI was willing to lie about exigencies to get phone records, it suggests that they might have been willing to lie about exigencies to do other search and seizure type activities that we don’t yet know about. This isn’t an issue because of telephone privacy. Telephone privacy is illusory. Rather, this is an integrity issue. The article says:

“FBI officials said they thought that nearly all of the requests involved terrorism investigations.”

Is that a lie, too? Sounds suspiciously qualified. Of course, even if many, or most, of the (now admitted) FBI lying did relate to plain old, non-terrorist crime, it is no skin off anyone’s nose as long as it is just phone records. But a real concern is raised here, and that is that the FBI has created fake emergencies to get sneak and peak warrants. The concern is that the lying is not limited to the lying that the FBI currently chooses to admit (in order to get the Washington Post off its tail presumably).

the article says:

FBI general counsel Valerie Caproni said in an interview Monday that the FBI technically violated the Electronic Communications Privacy Act when agents invoked nonexistent emergencies to collect records.

Professor Kerr characterizes this as:

A second possibility is that the FBI was making false statements in the exigent circumstances letters themselves.

It is respectfully submitted that this is a mischaracterization because it is not a “possibility” that the FBI was making false statements, but a “certainty” — the FBI spokesperson herself made an admission against interest to this effect to a major newspaper. That means the lies happened. And the FBI lies are the only thing that makes this story interesting at all.

Sometimes I get the feeling that the Professor Kerr threads have a youngish, thoroughly-post-Watergate readership. Limited hangout anyone?

It’s not as though the FBI would have had any difficulty at all in obtaining the records, had they just followed procedures.

Far more disturbing (to me) is that even after all of the hoopla and talk of making terror investigations more efficient, of centralizing and streamlining our Homeland Security, etc, that FBI agents still can’t figure out how to safely and legally obtain common business records in a timely fashion.

If individual agents made an end run around internal FBI policies, because those policies prevented the timely capture of required data, who do we blame for that?

BTW, 18 USC 2703 (c) (1) & (c) (2) describe the non-national security procedure. It illuminates how simple it is to get these records. Link HERE.

I was speaking about the assertion by 3rd party, i.e. the phone company, in civil litigation that some law had not been complied with in seeking the information.

The lesson I got from the post (and that’s really all I know about this), recent developments have substantially neutered the phone company as an independent check. First, the standard was changed from “reasonable” to “good faith”. Second, we’ve gone from a situation in which the phone company independently developed a concern and reported it to the FBI, to one in which the FBI develops the concern and passes it to the phone company, which then relies on the FBI for it’s request to turn over the material (an offer I doubt the company can or would refuse). The current structure therefore doesn’t, IMO, interpose any independent determination into the process.

I think requiring prior approval for lesser requests, e.g. so-called ‘envelope’ information, cheapens the effectiveness of prior restraint all around.

It’s my lack of faith in after-the-fact remedies which leads me to disagree. Again, though, it depends on just how much abuse we expect. In the long run, I expect a lot.

Mark Field: I am skeptical that these types of review serve the same function as prior approval by a neutral agent.* Congressional review is hollow and pointless IMO; I’ve seen how that works all too often lately. As for civil suits, I can see that being effective in a few cases, but for the most part I’d analogize it to the argument that we replace the exclusionary rule with civil suits; I’ve never been able to come up with an answer to the question Anthony Amsterdam asked me 35 years ago (paraphrasing): “What jury will give damages to a convicted criminal?”

*I’m certainly aware that the prior approval of search warrants can best be described as pro forma, which is why I phrased my first post the way I did. It’s possible that there is no solution, in practice, to the problem I see.

I was speaking about the assertion by 3rd party, i.e. the phone company, in civil litigation that some law had not been complied with in seeking the information. And of course the phone company would have an interest in pusuing such cases to the extent that it might find itself the subject of actions by its customers whose records it had disclosed.

I agree that civil suits by criminals complaining about the finding of evidence against them might be a less serious check. – again, assuming that the conduct did not transgress the 4th amendment.

While I agree it is a good idea for the public to try to keep an eye on law enforcement, I don’t necessarily agree on the merit of expanding the realm of information that requires prior approval. We agree that search warrants are largely pro forma. I think requiring prior approval for lesser requests, e.g. so-called ‘envelope’ information, cheapens the effectiveness of prior restraint all around.

So, the important policy seems to be that government record the basis for obtaining the information and, in then the motives and appropriateness of the undertaking can be debated in the after effect. Is the motive truly spoken. Did it suffice as a pretext for obtaining the subject information. Not everything requires prior restraint. Rather I would expect Congress and the citizens to audit such processes to gain some understanding of whether law should constrain them further.

One supposes that the law could require a warrant in cases where the constitution does not, and that would add the third party [or third branch] to the mix and reflect the seriousness with which the legislative branch perceives the invasion of privacy. But these were not such cases.

Brian

But in this case, there is nothing — other than common sense — to stop Congress from holding oversight hearings and making a federal case out of this. So the check is present even if this type of oversight of law enforcement itself will be fraught by the general rule that law enforcement has the first order responsibility for reacting when the law has been broken and generally has discretion whether or how to prosecute such cases.

The threat of political reaction, as well as the possibility or judicial intervention — say by civil suit invoked by one of the parties asked for the information, does serve as interbranch checks even if they were not instituted to date.

I don’t disagree with this (subject to uncertainty whether there actually is a civil remedy for violations of the statute), but I am skeptical that these types of review serve the same function as prior approval by a neutral agent.* Congressional review is hollow and pointless IMO; I’ve seen how that works all too often lately. As for civil suits, I can see that being effective in a few cases, but for the most part I’d analogize it to the argument that we replace the exclusionary rule with civil suits; I’ve never been able to come up with an answer to the question Anthony Amsterdam asked me 35 years ago (paraphrasing): “What jury will give damages to a convicted criminal?”

*I’m certainly aware that the prior approval of search warrants can best be described as pro forma, which is why I phrased my first post the way I did. It’s possible that there is no solution, in practice, to the problem I see.

When I was at the BU, we submitted Certification Letters to one Federal Agency all the time until an agent realized the policy was inaccurate and got our Section to change the policy to reflect the requirement of NSLs in those situations. Probable cause still existed during this timeframe, however…it was just the form & process that changed and the turnaround time increased as a result.

None of these are violations of the 4th Amendment when probable cause still exists and that is reflected in all internal records in the BU’s casefile system.

I would not doubt that the same applies to the above-mentioned article…despite the exigent circumstances letter being used, the FBI still has to document probable cause internally in the case file before the US signs off on the request of these records. The only difference, when the volume of work is as high as I remember, is the letter is much quicker to submit than NSLs. NSLs require the signature of the OGC (Office of General Council), which requires more wait time than getting one’s UC (Unit Chief) to sign a Letter. The OGC doesn’t second-guess what’s written in the NSL, unless extremely suspect…it just causes a funnel effect through a single office when records need to be pulled in a more timely fashion.

As much as I believe in bureaucracies acting more slowly, I prefer the opposite when it comes to CT cases. In order to ensure the IC can keep up with terrorists and work to anticipate their next moves, this kind of access is vital…I know of no person within the IC who desires to violate the Constitution or US Citizens’ rights during their efforts to keep us safe.

The amazing thing is that he managed to turn this into a job as a talking head on TV on legal issues.

Marcia Clark and the black male prosecutor (whose name I forget) also are seen on TV giving their “expert” views.

When they should only be saying “do you want fries with that” on their job.

I think Professor Kerr’s point is that while it is perfectly legitimate to disagree with Supreme Court Fourth Amendment doctrine, it is incorrect to say that these governmental actions raise Fourth Amendment issues when current doctrine holds they are not searches.

They do raise some statutory issues, and Professor Kerr’s post takes a pretty comprehensive look at those issues.

Personally, I’d favor a much more privacy-protective legal doctrine in this area, both in terms of the Fourth Amendment and statutory law. But Professor Kerr was trying to be descriptive, not prescriptive, and descriptively, this is his area of expertise and he’s telling you there aren’t any Fourth Amendment issues raised by these actions that he can see.

zuch: Yes. See, e.g., Mark Fuhrman at the Brentwood estate.

The amazing thing is that he managed to turn this into a job as a talking head on TV on legal issues. And, worse, I, and a lot of others (including much of the Black community) never bought his exigent circumstances story. Rather, I always saw it as the cops being lazy, and then making up their story after the fact when they actually (maybe) found something and the case got national prominence. The judge bought their story, so the evidence was admitted. I just never did buy it.

Mark Field:
In general, I think of a “check” as an external control on behavior, not one internal. An external check would require someone outside the Executive Branch to evaluate the validity of the search/“request” before it’s undertaken/complied with.

Mark,

This check is external to the parties who took the action. It is not, I agree, external to the executive branch and I believe that the classic political checks and balances are not [yet] in play. But this seems to me to be a time Napalitano could actually say “the system worked”.

Your concern about checks goes to the question of whether there are other, possibly more flagrant, violations that no one feels like telling us about.

That, of course, is possible.

But in this case, there is nothing – other than common sense – to stop Congress from holding oversight hearings and making a federal case out of this. So the check is present even if this type of oversight of law enforcement itself will be fraught by the general rule that law enforcement has the first order responsibility for reacting when the law has been broken and generally has discretion whether or how to prosecute such cases.

The threat of political reaction, as well as the possibility or judicial intervention — say by civil suit invoked by one of the parties asked for the information, does serve as interbranch checks even if they were not instituted to date.

Brian

2. I think that even if 4a is deemed to be categorically inapplicable to requests for divulgation of phone records, there are still due process concerns based on the fundamental values upon which 4a is based. This is why they inititially put in a “reasonable belief” requirement in there, and why they replaced it with a “good faith” requirement (instead of excising the “cause” requirement entirely). I think replacing “reasonable belief” with “good faith” was horse puckey, not only because it is not good enough under Constitutional standards, but because I think it was done for reasons other than the asserted reasons (eg, catching terrorists, overworked spies). The unConstitutionality and the dishonesty of the pretext both bother me a bit, and this makes me call a new round of horse puckey over and above what was done in the 1970s. If anything the dishonesty of the pretext should be a cause to re-evaluate Smith v. Maryland instead of expanding it.

3. All that said, horse puckey happens. We can’t clean up all the horse puckey in the world. Some horse puckey, you just leave on the trail and step around it. I put illusory telephone and email privacy in this category. Your telephone calls and emails are not private anymore, at least not from the government. Best to just accept that and move on. So while you might bristle a bit at me calling shennanigans on the FBI and courts here, I am also saying that what is going on here is ultimately okay with me. I don’t have to like it, but I am not suggesting that anybody do anything about it. I did use it as a handy excuse to explain the difference between “exigency” and “cause” for pedagogical purposes. Life handed me some horse puckey and I am trying to grow a rose graden here. Sometimes that is as good as it gets.

So your view is that there are no Fourth Amendment issues based on existing Supreme Court decisions, but the Supreme Court got it all wrong back in the 1970s, and you think that the FBI is violating the Fourth Amendment that should have been recognized but wasn’t, making the FBI and Supreme Court’s view of the Fourth Amendment “horse puckey”?

I see.

I think that a wiser approach is to give up the ghost on telephone and email privacy and use that as sort of a bargaining chip to bolster privacy in other more important areas (like better regulation of Terry frisks, requirements of viddying non-spontaneous SWAT raids, like automatic compensation for victims of fruitless searches, like more scientific testing of drug dogs, right to video record police, etc., etc., etc.). There are so many real 4a type problems that have recently emerged in the US that telephone and email privacy is “the wrong hill to die on.”

I just hate to see email / telephone privacy law being used as it is here, which is: let’s get the public used to the “good faith” standard so that we can start importing that more and more into person and dwelling searches. Since this liberalization of email and telephone searches doesn’t seem to have netted many terrorists, and because they didn’t even bother to catch a terrorist that they were specifically warned about, I don’t think this telecomm law is really about catching terrorists at all. I think it is REALLY about drip-drip-drip style erosion of 4a. And I think the correct counter-strategy is to let the policemen have our telephones, but to barter this permission for better protection against being felt up by their filthy hands.

“Because the FBI told me so” probably satisfies good faith, but perhaps not reasonableness. In the Fourth Amendment context, “good faith” comes from Leon, which provides a fairly broad exception to the exclusionary rule when the police act in response to a facially valid warrant. I think judges are likely to interpret “good faith” in ECPA by analogy to Leon, which probably means the provider doesn’t need to know the underlying facts. How a judge would have interpreted reasonableness is harder to know, but it’s conceivable that judges would’ve required some knowledge of the facts.

A slight disagreement: Leon’s good faith standard is objectively reasonable good faith, not subjective good faith. As the Supreme Court noted in Herring, it’s actually a misnomer to call it “good faith”, as it’s not a subjective standard (as the phrase seems to imply). So I think the old standard was Leon, and the new standard is presumably subjective good faith. Subjective good faith doesn’t require any understanding of the underlying facts: It’s just a subjective question (albeit the subjective belief of a corporate entity, which is sort of a weird inquiry).

Warrantless 4a searches require probable cause. Sometimes people, accidentally or on purpose, forget that I think.. . .

Oh, we are so backlogged with work that we can’t get warrants anymore! Waaaah! We have enough manpower to fight decade long wars in Iraq and Afghanistan, sure, but this thing with the warrants is killing us. We need special laws to get around the warrant requirement. We need the warrant requirement to not exist. Needless to say, this is horse puckey.

There are no Fourth Amendment issues here at all, Buddy. These are call records that are not protected by the Fourth Amendment under Smith v. Maryland. In the argot of the Fourth Amendment, no “searches” are occurring here, and therefore there is no warrant requirement or any cause requirement. Thus the “horse puckey” is your own.

it seems entirely possible that this is an example of michael kinsley’s dictum that the scandal isn’t what is illegal, but what is legal.

I have to dissent from that point of view. Given that we’re talking about a technical violation of the law without constitutional implications, and that the method was flagged internally and now being subjected to external review to see if any discipline should accompany it seems like a reasonable check given the character of the purported violation.

In general, I think of a “check” as an external control on behavior, not one internal. An external check would require someone outside the Executive Branch to evaluate the validity of the search/”request” before it’s undertaken/complied with.

Buddy Hinton: What modern policeman likes to do is to ignore the “cause” requirement with the “exigency” requirement.

Yes. See, e.g., Mark Furman at the Brentwood estate.

Cheers,

Buddy Hinton: It is different in another key way. Warrantless 4a searches require probable cause.

No. See, e.g., Terry. I disagree with this, but that’s the way it (currently) is.

Cheers,

But can you please explain what the difference is between a “good faith” belief and a “reasonable” belief that “that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information.”

Is a good faith standard looser, and easier to meet?

Good questions. I’d like to take a crack at this because I think a lot of people are confused about this. With an exigency type search, there are two separate questions that should be considered:

1. EXIGENCY: Somebody thinks something bad is going to happen: how bad is the bad thing? The is sometimes called the “exigency” requirement so long as the proposed bad thing is bad enough. Suspicion of a ticking nuclear bomb is an example of an extreme case of exigency.

2. CAUSE: Somebody thinks something bad is about to happen: how likely is it that the bad thing will come to pass absent the search. This is sometimes called the cause requirement. Let’s say I suspect that you have a nuclear bomb in your apart because I overheard you say “sometimes I think we need to nuke this terrible city and start over” to a friend at a bus stop. This situation has high exigency, but low cause. At least traditionally, the authorities could not search your apartment or coerce consent of your phone records on this basis. Sure, the possible harm is terrible. This guy is threatening to nuke the city. It is possible that he means it. But, without more, the cause is just too low.

PROBABLE CAUSE / REASONABLE BELIEF: The probable cause standard of “cause” (from the Constitution) and reasonable belief standard of “cause” (from case law) are widely considered to be the same thing. I would argue that reasonable belief is actually a bit more stringent. In order to explain what these standards mean, it is helpful to think of them initially in terms of a coin toss. I flip a coin. Do you have probable cause that the coin will come up heads? Can you form a reasonable belief that the coin will come up heads? The answer to both questions is “no.” There is not probable cause because it is likelier that the coin will either come up tails or come to rest leaning against a wall than it will come up heads. Therefore, heads is not probable, therefore, no probable cause. With reasonable belief, it would not be reasonable to form an affirmative belief that the coin will come up heads. Somebody could subjectively believe it will come up heads, but, the REASONABLE thing to believe about a coin toss is that there is an insuffcient basis to form a belief about the outcome. Now, if we start weighting the coin: (i) probable cause would be met right away; and (ii) at some point it would become reasonable to believe that the unweighted face would prevail. As a last major point under this head, it is noted that most real life situations aren’t as susceptible to reduction to numerical probabilities as is a coin toss. This leads to a lot of mischeif by well-funded prosecutors and poorly paid criminal defense attorneys. Let’s take the situation with Professor Gates last summer as an example. Knowing what Officer Crowley knew when he was at Gates’ front door, we would have a tough time assigning a numerical probability that Gates was a burglar and not a rightful occcupant of the dwelling. However, we can ask the question: would Crowley have believed that Gates was more likely than not a burglar. The answer to that question is meaningful from a “cause” perspective both because it is reasonable for a reviewing court to make a conclusion at this very rough level of granularity, but also because, if the answer is “no” then there was no “probable cause” and there was no “reasonable belief.” We can get a dispositive answer, even in the face of unavoidable probabilistic uncertainty. Under this construction probable cause / reasonable BELIEF becomes a meaningful constraint on the policeman’s conduct, just like the Framer’s intended (even back in those halycon days before there was an army of policeman constantly looking to push search and seizure to the limit as a full-time job with excellent benies).

GOOD FAITH: To answer your question, good faith is a lot looser. To go back to the coin for a second, it is “good faith” if someone subjectively believe the coin will come up heads. For example, if they believe that it is likelier to come up heads because it has come up tails the last 10 flips, then they are wrong, but (unless they are trained in statistics) acting in good faith. If the person thinks the coin will come up heads because they think they are psychic, then they are acting in good faith. Policemen like the good faith exception to the Fourth Amendment. Liberally applied, it wipes the amendment right out of existence. It was a big and bad change to the telecom law when they switched the statutory cause standard from “reasonable belief” to “good faith” in 2006.

THE MODERN POLICEMAN’S GAMBIT: What modern policeman likes to do is to ignore the “cause” requirement with the “exigency” requirement. In exigency situations, the modern policeman will say that any “cause” requirement is subsumed in “exigency.” For example, one recent trend is that policeman will now come into a house if they hear a scream inside. That did not used to happen back in the old days. Back in the old days, the analysis ran thus: usually people scream for reasons other than the fact that serious bodily injury is being visited upon them. Therefore there is no probable cause, therefore, the policeman stays out. Sure, the policeman can knock at the door, but if nobody answers, then he needs to stay out, despite the fact that an urgent situation may exist. The modern analysis is different. Under the modern analysis, the scream could be indicative of a gigantic number of child rapes and murders (and it certainly could be). Therefore the exigency requirement is met because the harm sought to be prevented is so, so, so high. So the policeman goes in the house and then arrests anybody in the house brazen enough to tell the policeman to go get a warrant. This is the practical effect of ignoring the “cause” requirement when applying the exigency exception.

THE MODERN FED GOV GAMBIT: Oh, we are so backlogged with work that we can’t get warrants anymore! Waaaah! We have enough manpower to fight decade long wars in Iraq and Afghanistan, sure, but this thing with the warrants is killing us. We need special laws to get around the warrant requirement. We need the warrant requirement to not exist. Needless to say, this is horse puckey.

I think you’ve hit the nail on the head. “Because the FBI told me so” probably satisfies good faith, but perhaps not reasonableness. In the Fourth Amendment context, “good faith” comes from Leon, which provides a fairly broad exception to the exclusionary rule when the police act in response to a facially valid warrant. I think judges are likely to interpret “good faith” in ECPA by analogy to Leon, which probably means the provider doesn’t need to know the underlying facts. How a judge would have interpreted reasonableness is harder to know, but it’s conceivable that judges would’ve required some knowledge of the facts.

Why did Congress change this? I’m not sure, but I bet the providers asked for the change.

And, you probably know this, but Congress changed the content emergency exception (now (b)(8)) from reasonableness to good faith years before they changed the non-content emergency exception ((c)(4)). See this page for a good recap. So for almost four years, there were split standards. Explain that to me!

Mark Field: Seems to me the real issue here is the lack of any effective check on either prosecutors or the FBI. Whether that’s important depends, I guess, on how much you trust them.

I have to dissent from that point of view. Given that we’re talking about a technical violation of the law without constitutional implications, and that the method was flagged internally and now being subjected to external review to see if any discipline should accompany it seems like a reasonable check given the character of the purported violation.

But can you please explain what the difference is between a “good faith” belief and a “reasonable” belief that “that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information.”

Is a good faith standard looser, and easier to meet?

Would “because the FBI told me so” meet the standard of “good faith”?

Does reasonableness require that the telco actually learn what the exigent circumstances are?

Do we have any idea why the statute was changed?

But exigent circumstances here is different from in the Fourth Amendment setting in two key ways. First, the government doesn’t actually conduct the search; instead, the government persuades the provider to disclose. Second, disclosure is optional, not mandatory. That is, the provider can disclose if it has that good faith belief but need not do so.

It is different in another key way. Warrantless 4a searches require probable cause. Sometimes people, accidentally or on purpose, forget that I think.