XPost: alt.government.abuse, nyc.general, nyc.politics 
 From: pickins486@nyc.rr.com 
  
 DECISION DRIVES DEBATE OVER €ON-BOARD€ WIRET 
  
 APS Court Blocks FBI Listening 
 In Because it Disables the System 
  
 BY STEPHANIE FRANCIS WARD 
  
 On-board navigation systems, installed in autos to help with driving 
 directions and roadside emergencies, may be the new favorite toy of high 
 rollers. They are also temptations for the FBI, which in Nevada obtained 
 court orders to eavesdrop on high-powered conversations through the devices. 
  
 But according to a federal appeals court, the government can piggyback 
 on 
 the product so long as it doesn€t disrupt the emergency service. Last 
 month, 
 a panel of the San Francisco-based 9th U.S. Circuit Court of Appeals 
 ruled 
 that courts could order the system provider to let the FBI listen in 
 under 
 wiretap provisions of the 1968 Omnibus Crime Control and Safe Streets 
 Act. 
 However, because the monitoring itself requires the provider to disable 
 the 
 system from its planned use, the court blocked FBI requests for monitoring. 
  
 The system allows a cell phone connection to be opened and activated by 
 the 
 owner if the car is stolen or the driver is lost. Also, the system 
 automatically calls an operator if the vehicle€s airbags are deployed. 
 But 
 when the FBI monitored the line, the 9th Circuit said, the system 
 provider 
 was prevented from gaining access to it. 
  
 "The FBI, however well-intentioned, is not in the business of providing 
 emergency road services, and might well have better things to do when 
 listening in than respond with such services to the electronic signal 
 sent 
 over the line," Judge Marsha Berzon wrote for the majority in the 2-1 
 decision. "The result was that the [on-board service provider] could no 
 longer supply any of the various services it had promised its customer, 
 including assurance of response in an emergency." The Company v. United 
 States, 02-15635 (Nov. 18, 2003). 
  
 The opinion stems from a district court order the FBI obtained related 
 to a 
 public corruption investigation involving public officials and a strip 
 club 
 owner. The system provider, identified only as the Company, filed the 
 appeal. 
  
 However, a dissent by Judge Richard Tallman argues the district court 
 was 
 correct in granting the order because the FBI established it had 
 probable 
 cause to believe the individuals were engaged in criminal activity and 
 made 
 plans in their vehicles. 
  
 The statute, Tallman wrote, says the government may use wiretaps with a 
 "minimum of interference," meaning it must be done in a way that causes 
 the 
 least amount of disruption. However, the dissent said, the statute does 
 not 
 bar any interruption at all. 
  
 "Here, the record leaves no doubt that the Company complied with the 
 challenged order in the way least likely to interfere with its 
 subscriber€s 
 services and that, in fact, no actual service disruption occurred," he 
 argued. 
  
 The underlying case is sealed, which is why the on-board system provider 
 is 
 not named. According to Dominic Gentile, a Las Vegas attorney, the 
 plaintiff 
 provides the systems for Mercedes Benz vehicles. The FBI used the system 
 to 
 eavesdrop on client Lance Malone, a former Clark County commissioner and 
 strip club lobbyist, who was indicted in November for delivering bribes 
 to 
 elected officials. 
  
 Gentile plans to cite the opinion in a motion to suppress evidence. 
 Natalie 
 Collins, a public affairs specialist with the U.S. attorney€s office for 
 Nevada, would not say whether her office plans to appeal. Bennee B. 
 Jones, a 
 Dallas lawyer listed as counsel for the Company, did not return phone 
 calls 
 seeking comment. 
  
 Gentile has not heard of similar cases, nor has Elizabeth Phillips 
 Marsh, 
 who chairs the Rules of Criminal Procedure and Evidence committee of the 
 ABA€s Criminal Justice Section. 
  
 "I think the 9th Circuit was sort of stuck here, because in fact it is 
 an 
 oral communication within the statute, and there is a duty for private 
 people to help the government," says Marsh, a law professor at 
 Connecticut€s 
 Quinnipiac University. "But the only thing they could actually rule on 
 is 
 the notion that [FBI monitoring] completely incapacitated the emergency 
 system." 
  
 Some wonder whether the opinion would stand should the government appeal. 
  
 "This decision, being split, is going to create lots of litigation 
 around 
 the country," says Neal R. Sonnett, a Florida criminal defense lawyer. 
 He 
 suspects this case is not the first time the government has used an 
 on-board 
 system to monitor conversations. 
  
 "It€s scary to think that a device you actually pay extra for to serve 
 as a 
 protection against emergencies can be turned against you as a weapon for 
 law 
 enforcement," Sonnett says. "I€d be very concerned about buying a car 
 and 
 ordering the service if I know that it facilitates the government€s 
 abilities to overhear my conversations." 
  
 Congress may change the statute to allow the monitoring of on-board 
 systems, 
 says Ronald S. Safer, who previously headed the criminal division of the 
 Northern District of Illinois€ U.S. attorney€s office. 
  
 "People are quite aware of law enforcement€s abilities to tap phones. 
 That 
 is why bugs tend to be far more revealing than traditional wiretaps," he 
 says. 
  
  
  
 €2003 ABA Journal 
  
 > > who turned a blind eye to speakeasys during Prohibition. 
 > 
 > But not "miscegenation?" 
 > I guess he never had sex with a Black woman - too bad for him. 
 > Either that, or he was a typical KKKon$ervative hypocrite. 
  
 -- 
 "Bubba got a blowjob, BU$H fucked us all!" - Slim 
  
 George "The AWOL President" Bush: http://awol.gq.nu/4dawol.htm 
  
 WHY IRAQ?: http://www.angelfire.com/creep/gwbush/remindus.html 
  
 VOTE HIM OUT! November 4, 2004 
  
 --- SoupGate-Win32 v1.05 
  * Origin: you cannot sedate... all the things you hate (1:229/2)