The built in prophylactic (condom)for government snooping*–red tape

I don’t know a damn thing about the current national security controversy over the government’s efforts to collect data from the Internet and phones.  See, e.g., NSA Prism program taps in to user data of Apple, Google and othersThe Guardian, (Thursday 6 June 2013). I have no experience with spy stuff.

But, I do have a lot of experience with wiretaps and bugs directed at domestic crime, everything from drugs to public corruption.  For five years, as our Chief Judge, I handled all those secret applications and proceedings for our district.  From that experience, here are some of the things I learned:

*  The facts and legal justifications required for an order allowing the federal government to wiretap someone or to bug their home, car or place of business would choke a horse.  It was not at all unusual for me to receive an application and affidavits exceeding a hundred pages.

*  Main Justice is extremely careful about approving applications like these, and a senior official in Washington must authorize any such application before the local US Attorney or one of her assistants may proceed.  That “sign-off” is required to be provided to the judge.

*  Potential criminal and civil liability hangs heavily over the heads of those who submit requests to federal judges for these types of intrusion.   Consider, if you will, the false statement statute.  Then consider this question every government agent who appeared before me had to answer under penalty of perjury:  “Do you have any reason to doubt the accuracy of any of the statements contained in the materials submitted to me?”

*  Every government agent who appeared before me also had to be accompanied by a senior AUSA.  That AUSA was also subject to my questioning and sometimes that, too, was conducted under oath.

*  Except as authorized by the judge (or narrow provisions of certain statutes), disclosure of the information collected by the wiretap or bug is strictly prohibited.  Unlawful disclosures can get you a prison cell.

* The government was almost never allowed to intercept everything–that is, if a conversation turned to something that was not criminal, the interception actually ceased.  It was only spot checked after that.

*  Judges oversee the process from start to finish and receive regular sworn updates.

*  No judge will allow a tap or bug to go on indefinitely.

*  Judges take this stuff very, very, very seriously.

In short, if the law, facts and processes required to get a national security interception order are anything like the law, facts and processes I saw and required when issuing wiretap or bug orders,  you don’t have to worry about Big Brother.  Big Brother has enough on his hands fighting his way through a mountain of very sticky red tape while also trying not to step on a land mine.


*”Snooping” is not limited to the government.  It has also been defined to mean:  “The act of asking to see one’s cell phone then proceeding to read through their text messages, playing it off like [you’re] not doing it.”

%d bloggers like this: