Tuesday, December 11, 2007

The Ethics and Rules of Surveillance

I started this post almost a month ago, but it didn’t feel right, so I’ve left it simmering. I picked it up about two weeks ago. I think I’ve finally got a way to talk about this, and why this undercover stuff feels wrong, but seems logically justified.

Private Life Values in Conflict with Public Life Values

When human society began changing from premodern to modern (as social scientists label these things,) we changed from societies in which family loyalty, group loyalty, fealty were the most important measure of a person. The modern world - the world in which scientific rationality replaced traditional authority - made merit the main measure of a person, and logic and rationality the path to truth and justice.

The point is that today we live in world with two major systems of rules. (Yes I know there are more than two, but for this situation, bear with me and accept two.) In our private lives, loyalty to family (and close friends and associates) is one of the most important standards. We accept parents standing up for their children even when the children did something terrible. We think that is normal and natural. In our public lives, rationality and merit are supposed to be the standard. The United States is a country based on the rule of law, not the rule of men. Everyone is supposed to be equal before the law.

But we can’t shut down our private value system when we go to work everyday. We make friendships with people at work and our relationships with them are both professional and personal. So these two value systems overlap in our lives. We have laws against nepotism because we recognize that it would be hard to use objective, rule of law, standards when a family member is involved. We have conflict of interest laws and require people recuse themselves when these two systems overlap.

As much as we like to believe in this separation, except for androids like Data, the separation doesn’t really exist. For most people when emotion and reason are in conflict, emotion wins. Professors Jules Lobel and George Loewenstein write,
Intense emotions can undermine a person's capacity for rational decision-making, even when the individual is aware of the need to make careful decisions.
Rule of Law versus Personal Loyalty

Where’s all this headed? Patience, I’m almost there. In our public world, we talk nobly about obeying the law, but in our private world we may go over the speed limit, we may pad our charitable contributions in our tax returns, and we may give preferential treatment to good friends when we deal with them professionally. We live with an inherent conflict between the rule of law and the rule of me and my friends.

I think this is hardwired into most of us. We learn about this early on. Telling the teacher about another student who broke a rule, makes us a tattletale. We have lots of other negative terms for being disloyal to the group. Should you ‘rat’ on your friend who cheats on his exam? College honor codes place students in a moral dilemma. Should you ‘betray’ your friend? Blowing the whistle is the positive term for someone who ‘squeals’ on his organization when it hides its illegal actions. A study for the International Association of Chiefs of Police found that
· 79% of respondents said that a law enforcement Code of Silence exists and is fairly common throughout the nation.
· 46% said they would not tell on another officer for having sex on duty.
· 23% said they wouldn’t tell on another cop for regularly smoking marijuana off duty.

I wonder what the response would be for FBI agents.

So when the FBI and the federal prosecutors offer (bribe) witnesses a chance to reduce their sentences if they do undercover work, if they rat on their partners, there is an inherent conflict of the personal and public systems of ethics. The part that I think has bothered me, but I haven’t been able to articulate until now, is that in the court of law, the private value system of loyalty is treated as if it didn’t exist. Only the rule of law matters. Yes, the legal code of the United States as an extension of the US Constitution is the backbone of our democracy. The Constitution is like a legal contract that the people of the United States agree to live by and it is the legal blueprint
... to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity...
But the government that is formed based on the rule of law is merely a means to an end that is addressed more specifically in the Declaration of Independence. There we find that "Governments are instituted among Men" to secure "certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

For most people I've ever met "life, liberty, and the pursuit of happiness" includes the bonds of loyalty of family and friends. So, yes, the rule of law is important, but the value of loyalty is probably a more basic human characteristic. It is the reason we need the laws. And so when in court, the rule of law is the only important value, and humans are pressured into violating their loyalty to close friends with no acknowledgment that this is also an important value, we naturally feel uncomfortable, even violated and betrayed.

Use of Undercover agents

There's no question that in the Alaska political corruption trials of 2007 the surveillance tapes made all the difference with the juries and the public.
  • Hearing a politician say in his own words he knew what was happening
  • Listening to another politician slurring his four letter words and joking about getting a job from the drunk lobbyist
    Default-tiny FBI tape of Pete Kott 01 uploaded by AKRaven

  • Seeing the money handed over from the lobbyist’s pocket to the politician's, followed by profuse thanks and promises to help in any way (the hand off is toward the end of the tape, first he's trying to get help for a $17,000 credit card problem.)
Without the tapes, it would be one person's word against another's.

The Pros and Cons of Surveillance Work

There are powerful arguments FOR doing the undercover work but also troubling arguments against.

Reasons For Undercover Surveillance:

  • There's no other way to get the information. These are things not meant to be heard by others. There are no written contracts, just people verbally agreeing to break the law, often using code words (prison warden in Barbados for Kott.) Anchorage Daily News editor and reporter Rich Mauer told PBS:
    Journalists don't get to tap phones. Journalists don't get to—to place secret cameras. So, the FBI is listening in on conversations that we thought maybe were happening. But lo and behold they really were, and we're getting to—to hear these things.
  • The victim often is 'the general public,' not a specific person who can file a complaint. So without the intervention of an investigatory agency with extraordinary powers, no one would be in a position to file a complaint.
  • Without this sort of evidence, it is difficult for juries to determine where the truth lies. They hear different witnesses, but which one should they believe? Simply because one is a better actor doesn't mean that one is telling the truth.
  • Hearing it directly from the person's mouth on tape allows the jury to hear the exact intonation - whether it is said in jest or in anger, whether one word is stressed or another. Reading the transcript allows the reader to interpret the words in many different ways. Prosecutor Nick Marsh, in his closing argument in the Kott trial, said that this case had unique evidence, that because of the hours of electronic surveillance

    • you the members of the jury have been able to sit in a ringside seat as they committed the crimes in the indictment.
  • Playing the tapes can get the criminal to plead guilty and cooperate with the FBI and prosecutors. This certainly worked for Bill Allen and Rick Smith..

Reasons Against Undercover Surveillance
  • Entrapment - would these people have committed a crime independent of this? The basis for Tom Anderson's conviction was the cooperating witness' offer to pay Anderson for helping out in ways consistent with Anderson's ideological beliefs.
  • Motives of the cooperators - To get their own sentences reduced. There is a powerful incentive to paint the picture the prosecutor wants to hear in court, even if it isn't true.
  • Invasion of privacy
    • Surveillance involves listening to personal conversations. The hour or less of actual surveillance tape played at each of the three trials was a tiny fraction of the many hours of actual taping. Much, if not most of what was heard had nothing nothing to do with the investigation
      • The FBI has a word - minimization - for deciding what they should not listen to and guidelines for turning off the recording device. At the end of this post I have my notes from court when one of the FBI agents discussed the procedures for surveillance tapes.
    • The tapes also pick up the conversations of people who have nothing to do with the investigation
  • Betrayal of associates - We live with overlapping values systems. As citizens we value the law. As members of families and of groups of friends, we value our loyalty to each other. In these cases, people who described their relationships as "like family" were now required to betray those relationships in order to save their own skin. The easy response is that "they were criminals," "they were breaking the law." But how easy would it be to turn in your child, your best friend? We have powerful social norms against betraying our friends and colleagues.

Tentative Conclusion includuing the need for better oversight

Just because some people drive badly when drunk, others shoot people with guns, and still others do a lousy job teaching third grade, doesn’t mean we should ban alcohol, guns, and third grade teachers. FBI surveillance can be abused too. Because some people do these things badly doesn't mean the activity itself is bad. Some things are more prone to abuse than others and thus we have restrictions, special oversight, and other measures to prevent abuse. Yet, FBI (and other) surveillance, by necessity is done in the shadows. Abuse is harder to discover. Therefore, I think it is necessary to design better oversight processes including more representive parties involved. Yes, I understand, the more who know, the harder to protect the investigation. But if they can trust the criminals who wear the wires, they can trust carefully, but representatively chosen monitors of the process.


One other observation. At the trials, I was alarmed by the power of the US Government - represented by the FBI and the US Department of Justice - and the potential to abuse that power. The FBI and DOJ (Department of Justice) generally had, in court, close to a ten to one advantage over the number of defense people. When Kott’s attorney insisted that each tape introduced as evidence be verified by the agent who monitored it, the government had the budget to bring about 18 agents into court - most from outside Alaska. This doesn't count the thousands of hours of spent on the investigations and trial preparation. While the DOJ may complain about limited funding, their campaign chest is much bigger than any of the defendant's, and probably than all of them rolled together - including the $500,000 each that Allen and Smith got for legal defense as part of the sale of VECO.

I was alive when J. Edgar Hoover was the head of the FBI and used it as his own private investigation unit:

The committee staffs report shows that Hoover willingly complied with improper requests from Presidents Franklin Roosevelt, John Kennedy, Lyndon Johnson and Richard Nixon. He gratuitously offered political intelligence to Presidents Dwight Eisenhower and Harry Truman, but both seemed unimpressed.

While everything I saw in court suggested a high level of integrity and professionalism on the part of the FBI and the DOJ, I have no idea of what went on outside of court. And if the Code of Silence cited above for police is part of the culture of the FBI, it would be hard to know when something did happen.

At this point, I don't have any strong recommendations one way or the other, but I wanted to record my observations based on the trials before I forget this all.

The Rules of Surveillance

Finally, a fair amount came out at the trials about the steps the FBI must go through before, during, and after the wiretaps and the use of the surveillance video recordings. Below are my notes from October 23, 2007 when Prosecutor Joe Bottini was interrogating FBI special agent Steve J. Dunphy, from Cincinnati Ohio about what it takes to get orders for a wire tap or video surveillance and then restrictions they have when taping. These are spell-checked notes that might be considered merely a sketch of what was all said. It gives you the basic outline, but some of the detail is lost.

First they have to get an application, then an order from a judge.

Bottini: All this in secret?
Dunphy: yes,
Bottini: purpose?
Dunphy: if it became known we were listening in it wouldn’t be fruitful
Bottini: Do phone company factor in this?
Dunphy: Yes, they are served with order and they would assist in getting it technically set up.
Bottini: Order cut to the phone company?
Dunphy: Redacted order
Bottini: Ordered not to disclose?
Dunphy: yeah
Bottini: How actually recorded?
Dunphy: When I started reel to reel. Now digitally onto portable hard drive then to other media, cd.
Bottini: Perfect or tech flaws?
Dunphy: You can bet on it [technical flaws]
Bottini: You have served as a monitor. Someone has to actually be listening real time?
Dunphy: yes/
Bottini: Purpose?
Dunphy: If only can record pertinent information, not about going back and listening.
Bottini: Required for minimization?
Dunphy: yes. if conversation not pertinent, personal, not related. the monitor will stop recording and stop listening. Back in a minute or whatever is reasonable to see if it changed.
Bottini: Is there a general rule of thumb on what you described? about how long go down ?
Dunphy: Generally told to go down a minute , but you learn what is appropriate as you go along. A learning curve as you learn the voices of the people. Minimization becomes more efficient as time goes on.
Bottini: Other kinds you can’t listen to?
Dunphy: Privileged, A lawyer. Those would be minimized right away and not turned on. Spouse, priest. Attorney client is the big one.
Bottini: If you are the monitor, is there a process to familiarize your self?
Dunphy: Have to read the affidavit with the case, meeting with one of the Asst US attorneys to brief on the case and minimization requirements
Bottini: Does monitor sit and take notes while calls intercepted?
Dunphy: Yes, record times, parties speaking, brief synopsis..
Bottini: Today’s tech also record date and time? [I think this means the tech for the recordings to be listened to in court that day.]
Dunphy: yes
Bottini: End of 30 day period what happens to original recordings intercepted. Dunphy: Original sealed and given to the court.
Bottini: Other types of electronic surveillance. You know about bug?
Dunphy: Yes, open type mic in a room.
Bottini: Video too?
Dunphy: yes.
Bottini: Authorization the same for intercepting phone conversation?
Dunphy: Yes, application process the same,
Bottini: application to court with affidavit. probably cause, all that?
When sought, G also has to request authorization to install?
Dunphy: Yes, sometimes to get mic into location, need to surreptitiously enter, then have to apply for that authority too.
Bottini: Same process with bug same as with phone, real time monitors?
Dunphy: Yes
Bottini: Same minimization with bug? Dunphy: yes
Same with privileged conversations? Dunphy: yes
Bottini: [Ever?] Just record it all and look later?
Dunphy: No, listen, if not pertinent stop it and on and on we go.
Bottini: Telephone intercept, Monitors real time take notes. Same with bugged monitor?
Dunphy: Yes, A little more because listening and watching, a little more awkward.
Bottini: Interception orders good for 30 days. Possible might not go the whole 30-days?
Dunphy: yes. Bottini: Examples?
Dunphy: Not getting any worthwhile activity, might change phone number, or something happens where you have to take down case, life in jeopardy.
Bottini: Were you asked to come to Alaska to assist?
Dunphy: Yes, March 2006.
Bottini: Specifically asked to do?
Dunphy: Monitor bug in hotel room in Juneau
Suite 604 in Baranof? Yes

Bottini: When installed? Dunphy: Jan
Bottini: Did you familiarize yourself with investigation. Dunphy: Yes, best I could

What did you do? REad the affidavit, with the agents monitoring before us, the agent, etc.
Aware or made aware that wire taps had been authorized? yes
What did you know? Yes Cell phone in SEpt for RS, couple months later November on BA’s cell, home phone.
While served as monitor, what is your day like?
Two months, over time familiar with voices of people in suite.
BA? yes
RS? He lived here, so, obviously
VK? one time - March 30, 2006.
VK here today? Yes he is seated there in the red tie.
Original portable hard drive recorded to is sealed.
But recorded video and audio. yes. when we thought activity ceased, dubbed from hard drive to dvd, and could make multiple dvd’s from that. original sealed.
While monitoring bug, are you able to see and hear what is going on? Yes, within the camera view of the camera.

1 comment:

  1. I had wondered about what we didn't hear on the tapes, Professor. How many things that we didn't see that would have changed our opinions-- or made them worse because of persuasion by the FBI "bargaining" with the defendants. Were there other things happening in room 604 that would have made this an instant smut movie? (Money can be seductive beyond political maneuvers.)

    This made me think of an anime quote, "If everything around you is dirty, don't you have no choice but to get dirty too?" - Kozue (Revolutionary Girl Utena)


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