Case o' The Week: (Roving) bug infestations - Oliva and Title III Wiretaps

Sure, feds listen to your cell phone calls – but only when you’re making a call, and not after you’ve hung up – right?

Right.

(As long as you’ve completely turned off the cell’s power, removed its battery, and maybe dropped the phone in a bucket of water for good measure).

 United States v. Oliva, 2012 WL 2948542 (9th Cir. July 20, 2012), decision available here.

The Hon. Raymond C. Fisher

Players: Decision by Judge Fisher (left), joined by Judges Paez and Clifton.

Facts: Oliva was a target of a Title III wiretap. Id. at *1. The broad language of the wiretap order allowed monitoring of specific cell phone numbers, and of background conversations, and of subsequent numbers assigned to the phones’ ESN and/or IMSI. Id. at *3. Oliva moved to suppress the proceeds of the wire, arguing that this broad language allowed for “roving bugs” and “roving wiretaps”: interceptions that require higher Title III showings and authorizations than found in the wiretap orders. Id. The district court denied the suppression motion.

Issue(s): “Oliva appeals the district court's denial of his motion to suppress evidence obtained from a series of electronic surveillance orders authorizing interception of communications over cellular phones . . . . Oliva contends these orders by their terms authorized more than ‘standard’ intercepts, permitting more intrusive ‘roving’ intercepts without meeting the statutory prerequisites of § 2518(11). Specifically, he contends that the orders in essence authorized the government to transform the cellular phones into roving electronic bugs through use of sophisticated eavesdropping technology.” Id. at *1 (footnotes omitted).

Held: “We agree that if the government seeks authorization for the use of new technology to convert cellular phones into ‘roving bugs, it must specifically request that authority, the court must scrutinize the need for such surveillance and the authorization orders must be clear and unambiguous."

Of Note: Oliva didn’t admit that it was his voice intercepted on the wires. Id. at *1. Did he have standing to challenge the wiretaps? In a welcome holding, Judge Fisher explains that he does. Id. at *2. Title III allows any aggrieved person to move to suppress the proceeds of a wiretap. Id. (citing 18 USC § 2518). Under the statute, an aggrieved person includes those named in the wiretap order. Id. (citing 18 USC § 2510(11)). Therefore, “A person named in a surveillance order as the subject of the surveillance thus has standing to challenge the warrant’s sufficiency.” Id. at *2. 

Remember Oliva when battling a wiretap: if your client is named in the order, you DO NOT have to concede it was his or her voice captured to have standing for your Title III challenge.

How to Use: There are “standard” Title III wiretaps, and there are “roving bugs” and “roving wiretaps.” Id. at *3. Judge Fisher helpfully explains the difference between these three interception methods: the latter two require enhanced Title III showings and higher levels of approval. Id. In essence, “roving” Title III interceptions allow broader interceptions with less-restrictive “specification” requirements – i.e., the tap isn’t tied to a specific landline, but can follow cell phones, for example, or various phone booths. Id. at *3-*4. 

In a terrifying argument, Oliva explained how the Feds can transform a cell phone that is “off” into a microphone – and use cells to intercept background conversations even when no call is underway. Id. at *4. Because Oliva couldn’t prove that happened here he lost his appeal. Judge Fisher, however, makes it clear that if the government were to use this technology it must specifically identify the planned use of the technique in the application and order. Id. at *6. 

If you’re fighting a wiretap, compare the timing and content of the interceptions with the activation logs of the cell phones – fair to surmise that the Feds have overstretched with roving bugs, without the specific authorization demanded by Oliva.

                                               

For Further Reading: Read Oliva, and you’ll want to borrow some foil from that special client who wears silver hats to avoid brainwave surveillance. The opinion describes technologies that allow remotely-installed software in a cell phone that converts it to a microphone – a device that records conversations even when no call is activated. Id. at *4. For an interesting overview of reports of this technology, see “Remotely Eavesdropping on Cell Phone Microphones,” available here.

Image of “roving bug” from http://www.hittingthewire.co.za/regulatory/ 

Image of the Honorable Raymond Fisher from http://stanfordlawyer.law.stanford.edu/2010/11/judge-raymond-c-fisher/

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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