User:Mike Carey/sandbox/Plain Hearing work

Michael Carey thought he was buying a new cellphone, in fact, the line had been quickly recycled from someone else and there was a tap still active on it. Yes, you read that correctly. He walked out of the cellphone store with a pre-tapped phone. The three second call he made to be sure it was working was already recorded. The government supplied him a transcript of that brief call as part of the evidence it used to send him to prison for twelve years based on listening to his conversations on his new phone. Thanks to a September 7, 2016, court ruling he finally has a chance to get his case tossed out. And in the process the government may have to disclose a wide range of Classified Surveillance Techniques it uses, the kind of techniques that Edward Snowden revealed. The court ruling allows Carey, and any other defendant whose conversations are used against him, to use a new angle of attack. Defendants can inquire into then the government knew or reasonably should have known they were listening to someone different than the party targeted in a court-approved wiretap.

The PLAIN HEARING DOCTRINE Key Issues:

1) When can the government use information overheard on a wiretap that is NOT coming from the targeted people?

2) If the government knows or SHOULD KNOW the people talking are not the targets of the tap do they have to stop the tap?

3) If someone buys a new phone that is activated in the cellphone store but the line assigned is already tapped because the prior users were tapped, can the government keep listening?

4) DO you have a reasonable expectations of privacy when you start to use a new cellphone?

5) Does the cellphone service-provider have a liability to a customer who buys a phone with a line that is already tapped? The Ninth Circuit Federal Court of Appeals (covering the west coast) recently created a new doctrine in US v Carey. The "PLAIN HEARING DOCTRINE" allows the government to use information it overhears while tapping a line, even if the speakers were not targets of the wiretap. But there's a limitation of gigantic importance for the whole question of government secret surveillance using Classified Technologies, for example the programs revealed by Edward Snowden, or discussed in a recent flurry of news articles by Devlin Barrett of the Wall Street Journal and Brad Heath of the USA Today.

If the government knew or SHOULD HAVE KNOWN that the people speaking have nothing to do with the people targeted by the tap, the government must stop listening. They can apply for a new wiretap on the new people, but they cannot just use the information overheard on the original tap. The ability of the defendant to use the discovery process to determine if the government SHOULD HAVE KNOWN they were listening to the wrong person lends straight to a Novel use of the Classified Information Procedures Act ("CIPA")

Government has access to a wide range of technologies such as voice recognition, facial recognition, cell tower simulators (called "dirtboxes" or "stingrays") and GPS locators. In Carey's case the Ninth Circuit decision lets him show that using these technologies the government SHOULD HAVE KNOWN the minute the phone was activated that he was a new party inside a cellphone store. Later in the day when he crossed the border into the U.S. from Mexico various tracking technologies easily could have shown that he and his new cellphone were in a car, with no other passengers, and that he had nothing to do with the targets of the wiretap. If the government refuses to disclose its technologies it can be grounds for dismissing the case. Thus the exception to the Plain Hearing Doctrine creates a potentially massive important new way to attack Classified Surveillance.