Today, we have another guest post from Dan Broderick, who did a couple of guest posts for us back in October. Dan was then the Federal Public Defender in Sacramento, but he retired at the end of last month, so he’s now lazing around at home. Whether he’ll be contributing any more of his legal acumen or instead devoting himself to his retirement dream of coaching high school basketball remains to be seen, but he did leave us two posts before he left which will be going up as this week’s post and another post either next week or the week after.

BLOG BULLETS:

• Remember that one of the basic requirements in the execution of a wiretap warrant is “minimization,” i.e., avoiding or minimizing the monitoring of nonrelevant conversations.
• Monitoring is now sometimes done with computer software that may not minimize as required.
• So seek discovery on how the monitoring was conducted in your case; there may be an issue.

NOW THE BLOG:

Under 18 U.S.C. § 2518(5), wiretaps must be conducted in such a way as to “minimize the interception of communications not otherwise subject to interception. . . .”) The government has the burden of showing proper minimization. United States v. Rivera, 527 F.3d 891, 904 (9th Cir. 2008).

In United States v. Scott, 436 U.S. 128, 140 (1978), the Supreme Court noted that the statute does not forbid the interception of all nonrelevant conversations, but rather “instructs the agents to conduct the surveillance in such a manner as to ‘minimize’ the interception of such conversations. Whether the agents have in fact conducted the wiretap in such a manner will depend on the facts and circumstances of each case.”

In the old, pre-computer days, wiretaps were extraordinarily labor intensive. Law enforcement agencies had to get a court order approving a tap, then monitor the tap at all times in order to minimize non-criminal conversations. That usually meant having several agents do nothing except listen all day to the taps, turn it off when non-pertinent calls occurred, and complete a handwritten log of whatever happened on the tap.

The flood of recent cases where wiretaps are being used strongly suggests that the government is using some other method of wiretapping, as there simply aren’t enough agents to go around. In fact, the FBI and other agencies now rely heavily upon various wiretapping and electronic surveillance programs; programs that do not appear to minimize as required by law, and that have not been examined by the courts. If the discovery in your case does not include logs with agents’ handwritten notes, but instead includes electronic monitoring logs (often referred to as “line sheets”), then the government is using some software program as part of its wiretap.

Unfortunately, defense attorneys are not seeking disclosure of information relating to these programs; thus, the government is able to argue calls are being minimized when they are not. In every wiretap case, you need to discover the name of any software program used in your case. One program is called LINCOLN, operated by Pen-Link. ATF has been known to use this program. Another is Voicebox, which permits the government to identify speakers on the intercepted calls. The FBI uses DCS Net (for Digital Collection System Network). All of these programs are proprietary software programs whose capabilities are usually hidden from the non-law enforcement community. Nonetheless, the extent to which the programs do not minimize the recording of calls is worth examining in every wiretap case.

For example, according to the FBI’s response to FOIA requests, DCSNet is a suite of software that collects, sifts and stores phone numbers, phone calls and text messages. DCS-3000, also known as Red Hook, handles pen-registers and trap-and-traces, surveillance that collects signaling information — primarily the numbers dialed from a telephone — but no communications content. (Pen registers record outgoing calls; trap-and-traces record incoming calls.) DCS-6000, known as Digital Storm, captures and collects the content of phone calls and text messages for full wiretap orders. DCS-5000 (sometimes referred to as Redwolf), is used for wiretaps targeting spies or terrorists.

Together, the surveillance systems let FBI agents play back recordings even as they are being captured (like TiVo), create master wiretap files, send digital recordings to translators, track the rough location of targets in real time using cell-tower information, and even stream intercepts outward to mobile surveillance vans. FBI wiretapping rooms in field offices and undercover locations around the country are connected through a private, encrypted backbone that is separated from the internet. Sprint runs it on the government’s behalf.

The network allows an FBI agent in New York, for example, to remotely set up a wiretap on a cell phone based in Sacramento, California, and immediately learn the phone’s location, then begin receiving conversations, text messages and voicemail pass codes in New York. With a few keystrokes, the agent can route the recordings to language specialists for translation. The numbers dialed are automatically sent to FBI analysts trained to interpret phone-call patterns, and are transferred nightly, by external storage devices, to the bureau’s Telephone Application Database, where they’re subjected to a type of data mining called link analysis.

So how do you determine if you should mount a minimization challenge to the wiretap(s) in your case? My next blog post will address this issue.