California Attorney General Has Blocked Public Access to Data on Wiretapping

In the government’s latest assault on civil rights, California Attorney General Kamala Harris has announced a new policy last month that the California Department of Justice (“CADOJ”) will only be issuing its annual reports on wiretaps as locked pdfs– which would significantly limit the public’s ability to view the information.

Every year, the CADOJ is required to compile the details on each state-level wiretap order filed by local prosecutors.  The report that is released yearly is mandated by the state legislature as a means to facilitate transparency.  See the 2014 California Electronic Interceptions Report (released last month) here.  The report for 2014 shows a massive spike (an increase of 44%) in California’s wiretaps, mostly in Riverside County as compared in 2013.  Further, on a national level, the U.S. Drug Enforcement Administration has also showed an exponential increase in the use of wiretaps, increasing from 3,394 in 2000, to 11,681 electronic intercepts last year. DEA agents have also taken to making requests directly to state prosecutors instead of making federal requests, meaning most of the requests were never even reviewed by a federal judge.

Both the DEA and CADOJ offer little explanation regarding the massive expansion of wiretaps; they merely vaguely refer to the need to fight drug crimes.

The Lay of the Land

Wiretaps allow the police to listen in on a citizen’s phone calls and electronic communications.  They are considered a search and seizure under the 4th Amendment when a person has a legitimate expectation of privacy.  See Katz v. U.S. (1967) and Smith v. Maryland (1979).  Since September 11, courts and Congress have eroded privacy rights in the name of fighting ‘terrorism.’  The U.S. Patriot Act expanded 4th Amendment exceptions for spying on citizens as well as the government’s ability to search records and property of citizens. The legal safeguards for wiretaps are supposed to be the same in both state and federal courts.  To tap into private communications, police must still persuade prosecutors and a judge that they have probable cause to think that the communications will contain evidence of a crime, and that they have no other way to build their case.  As such, they must obtain a warrant to do so.

CA Penal Code 631 contains the state wiretapping law.  Any recorded or intercepted communication that has been obtained by an illegal act of wiretapping (ie. without a warrant or probable cause) is still inadmissible as evidence against you.

San Diego Wiretapping Attorney

The Law Offices of David M. Boertje handles all misdemeanor and felony criminal cases, including drug charges and unlawful search and seizures.  We can assist you if you are currently facing charges in the San Diego area. Don’t hesitate to reach out to us today for professional legal assistance.