Wednesday, April 19, 2006

The Whole Earth Guide to Wiretaps

Wiretaps have proven international narcotics conspiracies and broken terrorist rings. They have convicted murderers and saved many lives. Wiretaps deliver evidence unobtainable by any other means. Yet as a society we view them with a certain queasy suspicion. We regulate wiretaps heavily, and endlessly debate the public policies that govern them. Wiretaps are the world's most intrusive investigative tool.

Contrary to the impression conveyed by Hollywood and the media, wiretaps are fairly rare. The vast majority of police officers and prosecutors go through their entire careers without ever working with one. Unless you or a close friend or relative are involved in a very serious criminal conspiracy, it is highly unlikely that you will ever be eavesdropped upon by the police.

Eavesdropping from your friends and neighbors, however, is another proposition altogether. Just walk into the neighborhood spy shop and see what's flying off the shelves. This ingenuity dates back to the early days of the telephone network. See, for instance, the 1918 case of State v. Beringer 10 Ariz. 502 (Ariz. 1918), in which an enterprising Arizonan placed a "dictograph" over the transom of a hotel room in order to spy on phone conversations. The Arizona Supreme Court found that conduct "most reprehensible," but, unfortunately, it was not in violation of an earlier state statute against tapping telegraphs. This was a classic case of a defendant getting off on a high-tech technicality. Obscure semantic distinctions are still very much a part of wiretap law today.

The basic rule defining eavesdropping is: Thou Shalt Not Intercept If Thou Art Not a Party. A "party" is a person speaking or being spoken to, or the sender or receiver of a fax or email. This means that you may not hook up a hidden tape recorder to your ex's phone, even if you yourself are paying for the telephone service. Nor are you to clone your coworker's voice mailbox. You shall not use a data sniffer to grab other people's keystrokes on the fly.

If a party consents to the interception, then it's not an "interception," it's just the recording of a message legitimately passed to a person meant to receive it. The federal rule and the rule of many states is "one party consent," though some states require consent from all parties. A legitimately recorded phone call is not eavesdropping. Police do not require a court order to listen to this evidence.

Police do have to get a court order permitting interception without consent. Only certain prosecutors specified by federal or state law can apply for these court orders, and only certain courts may grant them.

Police must satisfy the court that they have all the probable cause necessary for a search warrant, and that they have exhausted other less intrusive means of investigation without success, or that it would be too dangerous to try them. Wiretap paperwork is detailed, technical, and in a complex case can easily run fifty to a hundred pages. Communications obtained in violation of the statutes cannot be introduced in court in any proceeding--except if the defendant has engaged in some illegal eavesdropping, in which case this can become legal evidence against him. (For this reason, your secret tape recorder will be of no use in your divorce, and may cause you even greater grief than your ex did.)

A Lifesaving Wiretap in Action

In Arizona, Ira Evans was on trial for shooting up a houseful of women and children. His first trial ended in a mistrial--the star witness was to testify, but at dawn that morning one of Ira's pals fire-bombed her house. Somehow, she and her children escaped. She then went into a witness protection program.

Still in jail, with his trial beginning again and unable to get to the witness, Ira decided to kill the prosecutor. (Hint: this is seldom a truly good idea.) The cops were tipped off by the girlfriend of one of Ira's accomplices, and an emergency wiretap began. (These are cases in which the phone company and police scramble to get the equipment up and working, while the legal team has forty-eight hours to get the court order.) Technical problems often ensue between the phone company and the police, but luckily, within two hours of the "go" decision, the wiretap was up. I say "luckily" because the very first call intercepted was a "Class 1" call.

Police divide their wiretapped calls into types. Class I is a call directly relevant to the crime under investigation. Class 2 is a new crime, which generally means going back to court for an amended wiretap order. Class 3 would be useless junk such as a hang-up call.

Even with automated modern equipment, these judgement calls can be onerous. Is the call incoming, outbound, or three-wayed? Who are all the parties? lust staying on top of the action can burn out a wiretap listener (known as a "monitor") in a matter of minutes. Profanity, broken police pencils, and frenzied calls for a backup "relief monitor" are customary signs of a really "active" wiretap.

Ira's case was a particular monster because he was calling collect from his jail, then three-waying through an accomplice's phone that was equipped with call-waiting. Nevertheless, his very first recorded call had him plotting with an accomplice to kill his prosecutor. However, Ira Evans's right to a fair trial still had to be protected.

Therefore the team built a "Chinese wall" to keep the wiretap information from tainting Ira's trial for assault. Though the prosecutor knew nothing about results from the wiretap, he suddenly found himself with police protection. Police were able to video Ira's hit men as they entered the county building to search out the prosecutor's office.

A week's worth of Ira's wiretapping revealed not just the murder plot, but a perjury scheme for a new alibi, and (rather unexpectedly) a massive, multi-player, financial fraud under way.

Wiretaps do have a certain humor to them. Drug dealers trying for creative codes can find themselves later explaining to a jury why they wanted to buy "half a shirt" or "three tires." One genius was so frustrated at his supplier's denseness about "opera" and "symphony" that he finally yelled at him, "Man, I want some cocaine!"

Ira Evans' murder trial hit a particular high point when one of his tapes was played to the fourteen members of the jury. Over the prison phone, he'd been coaching his alibi witness to commit perjury, so he had to explain the general setup inside a courtroom. "Well, there's the judge, then there's me and my lawyer, and there's the prosecutor, and then they bring in about a hundred m* * * f * * * g fools and they pick some." The jury found him guilty.

Hands-on with the Hardware

Whether they're analog or digital, modern wiretaps are designed to do specific things. They keep track of call detail data, including the numbers called and the length of calls. They log every "call event," even if only a hang-up. They create a record every time the monitor is listening or recording--and they make it impossible to listen without recording. Police wiretapping equipment is designed to prevent mistakes or illegal use. Monitors are required by law to minimize interception of innocent conversations, so it's critical to document times when no one is listening.

Some manufacturers record the audio as digital .way files, using encryption algorithms to ensure the integrity of each stored call. To gather evidence to support a wiretap, police may employ other related gizmos. A court-ordered "pen register" or "dialed number recorder" (DNR) can keep track of numbers dialed from the subject's phone, though it cannot overhear the conversations themselves. A "trap and trace" device can collect the numbers of the phones calling in.

These devices give police information about calling patterns, not the call content, but patterns of phone behavior are useful anyway. A software package long favored by police for these logging and analysis functions is "PenLink" (www.penlink.com). In the hardware arena, JSI Telecom (www.jsitelecom.com) supplies DNRs, intercept devices, and various arcane accessories with names like "multi-line dial-up slave system" and "digital trunk interface." JSI's VoiceBox III[TM] is a rather sophisticated multimedia system that allows discovery copies to be delivered to the legal defense on fresh-burned CDs. Many officers favor Marantz tape recorders for analog recording. Recall Technologies in Palm Bay, Florida got a plum contract to supply DNRs to the DEA for the Colombian government. Its product supports up to six DNRs on a single personal computer, and they offer interception support as well (www.usdoj.gov/dea/acquisitions/acquisitions.htm).

Another source of surveillance equipment is Jarvis International Intelligence, Inc. (www.jarvisinternational.com/teleint.htm). This company runs an outfit called "The Academy" that trains law enforcement on such vital matters as "pair identification" (it's a serious blunder to tap the wrong phone line) and "listening post operations." Operations are truly critical, for if it's not done right, all the evidence gets suppressed and all that effort and expense goes down the drain.

Original Article by Gail Thackeray

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