FBI Wiretapping Scandal: Am I Reading this Right?

People who remember J. Edgar Hoover's FBI will not be surprised to read FBI broke law for years in phone record searches in today's Washington Post. The illegal searches were justified by fake emergencies. When an internal whistle blower started asking questions, they were justified by illegal (“blanket”) authorizations (the FBI used to accept that search authorizations, even retroactive emergency ones, must be justified in writing and particularized).

Nor will readers with any sense of history be surprised to learn that the FBI says there is nothing to worry about, move along:

FBI officials said they are confident that the safeguards enacted in 2007 have ended the problems.

However, readers who recall the Post when it was a newspaper will perhaps be a little startled that the Post keeps referring to the illegal requests and faked paperwork as “technical” violations of the law. Readers whose memory goes back to, oh, 1972, may also wonder how it is that this fact appears in the next-to-last paragraph of a fairly long story:

Among those whose phone records were searched improperly were journalists for The Washington Post and the New York Times, according to interviews with government officials.

And then there is this gem, which will startle all but the most harden cynic:

lawyers have now concluded there was no need for the after-the-fact approval process.

So, no paper trail next time! (Could this be the new procedures enacted in 2007?)

All that's left is the 5pm Friday night press release that an investigation has determined that no discipline is warranted … except maybe for the whistle blower.

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4 Responses to FBI Wiretapping Scandal: Am I Reading this Right?

  1. karl says:

    Aren’t all violations of the law “technical”? What would a non-technical violation look like?

  2. michael says:

    Lawyers (and others) often refer to violations as ‘technical’ if they are (a) genuinely minor (and, usually, if committed in good faith) and (b) do not involve committing the harm that the law is designed to prevent.

    For example, suppose there is a requirement that people who do a certaing thing annually submit filings signed under penalty of perjury, sent to Box 1000 at some address, and postmarked by Dec 31. Alice does everything right, but accidentally addresses the envelope to Box 10000. This is a technical violation of the rule. Depending on how serious the rule is, even a technical violation can sometimes be serious; but sometimes it just isn’t, and reasonable proprietorial discretion will just let it be.

    Failing to sign might not be a merely technical fault, as the legal consequences for lying would change and it’s harder to see it as an accident (in good faith); then again, if everything in the statement were true, some folks might let that go too, although it’s much closer to the line and maybe over it.

  3. technical says:

    Ch. 3. Electronic Surveillance — Non-Wiretap

    3.11 Suppression is generally not available as a remedy
    westlaw query 18+S 3121(A) & “EXCLUSIONARY RULE”

    “As set forth above, as a general rule, to legally install or use a pen register or a trap and trace, one must first obtain a court order under 18 U.S.C. § 3121-3127. A ‘knowing’ violation of the statute can trigger criminal sanctions. See 18 U.S.C. § 3121(d). However, the statute does not prescribe suppression of evidence as a remedy for its violation; nor is a violation of the statute, in and of itself, a violation of a constitutional right. United States v. Thompson, 936 F.2d 1249, 1252 (11th Cir. 1991) (‘Implementation of a judicially imposed exclusionary remedy for a violation of these congressionally mandated [pen register] procedures would be out of proportion to the infraction… Absent either a constitutional or statutory basis for excluding the evidence obtained through this [pen register] procedure, the district court correctly denied the motion to suppress.’).”

  4. michael says:

    Probably a different statute from the one at issue, though. See Orin Kerr, Did the FBI Violate ECPA By Improperly Obtaining Call Records in Terrorism Investigations? for more.

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