Article

Sorry, wrong wiretap

FBI admits to mistakes in Internet, phone intercepts

Friday, September 30, 2005; Posted: 11:11 p.m. EDT (03:11 GMT)

WASHINGTON (AP) -- The FBI says it sometimes gets the wrong number when it intercepts conversations in terrorism investigations, an admission critics say underscores a need to revise wiretap provisions in the Patriot Act.

The FBI would not say how often these mistakes happen. And, though any incriminating evidence mistakenly collected is not legally admissible in a criminal case, there is no way of knowing whether it is used to begin an investigation.

Parts of the Patriot Act, including a section on "roving wiretaps," expire in December. Such wiretaps allow the FBI to get permission from a secret federal court to listen in on any phone line or monitor any Internet account that a terrorism suspect may be using, regardless of whether others who are not suspects also regularly use it.

The bureau's acknowledgment that it makes mistakes in some wiretaps -- although not specifically roving wiretaps -- came in a recent Justice Department inspector general's report on the FBI's backlog of intercepted but unreviewed foreign-language conversations.

The 38,514 untranslated hours included an undetermined number from what the FBI called "collections of materials from the wrong sources due to technical problems."

Spokesman Ed Cogswell said that language describes instances in which the tap was placed on a telephone number other than the one authorized by a court.

"That's mainly an instance in which the telephone company hooked us up to the wrong number or a clerical error here gives us the wrong number," Cogswell said.

He had no estimate of how often that happens, but Cogswell said that when it does the FBI is required to inform the secret court that approved the intercept.

The FBI could not say Friday whether people are notified that their conversations were mistakenly intercepted or whether wrongly tapped telephone numbers were deleted from bureau records.

Privacy activists said the FBI's explanation of the mistaken wiretaps was unacceptably vague, and that in an era of cell phones and computers it is easier than ever for the government to access communications from innocent third parties.

"What do you mean you are intercepting the wrong subject? How often does it occur? How long does it go on for?" said James Dempsey, executive director of the Center for Democracy and Technology.

David Sobel, general counsel of the Electronic Privacy Information Center, said technological advances have made it harder, not easier, to "conduct wiretapping in a surgical way" because digital communications often carry many conversations. "It's not like the old days when there was one dedicated line between me and you," Sobel said.
'People ought to be concerned'

The FBI has acknowledged errors in the past. An FBI memo from 2000, made public two years later, described similar problems in the use of warrants issued by a court that operates in secret under the Foreign Intelligence Surveillance Act. In 2002, an FBI official said the bureau averaged 10 mistakes a year in such cases.

These warrants are among the most powerful tools in the U.S. anti-terrorism arsenal, permitting secret searches and wiretaps for up to one year without ever notifying the target of the investigation.

The court approved 1,754 such warrants in 2004.

The Patriot Act, passed 45 days after the September 11 attacks, gave the government sweeping powers in terrorism investigations, including allowing the use of roving wiretaps. The authority also applies to espionage and other foreign intelligence cases.

The FBI is not supposed to use material it collects either by mistake or from people who happen to use phones that are tapped legitimately, but that requirement doesn't satisfy some lawmakers.

"They have recorded the information, but they're saying, 'Trust us, we won't listen to what we recorded,' " said Rep. Bobby Scott, D-Virginia. "People ought to be concerned."

Versions of the Patriot Act renewal that passed the House and Senate during the summer both contain the roving wiretap. It would expire in 10 years under the House-passed bill and four years in the Senate version. Congressional negotiators are expected to hammer out final details of the legislation starting in late October.

The Justice Department fought congressional efforts to require investigators to determine that the target of surveillance actually was using the tapped phone or computer before they listened in. Some lawmakers said such a requirement would reduce the chance that other conversations would be intercepted.

Administration officials argued that safeguards in the law already require the government to discard those conversations. "Such a restriction would make it harder to use multipoint wiretaps in terrorism and espionage investigations than in drug trafficking and other ordinary criminal investigations," assistant Attorney General William Moschella wrote Scott.

Just another reason why I think the Patriot Act needs to be repealed and rewritten.

If the FBI mistakenly taps a phone they're not supposed to ... can they use that as evidence in court?

They're not supposed to....but who knows if that wrongly aquired evidence doesn't start other investigations....then bam, they've got another court order to tap your phone from the secret court system.

I know you're a busy, busy man, B, but this was in the first paragraph of the story:

similar thing happened to me last night, i was coming home after a night of drinking and went into the wrong house and had sex with my neighbors husband. Accidents happen But seriously I would think that the FBI has a check and double check system for this shit? I feel much less safe all of the sudden

Well, think of it this way. Using your metaphor, you don't really care if you have sex with the neighbor, and actually, you kinda like it. Plus, your husband is really stupid and drunker than you were last night, and he's the only person that you care doesn't find out, and chances are he won't.

That's the checks and balances system at work at the Justice Department.

exactly like oh damn, i didn't know i tapped john kerry admitting to burning down a village in laos

I have no excuse for myself.

OK, if they start a new investigation ... isn't that fruit of the poisonous tree?

They can't be obvious about getting info from the wiretap, but there are plenty of ways to get around that.

i dont think they can, i would imagine it lies upon the judge believing it was an honest mistake

Would that be the judge in the secret court?

I think that's right. Let's say you have authorization (I won't use the word "warrant") to tap Joe's phone. You mistaken tap Tom's phone. If you gather eveidence that incriminates Joe from Tom's phone, I'm pretty sure you could use it if the judge considered it an honest mistake. But you couldn't use anything from Tom's phone against Tom because you didn't have a warrant against Tom.

HOWEVER, and this is the big question, will the police use the info gathered on Tom to start a new investigation of Tom and try to gather other evidence against him which MAY be used against him? See, the less restraint on the police in the use of wiretaps, the more likely that such "accidentally" acquired information (I won't use the word "evidence") may be learned that opens up new investigations.

Now, some of our law-and-order focussed posters may see no problem with this, since Tom was breaking the law too, and deserves to be punished. But what if Joe is a suspected terrorist, and Tom is a stock broker doing insider trading? Should a search and wiretap law designed for fighting terrorism, and passed into law with the express understanding that such extraordinary powers are being afforded because terrorism is such a great danger to the people, be able to be used to advance a criminal investigation into a much lesser crime for which the Patriot Act would be inapplicable? Is that not heading directly down the slippery slope towards using the Patriot Act (or similar legislation) for fighting drugs, or internet piracy, or other much lesser offenses?

Basically, this is why use of such invasive techniques as wiretaps should be strictly controlled for use against specific targets where specific information points to their complicity in specific crimes, and any info outside of that should be discarded.

In a perfect world, that would be great. But I imagine that on occassion, these "invasive techniques" are what are used to obtain that "specific information". That is a very fine line there.

I recognize that it's not a perfect world, but I the specific information should be in hand BEFORE the wiretap is used. The alternative is a fishing expedition where the police cast a wide net indicriminantly, and see what they find. Obviously that's the extreme, but if the police don't have some "specific information" to begin with, how do they decide whom they should spy on?

Oh, absolutely. Not only would that be a shady tactic, I think it would be a horrible waste of time and resources as well. I do think that when we are talking about possible terrorist activity, the grey area should be reduced so that it is easier for law enforcement to do what they need to do. That doesn't mean wiretapping every Muslim oriented charity organization, but I think they should have the right to investigate if they see something that could indicate terrorist activity. I mean, the very reason terrorists set up these sorts of fronts is because they can blend in with normal society. Law enforcement needs to be able make a differentiation, and on occasion, that is going to involve acting on a hunch. I guess I just haven't seen the rampant abuse of power that people were complaining about regarding the Patriot Act, so I'm not inclined to get all upset about it. Not saying it hasn't happened or won't , but I can see what they are trying to achieve, and I can appreciate that.

Can you show that to me as an episode of Law & Order or the Practice?

im sure theres been one, i just cant think of the details off hand.


think of it this way, theres a guy about to jump out a window, the cops arrive at the scene and someone who lives there says, he lives in 7d. the cops rush up there and go into 7d and find a shitload of drugs on the table, with guns, cash and what not.

the guy actually lived in 7c. the cops go to 7d, pull the jumper down. guy from 7c comes home and is nailed.

it was an honest mistake with no malice intended.

Yeah, I got that ... I was just fucking around.