February 29, 2012 | By Hanni Fakhoury

EFF Tells Supreme Court that No Means No in Wiretap Act

Yesterday, EFF and the Center for Constitutional Rights filed an amicus brief (PDF) in support of certiorari, asking the Supreme Court to enforce the plain text of the Wiretap Act and its absolute prohibition against the use of illegally intercepted communications.

The case arises out of the federal government's investigation of New York attorney Robert Simels for conspiracy to obstruct justice. As part of its investigation, the government asked a judge for authorization to wiretap conversations between Simels and his client. The Wiretap Act requires that intercepts be "minimized," meaning the government can only capture conversations relevant to the ongoing criminal investigation. The judge issued the wiretap but required the government to contemporaneously minimize the communications it was intercepting. Later, a different judge found the government failed to comply with the court's order and suppressed the wiretaps, preventing the government from using them at trial. The court suppressed under 18 U.S.C. § 2515, which says that when a communication has been illegally intercepted in violation of the Wiretap Act, "no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial."

After Simels testified in his own defense at trial, the government asked the judge for permission to play the suppressed wiretap recordings to the jury, intending to show that Simels had testified inconsistently with what he had said on the recordings. Despite the clear prohibition against the use of illegally intercepted communications in any trial, the judge nonetheless ruled that the Wiretap Act contained an implicit exception that allowed the government to use an illegally intercepted communication to impeach (or discredit) a witness. Simels was ultimately convicted, and the Second Circuit Court of Appeals rejected his argument that the judge was wrong in allowing the jury to hear the illegally intercepted communications.

In our brief to the Supreme Court, we argue that a judicially-created impeachment exception to the Wiretap Act not only contravenes the plain text of 18 U.S.C. § 2515, which contains no impeachment exception, but also goes against Supreme Court precedent governing how to interpret statutes. Most importantly, allowing exceptions to the Wiretap Act's otherwise absolute bar against the use of illegally obtained wiretap evidence will only continue the growing privacy intrusions caused by wiretaps.

In the ten years since the passage of the PATRIOT Act, the number of wiretap authorizations has almost doubled.1 And the estimated2 number of people who are being wiretapped has increased as well.

Meanwhile, the percentage of intercepts considered "incriminating" is decreasing. 

So has the percentage of intercepts resulting in actual convictions.


And one last alarming statistic stands out: between 2001 and 2010, while there were 19,282 wiretaps authorized, only three(!) wiretap applications were denied.3 The conclusion is simple: more people and conversations not connected to criminal activity are being recorded with little judicial scrutiny. Allowing courts to create exceptions to the strong privacy protections in the Wiretap Act only encourages this dangerous trend. While the lower court should be applauded for holding the government accountable to the minimization requirements of the Wiretap Act, it nonetheless aided the government in defeating privacy by allowing it to play to the jury an illegally obtained recording. So despite breaking the cookie jar, the government gets to have its cake and eat it too. 

Hopefully, the Supreme Court will grant certiorari and restore the strong protection in the plain text of the Wiretap Act. And if courts are concerned that litigants can get away with perjury absent an impeachment exception to the Wiretap Act, the solution is for Congress to amend the law, not for judges to invent exceptions to the Wiretap Act out of whole cloth—particularly when these invented exceptions only lead to greater privacy risks to innocent individuals. 

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