Search Warrants, The Right to Privacy and Manchester United
How would you feel if a policeman gave you a ticket for driving under the influence because of drinking you did inside your own house with the blinds drawn and the doors locked? Then your drunk driving lawyer tells you that the policeman got the information from listening devices he'd planted in your house because your neighbour liked Manchester United of the Premier Football League in England, and you had extensive conversations with this neighbour. He tells you there's nothing you can do about it.
As with anything to do with a legal situation in which you could lose something important, contact a lawyer. The United States through the Fourth Amendment to the Constitution, Canada through the Privacy Act passed in 1983 and Australia with the Privacy Act of 1988 guaranteed the rights of their citizens against unreasonable search and seizure. In the case above, a lawyer specialising in traffic law could guard your rights in your arrest and trial. Australians living in Brisbane should contact Wiseman Lawyers.
That's what happened to the Associated Press in April and May of 2012. The Department of Justice (DOJ) tapped 20 phone lines assigned to the Associated Press (AP) and the approximately 100 journalists who worked there. The cause for the wiretaps was a story published on May 7, 2012 that identified a CIA operative working undercover on an Al Qaida plot to blow up an airliner. The DOJ stated that the plot was broken up, but the operative was endangered. They didn't know which journalist may have gotten the leak so they listened in on all of the journalists. They went further, obtaining the records for more than 20 office, cell phone and home phones, listing the incoming phone number, the outgoing number and the length of the call.
The fourth amendment to the Constitution says that any intrusion into the private lives of an individual or a company has to be justified before a disinterested third party according to a standard called "probable cause". Probable cause means that a prudent and cautious person can reasonably conclude that enough proof exits in the circumstances of a situation to believe that certain facts are true.
It can't be argued that any one investigation by the DOJ could have developed probable cause to allow for constitutional intrusion on the many conversations carried by those phone lines. It isn't unreasonable to believe that a significant percentage of the individuals on the phone calls were American citizens and that the subject of the phone calls had nothing to do with any foreign affairs.
AP President Gary Pruitt said the breadth of the wiretaps went far beyond any justification based on a single investigation. He charged that the wiretaps could reveal communications with confidential sources across all of the newsgathering activities of the AP. He said that the government had no right to know what was in those communications.
The AP is a multinational news agency owned by its contributing radio, newspaper and television stations. These news outlets contribute stories and use stories supplied by other news sources. The AP is published and republished by more than 5,001 television and radio stations, 1,700 newspapers and has 243 news bureaus in 120 countries.
The wiretaps were legal under the Foreign Intelligence Surveillance Act (FISA) and the FISA Amendments Act (FAA) which authorises warrantless wiretaps in cases where the communications involve foreign governments or individuals. The FAA allows the government to do the wiretaps without naming the individuals who are the subjects of the wiretaps and without getting a traditional probable cause warrant.
For individual Americans, the actions by the DOJ are chilling. If the government has a reason to believe that you have been communicating with a foreign national with the purpose of advancing terrorism, they don't need a warrant, only a review of the subpoena ordering the wiretaps by the U.S. Attorney General. There is no set standard of proof that must be met before the wiretap is approved. Put less formally, the DOJ can tap your phone if you know a foreign language or buy a foreign newspaper or like Polish sausage. There is no recourse. They can't be stopped or questioned after they finish.
Attorney General Eric Holder had to recuse himself at the beginning of the investigation that resulted in the wiretaps because the DOJ considered him as a possible source of the leak. The wiretap subpoenas were authorised by Ronald Machen, U.S Attorney for the District of Columbia under direction of Deputy Attorney General James M. Cole.
At a press conference, Holder presented himself as an outsider who knew nothing about the process that resulted in the wiretaps. He said he could do no more than give vague assurances to the press that those involved in generating the subpoenas and collecting the information were acting appropriately and within agency guidelines. He also stated his trust in the individuals who handled the process. Holder went on the describe the general process as a balancing act between the First Amendment and the need to protect undercover operatives and the national security.
It is common when the government investigates a newsgathering organisation that the agency brings the president of the organisation into the investigation before it begins and develops it with his cooperation. The DOJ didn't talk with the president of AP before installing the wiretaps.
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