Late last month, the high-profile defense team of accused Chinese mobster Paul Phua and his associates got big press for claiming the government had shut down their clients' internet access to provide an excuse to illegally enter their Caesars Palace villas in Las Vegas. In response to the outcry that ensued, FBI Director Jim Comey scolded the media for judging the government's conduct before the Department of Justice had a chance to tell its side of the story.
"[I]t would have been better to wait for the government's response and a court decision before concluding that the FBI engaged in abusive conduct," he wrote in the New York Times.
Now the government has formally responded, and their explanation might be even more ridiculous than the defense attorneys suggested. In all seriousness, the feds argue (in part) that there are no legitimate reasons to find slow hotel Wi-Fi inadequate.
When Phua's lawyers first revealed details of the search of their clients' villas, they warned of the chaos that will result if people come to suspect their cable repairman is really an FBI agent.
"The next time you call for assistance because the internet service in your home is not working, the 'technician' who comes to your door may actually be an undercover government agent," Phua's lawyers claimed. "He will have secretly disconnected the service, knowing that you will naturally call for help and—when he shows up at your door, impersonating a technician—let him in." Rather than fixing your internet access, the brief continues, the FBI agent "will be videotaping everything (and everyone) inside."
That's sort of what happened to Phua. According to the government's own narrative, on July 3, it made a plan with a DSL contractor, Wood Telemanagement Services, "to disrupt DSL services with the help of DSL contractor the next morning" as part of a scheme to "surreptitiously gain entry to the Villas." On July 4, the cable contractor shut down the DSL for two villas, intending to include 8882, where Phua was staying, in the shutdown. But instead, he cut off service to an adjoining villa, 8881. Later that morning, the FBI accompanied the DSL contractor to villa 8882 to deliver a laptop Phua had asked for and unsuccessfully tried to use it as a ruse to enter the media room of the villa, going so far as to ignore the butler, who ordered them to stay in the butler's pantry.
Later in the day, the DSL contractor, having agreed to participate in a scheme to enter villas as part of the FBI ruse, and having realized he had screwed up and disconnected the wrong villa upon getting a service call from 8881, nevertheless entered that villa and took pictures the FBI used as evidence. The next day, finally having turned off the DSL in villa 8882 (and maybe another one—the brief admits no one can "precisely recall"), FBI agents pretending to be the DSL contractor entered Phua's villa and filmed what they claim is an illegal Asian online sports wagering website.
Real Keystone cops stuff here. But along the way, the feds have made several troubling arguments.
First, the government argues that Smith v. Maryland, a 1979 Supreme Court precedent involving the collection of phone records, legally authorized them to ask Caesars to shut down DSL service Phua had requested. Mind you, Smith v. Maryland—which is the same precedent the feds claim justifies the phone dragnet that aspires to collect all the phone records of all Americans—has to do with collecting data, not shutting down internet service. Yet the government offers no explanation of how the precedent applies but instead just plops it in the brief, as if invoking it magically authorizes all conduct involving third parties.
The government later makes a better argument: that according to its terms of service, Caesars had the right to turn off Phua's internet because Caesars' employees in yet another villa, which was occupied by his associates, had taken pictures of the equipment, suspecting it was used for a gambling operation (even though by the time they entered Phua's, the DSL had been turned off in that other villa for about a day with no one noticing, suggesting it could not possibly have been used for gambling at the time it was shut down). Yet the government also invoked a precedent to claim that the search of the villa 8881 had nothing to do with the search of Phua's, even though they are connected by an internal hallway, and in fact the FBI admits they may have gone back into 8881 to help a "middle-aged man who seemed concerned with connectivity issues" after entering via Phua's villa during the July 5 entry.
Then the government argues that it is not responsible for the DSL contractor's entry on July 4 into 8881. It claims a DSL contractor who had already signed onto a scheme to turn the DSL into these villas off to create the pretense to go into them was engaged in a "private frolic outside of any agency relation" when he did so in the villa where he did manage to turn off the DSL. That's right—a private frolic.
Perhaps the most disturbing claim, though, is that we all have to be satisfied with crummy hotel Wi-Fi. To dismiss the argument that by turning off the villas' DSL, FBI had created an urgent need that obviated any kind of consent when the villa residents let in the FBI agents pretending to be DSL repairmen, the government claims that there is no legitimate need to seek better internet access than hotel Wi-Fi or personal cell phone tethers: "Defendants do not identify a single legitimate service or application that could not be adequately supported through the hotel's WI-FI system, their personal hotspots, or personal cellphones, nor could they."
The FBI is now claiming, the experience of travelers the world over notwithstanding, that nothing legal could require better Internet access than a hotel's slow Wi-Fi connection. (Perhaps the Wi-Fi in high-roller villas is better than it is for average travelers, but DOJ's brief doesn't make that case by describing the internet speeds Caesars Palace makes available to privileged guests.) Moreover, the government admits that—as many travelers reliant on hotel Wi-Fi can attest—the Wi-Fi just wasn't all that fast. "The DSL service was faster," the brief reads.
DOJ may well win this argument anyway, because the alleged mobsters were in a hotel and not their own private dwelling. Nevertheless, along the way, the feds seem to confirm the defense attorneys' worries that the Comcast guy at your door really may be the FBI promising to turn on the cable they just turned off. And DOJ seems to dismiss the plain fact that hotel Wi-Fi is usually useless, even for surfing the web.
But this is not just about shitty Wi-Fi. If the court doesn't throw out these warrantless searches, it might green-light the FBI to turn off your utilities to create an excuse to invite itself inside your home. Not just alleged Asian mobsters' long-term hotel rooms, mind you, but all our homes.
Marcy Wheeler an an independent journalist who writes about national security and civil liberties. Follow her on Twitter.