While Title III wiretapping is supposed to be a measure of last resort, so intrusive and potentially abusive that the government can only turn to it when normal investigative measures failed and there was strong reason to support extraordinary means.  Of course, that was when Title III enacted in 1968, when privacy was more of a concern and safety less so.

Wiretaps seem like a technological anachronism these days, conjuring up romantic images of agents slipping into house in the dark of night to plant bugs in telephone receivers.  No need for any of that nonsense anymore.  Today, it’s just a flip of the switch and your call is available for their listening pleasure.  But the rules of Title III remain intact.  These rules require minimization, that agents limit their listening to conversations relating to the basis for the warrant and not overhear privileged communications. 

It’s tricky business, with agents allowed to sneak back in for a couple minutes here and there just to be sure they haven’t missed anything.  Then again, it’s not always clear what’s relevant and inculpatory, since people can talk in code and appear to be speaking about ordinary stuff, like purchasing 10 and a half pizzas, when their discussion is more ominous.

Of course, sometimes a conversation has absolutely nothing to do with criminal conduct.  Sometimes husbands and wives talk, maybe argue, even fight, disclosing very personal information that was not intended for anyone else’s ears and has absolutely nothing to do with any criminal conduct.  It’s wrong of the government to listen in, record, enjoy overhearing these conversations.

As Michael Rothfeld writes in the Wall Street Journal, the Galleon case produced some highly dubious recordings.

Some of more than 40 secret recordings played for jurors at the trial of Galleon Group founder Raj Rajaratnam have contained stretches of dialogue that appear exclusively personal, focusing on marriages and alleged extramarital affairs, social visits and vacations.

Not only did the government overhear and record communications that bore no connection to crime, but the court allowed them to be played to the jury.  The argument was that these personal conversations established the relationship giving rise to insider information was passed along.  Like the ubiquitous claims of “background,” arguments like this can be used to admit anything and everything, since it’s all interconnected in some metaphysical sort of way.  Mind you, it’s total nonsense, but that never stopped a judge from acquiescing to a purely rhetorical argument by the government.

In the case of Craig Drimal, a similar problem occurred.

In a ruling on Wednesday, a judge overseeing a different but related insider-trading case excoriated the government for monitoring intimate calls between trader Craig Drimal and his wife about their marriage, which had nothing to do with the case.

Outrageous?  A total violation of the minimization requirements of Title III?

“The court is deeply troubled by this unnecessary, and apparently voyeuristic, intrusion into the Drimals’ private life,” wrote U.S. District Judge Richard Sullivan. He ruled, though, that the errors didn’t justify Mr. Drimal’s request to suppress more than 1,000 calls taped by the Federal Bureau of Investigation.

Judge Sullivan, whose path to the bench went through the United States Attorneys office in Manhattan, wagged his finger very, very hard at the prosecutors.  He probably had a very stern look on his face as well.  He told them that he was “deeply troubled,” but not deeply enough to do anything about it.  The remedy for violation of Title III, which was to be strictly construed, is suppression.  The government was not to enjoy the benefit of this horribly intrusive means to insert themselves in people’s most personal communications unless it played strictly by the rules. 

Or not.  Judge Sullivan ruled that the errors didn’t justify suppression.  Justification, however, has nothing to do with it.  The rules are the rules for minimization, and they ignored the rules.  Put aside the irony that the government prosecutes people, puts them in prison, for hypertechnical violations of rule, while ignoring rules at will to achieve that result.  

Nathan Burney noted Judge Sullivan’s ruling.

Namby-pamby judges in the past tried to deal with minimization violations by just suppressing the personal conversations.  This served no use whatsoever, because all that did was exclude evidence that wasn’t admissible at trial in the first place.  There was no penalty for violating this fairly important rule.

So there has been pressure on the courts to actually enforce the rule in a meaningful way, by suppressing all conversations that were intercepted on a wire where there were blatant violations of the minimization requirement.  Instead, the courts appear to have gone in the opposite direction.  ”We can’t suppress,” they seem to be saying, “because then we’d lose all that lovely lovely evidence.”

At the first stage, Nathan notes judges who do nothing more than excise that which the government should never have to begin with.  This, of course, provides the exact opposite incentive for adherence to minimization requirements, as the government can record everything and the worst that will happen is they won’t be able to use the recordings they should never have had in the first place.  No harm, no foul.

To call these judges “namby-pamby” strikes me as a bit too kind.  They know exactly what they’re doing, staring down a flagrant Title III violation and letting it slide through anyway, giving the government their  way without any consequence for the abuse.  Still, it’s not as bad as a judge who allows personal, private communications wholly unrelated to any crime to come in.  Why not just allow cameras in people’s bathrooms for fun?

The problem with the government’s failure to minimize wiretaps in corporate and financial crime cases strikes many as troubling, but it’s hardly surprising.

The use of secret surveillance is old hat for organized crime and narcotics suspects, whose lawyers say the government has for years captured personal conversations.

The strict construed rules developed in the 1960s became increasingly wavy, loosey-goosey, as wiretaps became the tool of choice for drugs and mobsters, two groups with few friends and advocates in the courthouse.  The government’s zeal to get these heinous criminals caused judges to loosen the rules, and nobody complained except the defendants and their lawyers. 

Nobody felt terribly bad about the ways Title III was ignored and abused when it came to drug dealers and mobsters.  And rulings chipped away at the rules, until the rules were nothing more than mere stumbling blocks to step over.  All those former prosecutors who got gigs at Biglaw were silent about the ways Title III was being undermined.  After all, it had nothing to do with their clients, just those nasty drug dealers and mobsters. 

Now that these weapons against heinous criminals have been turned on defendants accused of corporate and financial crimes, previously upstanding businesspeople and pillars of the community, it’s too late to wonder how all the protections of Title III have been eviscerated. 

So Judge Richard Sullivan is deeply troubled?  I bet that will make Craig Drimal feel better as he listens to recordings of conversations he had with his wife about their marital life played to a jury.  Let’s hope Judge Sullivan doesn’t sprain his finger wagging it so hard.