It would be wonderful if all wiretaps were ruled illegal.
It would also be wonderful if all law enforcement officers were required to wear uniforms or identify themselves when in the course of their duties.
It would also be wonderful if all law enforcement officers were required to wear uniforms or identify themselves when in the course of their duties.
> It would also be wonderful if all law enforcement officers were required to wear uniforms or identify themselves when in the course of their duties.
I see that now. "Hello, Don Corleone, I'm an undercover police officer, but please pretend you don't see my uniform".
I have an issue with letting them listen--especially if I'm on the other end of the phone, for example, taking their order for pizza or arranging a playdate for my kids or something. It's the few-hops-away rule that is very easily justifiable that creates surveillance states.
That same logic puts the friends of drone operators in a strange place, right? They kill civilians too.
You don't see anything wrong with cartel hitmen? The kind who lines up heads on the side of the road and torture people to death for effect?
> That same logic puts the friends of drone operators in a strange place, right? They kill civilians too.
Not quite. First off, it's much more likely that your cartel acquaintance will catch a bad case of drive-by shooting one of these days, kid or no kid. Secondly, sure, I'd feel weird knowing a drone operator, but AFAIK, they don't torture and kill civilians on purpose, it does make a moral difference.
If the FBI identified an organized crime hitman who killed 20+ people and left no evidence other than making incriminating phone calls, is it wrong for them to place a tap on his phone line once they have probable cause that he is a hitman?
Why would it be wrong for the FBI, under the supervision of a court order, to tap this person's phone to see if he is the killer?
Keep in mind this is not a broad NSA dragnet here. This would be a targeted wiretap driven by probable cause and governed by the federal rules of evidence. The GP said "It would be wonderful if all wiretaps were ruled illegal," and we're exploring that idea.
Personally, I would love to see a two-factor commit with all warrants. All warrants should require two judges to sign off on them, one federal judge and one state judge where the wiretap will be carried out.
The other thing I would like to see is some sort of "cost" that the agencies must bear to be able to request warrants. It should cost each agency money to apply for warrants and they should have a limited budget each year to spend on warrant applications. At the end of each year, to apply for increases in this budget, they should present an equal number of both cases which they would have liked to pursue warrants on someone, but it was deemed outside the budget and cases where they pursued a warrant and got one, but the person turned out to be innocent. Such a policy applies market forces to limit rampant wiretapping and phishing expeditions. Instead they will adjust to only use their warrants on those people who actually should be wiretapped. This would also help prevent unilateral action by a single agent or team, without appealing to another independent group with power of the purse over warrant applications. Individual agents and teams would try to get warrants for all their suspects, but the group with power of the purse has the responsibility to dole out warrant applications according to merit so that the agency doesn't run out of them before year's end.
A court order is not a warrant. This is the heart of the discussion you are trying to get into. The 4th amendment is very clear:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
If we allow a court order or a subpoena to continue to be all that LEO/LEA's to need to get whatever information they want, they will stop going to the courts for warrants, and worse, they will end up doing FISA style bulk orders/subpoena's.
Bottom line, if you have probable cause, get a fucking warrant, else, fuck off. (and companies should be requiring warrants for access to customer information too, not just setting up a pay portal for LEA's to peruse at leisure.)
The opinion that kicked off this sub-thread is that all wiretaps should be illegal. "All." That would also eliminate wiretaps that would be authorized under a warrant.
His hypothetical literally described the standard for getting a warrant.
Probable cause is based on evidence.
> His hypothetical is actually how warrants are supposed to work.
No, its not.
> Law enforcement have probable cause to suspect someone of being guilty. If they can make a strong argument about why the person is probably guilty, they then get a warrant to search for evidence in homes, phone calls, emails, whatever.
And that "strong argument" is based on factual evidence that was either received through mechanism other than search and seizure, was the product of prior search and seizure in conditions that do not require a warrant, or was the product of prior warrant-based searches and seizures.
If there was no evidence left other than what was sought in the warrant, there would be no basis for probable cause to support the warrant.
> Probable cause is based on evidence.
From wikipedia, "Probable cause" is a stronger standard of evidence than a reasonable suspicion, but weaker than what is required to secure a criminal conviction.
In other word, you can get a warrant when you don't have enough evidence to secure a conviction, which in turn may lead to gather sufficient proof of guilt (or exonerate the suspect, I suppose).
Again, if there is no evidence left by the "hitman" except the calls for which the warrant is sought, as specified in the hypothetical, than there can't be probable cause to support the warrant. There can't even be reasonable suspicion. In fact, without some kind of evidence, the only thing that could support the desire to seek the wiretap is arbitrary prejudice.
And, even if the FBI could know that a hitman left a series of incriminating phone calls without already having evidence which could be admitted against the defendant of the content of those phone calls, a wiretap based on a warrant issued after the fact wouldn't recover those contents.
Further, I don't think anyone in the thread has argued that wiretaps aren't useful in criminal prosecution, the issue which started this was a poster expressing that it would be wonderful if wiretaps were categorically outlawed, which does not require believing that they aren't useful in certain circumstances. It could, for instance, proceed from the belief that the capacity is so likely to be abused covertly in circumstances where it is inappropriate if its existence is tolerated at all, that the usefulness it has in the circumstances to which it is appropriate is outweighed.
Nobody is arguing against that. What people are complaining about is, among other things, the bulk collection and retention of records; the gathering of records upto 3 degrees of separation from a suspect; etc.
Now if someone tells the police that they've been getting incriminating phone calls, well then that seems like more reasonable probable cause, and doesn't strike me as morally dubious.
What if they hear this guy's name uttered by multiple mafia thugs on the street, as a top hitman? And they find the guy is friends with some mafia members? That doesn't warrant real evidence he killed anyone (random hearsay + just being friends), but it definitely creates some suspicion.