The Supreme Court might make it easier for cops to tap your cell phone

Cops might be able to turn to any judge, even ones known to grant overbroad requests, for a wiretap.
February 20, 2018, 5:45pm

Every year, judges issue thousands of wiretap orders, a type of warrant that allows law enforcement to listen in to phone calls and even read text messages. And if the federal government gets its way in front of the Supreme Court this week, obtaining a wiretap could become even easier.

The Supreme Court will hear arguments Wednesday in a case that will decide whether evidence obtained from wiretaps that go beyond their geographic jurisdiction should be allowed at trial. Right now, the rules Congress set 50 years ago to regulate wiretap orders prohibit what’s called “judge shopping”; police in New York seeking to wiretap, for example, can’t turn to a judge in Texas who’s more willing to grant their request. Despite the law’s clarity, wiretap orders do go beyond their geographic jurisdictions sometimes, according to experts.

If the justices rule to definitively allow this type of evidence, cops could turn to any judge, even ones known to grant overbroad requests, for a wiretap. That would make wiretaps not only easier to get but also potentially more extensive.

“It’s suspicious to have a blanket authority,” said Ben Levitan, a telecom industry veteran who helped create America’s early cell networks and worked with wireless companies to create wiretap systems for mobile phones. “If wiretap orders could be obtained anywhere, to be used anywhere, investigators could absolutely go ask a judge who is known to be more lenient.”

The case, Dahda v. United States, involves twin brothers convicted of masterminding an interstate drug conspiracy based in Kansas. To gather evidence before trial, DEA officers received a judge’s permission to tap the cell phones of members of the narcotics ring. That’s standard procedure, but one element of the order makes the case controversial: the judge who granted the request specifically stated that even if the targeted phones left Kansas, the DEA could still continue intercepting communications.

“If wiretap orders could be obtained anywhere, to be used anywhere, investigators could absolutely go ask a judge who is known to be more lenient.”

But defense lawyers appealed the drug traffickers’ conviction, arguing that the judge’s order directly violates the Wiretap Act — which Congress made in the image of the property and privacy protections granted by the Fourth Amendment. While Dahda doesn’t explicitly ask how to interpret the Constitution, courts have increasingly grappled with how to apply privacy protections to new technologies in recent years.

“The reality is, and the reason why this case is coming up before the Court in the first place, is that people now are mobile and move in ways that were not predictable in 1968,” said Jen Daskal, an American University law professor who specializes in privacy law.

READ: How cops hack into your cell phone without a warrant

Congress passed the Wiretap Act in 1968, a time without cell phones. Then, the geographic rule was a simple way to limit data collection and protect Americans’ privacy. But today 93 percent of wiretaps are done on mobile phones, which unlike landlines, travel to more than one place. Requiring cops to seek a wiretap order for each new state or area that a cell phone travels to, the government argues, would be impractical and hinder law enforcement’s ability to do their job.

Even under the current rules, though, many irrelevant discussions get intercepted. About 80 percent of wiretapped conversations, for example, don’t mention any criminal activity. If the High Court makes wiretap orders easier to get, even more incidental communications could be swept up. Wiretap orders are also subject to time limitations, renewal schedules, and careful tracking by investigators and prosecutors. Legal experts fear that these checks-and-balances could be weakened if orders are routinely granted for any phone, by any judge across the U.S.

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Then again, the Supreme Court could also decide to nix allowing overbroad wiretaps as evidence, which could force law enforcement to adhere to the standard Congress set for them. Or the justices could kick the decision back to lawmakers, who would then have to update the statute for the modern era. Newly appointed conservative justice Neil Gorsuch’s absence in the ruling also risks a 4-4 tie. He already heard the case on the 10th Circuit, so he's recused himself.

“This is a case that could have major ramifications for how the Wiretap Act is enforced, and what the consequences are in a world where more wiretaps are done on mobile phones that move across territorial lines,” Daskal said.

Cover image: Supreme Court police officer R. Petre scans the area in the rain outside the Supreme Court in Washington, Tuesday, April 29, 2014, during a court hearing. (AP Photo/Jose Luis Magana)