October 14, 2002 11:08 AM PDT
Appeals court OKs fax intercepts
In what appears to be the first decision dealing with fax interception, a three-judge panel from the Ninth Circuit Court of Appeals said on Friday that police did not violate federal wiretap laws when spying on the group, whose key members were convicted in 1998 of bank fraud.
Legal experts said the 3-0 ruling, a considerable victory for the government, reaffirms police abilities to seek court approval to snare e-mail--with little worries about running afoul of federal law.
"Law enforcement is entitled to latitude to scrutinize messages by conspirators, because such messages may contain double meanings and implied purposes, or even be conveyed in secret code," the court wrote in a 22-page opinion. "We decline to adopt a rule that would require law enforcement to review conspirators' communications with a blind eye."
To eavesdrop on the Montana Freemen, the FBI obtained a court order permitting agents to intercept voice conversations and faxes and plant a hidden microphone. At issue is whether federal agents followed required procedures to "minimize" the number of documents intercepted and stored, such as personal correspondence, that did not relate to illegal activities.
Because the Freemen had threatened at least two federal judges in Montana, a district judge in Oregon was appointed to set rules for electronic surveillance. U.S. District Judge James Burns' order said each intercepted fax would be printed, reviewed by an agent and a prosecutor, and used as evidence or locked away "based on the identities of the sender and recipient and the subject matter of the transmission (and) whether the facsimile appears to be pertinent to the criminal offenses listed in the court's order."
A 1968 wiretapping law did not explicitly cover what procedures police should follow when intercepting fax and e-mail messages. But the Electronic Communications Privacy Act of 1986 provided procedures, which require police "to minimize the interception" of irrelevant information and regulate "aural or other" forms of surveillance.
The two defendants in this case, John McGuire and Cherlyn Petersen, were convicted of bank fraud for printing bogus checks and trying to pass them off as real.
Their defense attorneys, who argued that the incriminating faxes should not be used as evidence against their clients, said the FBI legally could read only portions of the fax before deciding whether it related to illegal activities or not.
But the Ninth Circuit panel said the fax interception rules were perfectly reasonable. "We reach this conclusion because the Supreme Court has approved government wiretapping even when the officials intercepted virtually all communications taking place on a particular telephone line," the appeals court said.
"Among the incriminating documents the FBI intercepted were maps, instructions on how to commit fraud, documents purporting to be negotiable instruments, and warnings by various financial institutions," the court said. "The diversity and technical nature of these documents justified officials? taking extra care to separate the relevant from the irrelevant, even if it meant that they read some non-pertinent materials."
"Given the public debate over Carnivore/DCS-1000, the decision seems to suggest that at least as a matter of current law, the government actually can satisfy the legal standards of minimization relatively straightforwardly," Orin Kerr, a law professor at George Washington University and former federal prosecutor, wrote in an analysis on Monday. "That's an important result and a considerable 'win' for the government."
David Sobel, general counsel of the Electronic Privacy Information Center, said courts must ensure police conducting wiretaps abide by the minimization rule.
"It's not an excuse for the government to say this technology does not allow us to minimize in the way we used to be able to in a telephone conversation," Sobel said. "Until they develop a technology that will allow police to intercept and minimize, there's a decent argument that they should be prevented from conducting the interception."
The Freemen typically do not reject all government authority, but they do oppose what they view as an overreaching and illegitimate federal government. The two defendants, McGuire and Petersen, were members of a group that lived on a Montana farm and held federal agents at bay for nearly three months in 1996 before surrendering.