Subject: [NEXTEL-1] DECISION DRIVES DEBATE OVER ‘ON-BOARD’ WIRETAPS

From: [email-masked]
Date: Mon, 08 Dec 2003 18:57:19 -0500

DECISION DRIVES DEBATE OVER ‘ON-BOARD’ WIRETAPS
Court Blocks FBI Listening In
Because it Disables the
System

BY STEPHANIE FRANCIS WARD

On-board navigation systems,
installed in autos to help with driving
directions and roadside
emergencies, may be the new
favorite toy of high rollers. They are
also temptations for the FBI, which
in Nevada obtained court orders to
eavesdrop on high-powered
conversations through the devices.

But according to a federal appeals
court, the government can
piggyback on the product so long as
it doesn’t disrupt the emergency service. Last month, a panel of the San
Francisco-based 9th U.S. Circuit Court of Appeals ruled that courts could order
the system provider to let the FBI listen in under wiretap provisions of the
1968 Omnibus Crime Control and Safe Streets Act. However, because the monitoring
itself requires the provider to disable the system from its planned use, the
court blocked FBI requests for monitoring.

The system allows a cell phone connection to be opened and activated by the
owner if the car is stolen or the driver is lost. Also, the system automatically
calls an operator if the vehicle’s airbags are deployed. But when the FBI
monitored the line, the 9th Circuit said, the system provider was prevented from
gaining access to it.

"The FBI, however well-intentioned, is not in the business of providing
emergency road services, and might well have better things to do when listening
in than respond with such services to the electronic signal sent over the line,"
Judge Marsha Berzon wrote for the majority in the 2-1 decision. "The result was
that the [on-board service provider] could no longer supply any of the various
services it had promised its customer, including assurance of response in an
emergency." The Company v.  United States, 02-15635 (Nov. 18, 2003).

The opinion stems from a district court order the FBI obtained related to a
public corruption investigation involving public officials and a strip club
owner. The system provider, identified only as the Company, filed the appeal.
However, a dissent by Judge Richard Tallman argues the district court was
correct in granting the order because the FBI established it had probable cause
to believe the individuals were engaged in criminal activity and made plans in
their vehicles.
The statute, Tallman wrote, says the government may use wiretaps with a "minimum
of interference," meaning it must be done in a way that causes the least amount
of disruption. However, the dissent said, the statute does not bar any
interruption at all.

"Here, the record leaves no doubt that the Company complied with the challenged
order in the way least likely to interfere with its subscriber’s services and
that, in fact, no actual service disruption occurred," he argued.

The underlying case is sealed, which is why the on-board system provider is not
named. According to Dominic Gentile, a Las Vegas attorney, the plaintiff
provides the systems for Mercedes Benz vehicles.  The FBI used the system to
eavesdrop on client Lance Malone, a former Clark County commissioner and strip
club lobbyist, who was indicted in November for delivering bribes to elected
officials.

Gentile plans to cite the opinion in a motion to suppress evidence. Natalie
Collins, a public affairs specialist with the U.S. attorney’s office for Nevada,
would not say whether her office plans to appeal. Bennee B.  Jones, a Dallas
lawyer listed as counsel for the Company, did not return phone calls seeking
comment.
Gentile has not heard of similar cases, nor has Elizabeth Phillips Marsh, who
chairs the Rules of Criminal Procedure and Evidence committee of the ABA’s
Criminal Justice Section.

"I think the 9th Circuit was sort of stuck here, because in fact it is an oral
communication within the statute, and there is a duty for private people to help
the government," says Marsh, a law professor at Connecticut’s Quinnipiac
University. "But the only thing they could actually rule on is the notion that
[FBI monitoring] completely incapacitated the emergency system."

Some wonder whether the opinion would stand should the government appeal.
"This decision, being split, is going to create lots of litigation around the
country," says Neal R. Sonnett, a Florida criminal defense lawyer. He suspects
this case is not the first time the government has used an on-board system to
monitor conversations.

"It’s scary to think that a device you actually pay extra for to serve as a
protection against emergencies can be turned against you as a weapon for law
enforcement," Sonnett says. "I’d be very concerned about buying a car and
ordering the service if I know that it facilitates the government’s abilities to
overhear my conversations."

Congress may change the statute to allow the monitoring of on-board systems,
says Ronald S. Safer, who previously headed the criminal division of the
Northern District of Illinois’ U.S. attorney’s office.
"People are quite aware of law enforcement’s abilities to tap phones. That is
why bugs tend to be far more revealing than traditional wiretaps," he says.

http://www.abanet.org/journal/ereport/dec5star.html

------------------------ Yahoo! Groups Sponsor ---------------------~-->
Buy Ink Cartridges or Refill Kits for your HP, Epson, Canon or Lexmark
Printer at MyInks.com. Free s/h on orders $50 or more to the US & Canada.
http://www.c1tracking.com/l.asp?cid=5511
http://us.click.yahoo.com/mOAaAA/3exGAA/qnsNAA/61FxlB/TM
---------------------------------------------------------------------~->

Your use of Yahoo! Groups is subject to http://docs.yahoo.com/info/terms/