There is a bonkers legal situation playing out in California. Via the ABA Journal:
Federal agents bugged the grounds of three California courthouses without warrants as they sought to gather evidence of claimed bid-rigging in mortgage foreclosure auctions, defense lawyers say.
The FBI was hoping to catch real estate buyers colluding to keep the prices at auctions down. The feds say the buyers schemed to decide who would get which property in advance of the auction. At one of the auction locations, in San Mateo, the FBI actually had cooperators who were willing to wear wires to record their conversations with other real estate investors. But the FBI wanted even more evidence, so it decided to bug public areas at the three courts where auctions were taking place over a period ranging from 2009 to 2011.
They placed recording devices in vehicles around the courthouses, in lights near the entrances, in a planter, in a sprinkler, in a bus stop near the courthouse, and in a "backpack placed next to a statue situated inside the Alameda County Courthouse," according to a letter written by a prosecutor that detailed the recordings. (If you see something, say something… because it might be an FBI bug recording your conversation.)
The agents didn't get permission from a judge to do this, but did, according to a Dec 2015 government filing, get the blessing of the local sheriff's office. "Before placing any stationary devices, the FBI sought permission from the San Mateo County Sheriff’s Office, which is responsible for courthouse security; after consulting with county counsel, the Sheriff’s Office gave the FBI permission to install the recording devices," wrote the prosecutors, who say the devices only recorded shortly before auctions started and then were turned off shortly after they ended
The real estate investors now being tried for conspiring to rig the auctions argue the warrantless surveillance was illegal, violating their Fourth Amendment rights against unreasonable search and seizure, and that it almost certainly caught the conversations of other (innocent) people uninvolved with the investigation.
"Defendants' expectation that discreet conversations outside a courthouse would remain private is surely one that society is prepared to recognize as reasonable," write one of the defendant's attorneys in a brief to the court, via the East Bay Express. "Private affairs are routinely discussed as citizens, their lawyers, and even judges walk to and from court, and lawyers often take clients aside outside the courthouse for privileged conversations."
The idea that privileged conversations between lawyers and their clients could have been captured is particularly offensive to the legal set.
Of course, concern about capturing privileged conversations between attorneys and their clients hasn't stopped the government before, as when it bugged the smoke detectors in visiting rooms at Guantanamo Bay.
The government's argument in the California case is that conversations in public don't have a reasonable expectation of privacy. Seriously. Via The Recorder:
[David Ward, an attorney with the San Francisco office of U.S. Department of Justice Antitrust Division] said all the devices were located in the middle of "a raucous public foreclosure auction, often attended by dozens of people."
"If you are standing amid a crowd of people you don't have an expectation of privacy," Ward said. "This was a public, open space. And if you think about where you would go to have a private conversation—to have a truly private conversation—it wouldn't be a public auction."
Or at a bus stop. Or on the courthouse steps. Or near a parked car.
While we've all grown used to the idea that surveillance cameras might be anywhere in a public (or even private) space, our conversations have traditionally enjoyed more legal protection than our visages, thanks primarily to wiretap laws. Some states, including California, also have two-party consent laws, that require both parties in a conversation to consent to being recorded. For that reason, defense attorneys are saying government agents broke the law. "They believe the federal agents committed felonies when they planted the bugs," reports the East Bay Express.
To top it all off, prosecutors now say that they don't actually want to use the recordings at trial. "Largely because of the public and cacophonous nature of the auctions, individual conversations are often unintelligible," wrote prosecutor Ward in a December 2015 filing. (Yet the recordings continued for years.) Defense attorneys want the recordings thrown out along with any other evidence that was "tainted" by them.
Hopefully, a judge won't let stand the idea that simply being in public implies consent to having your conversations recorded and potentially used against you by the government.