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Wiretapping grows and goes mobile

Updated: 2013-07-05T19:07:49Z

By MARK MORRIS

The Kansas City Star

Are cops bugging office and home phones?

That is so last century. Today’s law enforcement wiretap is far more likely to be on a “portable device,” most likely a cellphone, according to a new report by federal court administrators.

And for the first time, the report noted, U.S. law enforcement has encountered encryption schemes that prevented investigators from understanding the messages they’d intercepted.

The new study, an annual snapshot of court-ordered wiretaps produced by the Administrative Office of the U.S. Courts, focused exclusively on law enforcement electronic surveillance and not on national security wiretaps approved by the Foreign Intelligence Surveillance Court, which have become controversial in recent weeks.

The 2012 wiretap report is deliberately vague to protect prosecutions and ongoing investigations, but it provides a window into developing law enforcement trends. The Kansas City area got a distinguished mention in one of the few specific nuggets scattered throughout the brief study.

The report noted that a federal wiretap in western Missouri intercepted the most messages of any bug in the country last year. That unidentified wiretap corralled 34,261 messages in 60 days.

Local investigators have endured chatty suspects before. In 2010, a 118-day wiretap on a cellphone in western Missouri intercepted 74,144 messages, the second highest number of intercepts on a single bug that year.

Kansas City-based federal prosecutors declined to discuss the 2012 case, saying the investigation remains open.

Nationwide, the report reflects a surging enthusiasm for wiretaps among investigators and prosecutors. Applications for wiretaps to state and federal judges more than doubled between 2002 and 2012, from 1,359 to 3,397.

Narcotics investigations accounted for 87 percent of wiretap investigations.

Hanni Fakhoury, a staff attorney for the Electronic Frontier Foundation, questioned whether such an invasive surveillance technique really is effective given that the nation appears to have made so little progress with its drug problem.

He explained that to get a wiretap in criminal cases, prosecutors and investigators must convince a judge that they’ve exhausted all other investigative techniques and that electronic surveillance is the only option left to make the case.

“No longer is it an exceptional tool used in extreme circumstances,” said Fakhoury, a former federal public defender in San Diego. “Now it’s a regular part of the investigation. If you have a drug case beyond the kid on the corner selling joints, you’re going to see a wiretap.”

John Osgood, a local criminal defense lawyer who served as a federal prosecutor in the 1980s, said the proliferation of wiretaps is one element contributing to a trend in both Kansas and Missouri of large, multi-defendant drug cases.

“You see 20 or 30 people ensnared in these cases,” Osgood said. “They’re not doing a good job distinguishing between who is a major player and who is a casual junkie who gets caught up because he called on the phone.”

Our love for cellphones is apparent in the data. For the last decade, most of the wiretap authorizations have been for portable communications devices, such as cellphones and digital pagers. But the number of wiretaps authorized for homes and businesses has cratered over the same period.

In 2002, about 14 percent of the authorized intercepts were specifically for homes or businesses, while that figure shrank to about half of 1 percent last year.

Federal judges in Kansas and western Missouri authorized 11 and 29 wiretaps respectively last year. No Missouri or Kansas state judges approved any intercept requests. The federal figures generally showed an upward trend in wiretap authorizations in both states in the five years preceding 2012.

And questions about unbreakable encryption emerged as a wiretap issue for the first time in 2012. The report said law enforcement spotted coded messages on 15 wiretaps in 2012 and on seven wiretaps conducted in previous years.

In four cases, investigators could not decipher the plain text of the messages, the first time since court officials began asking about encryption in 2001, the report noted.

The report did not specify the communications platform — such as computer or cellphone — on which investigators encountered the encryption problem.

Encryption is an issue to watch in the coming years, Fakhoury said. It could prompt law enforcement to return to Congress and ask that electronic information service providers make it easier for them to read messages in the clear.

“When the government gets thwarted by encryption, they have to look for other ways to get around it,” Fakhoury said.

A good start, Osgood said, would be for criminals not to send text messages to their co-conspirators, something he sees too much of in his defense practice.

“I don’t know why people text,” Osgood said. “You’re leaving a trail that anybody but a blind man could follow.”

To reach Mark Morris, call 816-234-4310 or send email to mmorris@kcstar.com.

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