Friday, May 18, 2007

Texas Joining Wiretap Nation

I don't get it. How did we get past the post-9/11 session in 2003 without expanding wiretap authority (at the time David Dewhurst declined to pursue it saying he wanted to respect civil liberties), but NOW in 2007 it's urgent Texas do so?

Not only has the Legislature sent a bill to the Governor letting local yokels run wiretap operations instead of the Department of Public Safety, but another homeland security bill on today's major state calendar in the House, SB 11 by Carona, would expand the crimes where wiretapping could be used and allow "roving wiretaps" like those in the federal PATRIOT Act. (See prior Grits coverage.)

Like SB 823 before it, there's no urgent or identified need to expand wiretapping in Texas - judges approve just a handful of phone surveillance warrants statewide every year. Apparently our elected officials want them used a LOT more often, but for the life of me I can't understand why.

The worst aspect of the bill, though, from a public safety standpoint, would have to be provisions that make emergency plans and meetings about them secret. This is the Cold War era "security through obscurity" paradigm that's as outdated today as rhetoric bashing Communism. As I wrote previously:
Computer security experts like Bruce Schneier preach incessantly that "open source" approaches - or making public security problems instead of concealing them - over time enhance security. The same is true for things like evacuations or responses to bioterrorism incidents. Keeping emergency plans secret will only mean that in crunch time the public doesn't understand the plan or what they're supposed to do. Keeping security audits secret means that when security problems are identified, politicians will experience no public pressure to fix the problems, so they may not. Secrecy in these contexts isn't just unnecessary, it's counterproductive - harmful to the goal of ensuring public safety.
Texas rejected all of these ideas immediately after 9/11, but the political interests who want greater secrecy and more domestic surveillance power kept coming back, and apparently this is the session lawmakers, for whatever reason, decided to cave. For my part, I agree with Fort Worth Startlegram columnist Bob Ray Sandes who wrote last year,
With all due respect to the late Don Knotts, who was one of my favorite comic actors, to give officials here more authority to wiretap people would be like giving Deputy Barney Fife a second bullet. And letting him put both in his pistol at the same time.
Please, Texas House members: Don't give Barney Fife another bullet! I hope SB 11 dies by hook or by crook, whether through sound arguments that covince members or a point of order that saves everybody a lot of time and protects safety and liberty more efficiently - I don't really care which but I hope it doesn't pass.

UPDATE: Rep. Burnam called a point of order on the bill that made me go "Duh!" - the bill addresses more than one topic. SB 11 was pulled down and postponed until Monday morning, which may mean the POO is sustainable (I'd hope so, it's entirely valid - the bill's a hodge podge). If so, that give Rep. Burnam and other critics leverage to negotiate, but this story is far from over. The Texas Observer has more.


Anonymous said...

They want to do what the FBI has been doing since the Fifties, which is use illegal wiretaps to get 'intel' which will tell them what they want to know, but cannot be used in court as there is no warrant. Once they know what conversations they want to record, they apply for warrants and then have their collaborators arrange to steer those conversations into being, which gets them the evidence they said they hoped to get on the warrant. To the federal judges, the FBI always looks like it knows what it's doing, and so the warrant applications are routinely rubber-stamped.

And it's true, the FBI does know what it's doing, since it is not chiefly a law enforcement agency: it's chief product is illegal espionage.

Anonymous said...

This is not as bad as it first appears. Right now, federal wire taps are used on local level investigations and the cost is not worth the benefit.

This will cause a shift in law enforcement methods. If the local and state cops want a wire, apply for and pay for it yourself. They will hence stop exaggerating the level of their defendants to get federal money and rubber stamped oversight is dissolved.

There isn't a benefit without a problem in that the wiretap authority at the state level could travel a similar path as the federal in that now the locals are one step from a needless wire not two.


Gritsforbreakfast said...

Tell me more, please, about local agencies applying to the feds for wiretaps.

Wouldn't those be included in the official USDOJ stats on the number of wiretaps per state? If not, do you know where public data on those wiretaps (just totals, etc.) would be? What types of cases are we talking about - drug cases, others?

My concerns are both the issue of one step not two from a needless wiretap, and also what the first anonymous said about using them illegally for information that won't make it into court (99.5% of TX cases end in plea bargains anyway).

This just seems like an unnecessary power grab - a solution looking for a problem. Nobody can point to a case where it was needed and cops couldn't get a wiretap.

Finally, I agree that wiretaps require strict adherence to standards. That's why the same bumpkins at local PDs who couldn't manage the HPD crime labs, who railroaded dozens of wrongful convictions in Dallas, and who coerced witnesses in San Antonio's Ruben Cantu case, shouldn't have this equipment or authority. Over time, the likelihood that somebody will misuse it approaches 100% - and since wiretaps are rarely used in TX, the juice isn't remotely worth the squeeze. best,

Anonymous said...

Most local investigators never use wiretaps, it's illegal in Texas. and will get you in trouble. If you get one from the Feds, then you probably will have to give your case over to them completely.
If locals could use wiretaps on a routine basis, this would cut out the need for CIs (what you call snitches).
And, yes Mr. Grits, if pudunk locals get routine wiretap authority, they will abuse the hell out of it for political purposes, etc.

Anonymous said...

I am a former fed and Anonymous 8:15am is misinformed and just plain wrong.

Title III wiretaps are nonconsenual intercepts of phone conversations with no consent. It's completely clandestine and they ALL REQUIRE WARRANTS, DOJ REVIEW, and FEDERAL JUDGE REVIEW.

The process is exhaustive and it MUST be the last step in the investigative process meaning nothing else has worked and nothing else working must be demonstrated in the warrant.

Statistics are available but you must know where the funding came from (OCDETF, HIDTA, DEA, FBI, etc).

The majority of Title III's use to be drug investigations and they probably still are. The internet, faxes, and the show the WIRE has changed the dynamics of their value but not many states had Title III when I did them.

Don't get wrapped around the axle of statistics. Apply common sense. Most states don't need them because the cost isn't easily understood.

The other overhears covered under Title III are one party consent (a snitch tape recording a telephone call with a defendant); a body wire when the snitch wears a wire when he's speaking to a defendant not on a phone; and cloning a pager so you can see what numbers are calling the defendant's pager.

Wiretaps are great tools but most of them are group efforts because no one has the manpower it requires to man them, except the FBI. Their labor intensive and the greatest expense is usually in the translation department because very few involve English anymore.

I've never seen them abused just misused and the reason for that is because they'r a promotion standard in DEA. If you do one, regardless of the value, it looks good so there not limited like they should be.

As for giving you information on where to get better informed about this type of thing, I've done that in the past and you didn't do anything with it. Thanks for your interest but your scope is too local for this type of inquiry.

Gritsforbreakfast said...

What's the difference between a wiretap "abused" and "misused" - sounds like a distinction without a difference.

And as for sending me info I didn't follow up on, no offense but a lot of people send me info and it's always based on what they're interested in. I write about what I'm interested in, and many folks don't understand when those don't jibe - sorry if you felt snubbed, but I cover a lot of ground here and the geographic limitation helps clarify what to pursue. best,

Anonymous said...

Then why do you ask for something outside your geographical area if you're limited and you know you are.

Secondly, by misused I mean that wiretaps are started on two phones not one. That means you're ordinarily on the phone of a buyer and the other person is a seller.

If you're on the phone of a seller, he/she is also a buyer and the law allows you to spin up on the next phone so you effectively work up the chain; state to state; and state to other country. I've done it and it works but that's not profitable for the locals; impact is outside the area where they get bones; and when the locals lose control they get pissed and take their resources off the task force.

Creative Writing assignments are acceptable substitutes for good federal investigations. That's just the way it is.

Gritsforbreakfast said...

"Then why do you ask for something outside your geographical area if you're limited and you know you are?"

Because Texas is not an island. The state is connected to the rest of the nation through laws, technology, and common methodologies, as well as the rest of the world through the border, trade, etc.

Clearly you're unhappy that I didn't take your leads and do all your legwork for you. Sorry to disappoint. My only defense (besides that nobody's paying me to do this) is that I look at these subjects through a particular lens - how they affect criminal justice in Texas - and that includes federal issues, best practices, etc.

Anonymous said...

That's what all the "exceptional interrogation" techniques used at Guantanamo Bay is all about. They have no intention of ever actually charging nearly everyone there with any specific crime. Why bother if those in charge allow you to keep them there without charges? Who cares if the information is tainted if it never comes to trial? Why bother with trials and the court system if you can get some hysterical legisliar to allow for "extraordinary" measures to combat a real or imagined threat? In Britain you can hold a suspected terrorist for 28 days without even as much as a hearing. You have to be careful tho. I doubt that the public would suffer someone from 10 Downing street to remain absent for that length of time without access to paparazzi.

Anonymous said...

Bottom line, if your not doing anything wrong then who cares if the phone is tapped.

Hmmm, politicians do seem aweful concerned about wire taps. I wonder why?

Well said to all anonymous!