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When are attorney-client conversations safe from eavesdropping?

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Confidentiality of attorney-client communications is critical. However, the risk of eavesdropping is always present. A face-to-face attorney-client meeting is the best way to assure confidentiality; if the lawyer’s office might be bugged, the attorney and client can meet in a neutral venue.

E-mail is far from private (it can be intercepted between sender and recipient, and can be viewed by people snooping around on the sender’s and recipient’s computers); cordless phone calls can be intercepted through the radio waves (Price v. Turner, 260 F.3d 1144, 1147 (9th Cir. 2001)); and jail calls sometimes are recorded unless a secure line is available and used. Also, snoopers can pick up another phone connected to the same phone number (either from an existing phone set or by attaching a phone to the master phonebox connected to the phone number); phones sometimes are bugged; eavesdroppers may be within earshot (or electronically-enhanced earshot) of a conversation; and snail mail can be intercepted. Sadly, as communication technology has marched forward, so have more sophisticated eavesdropping techniques.

If the above eavesdropping scenarios were not bad enough, the FBI has figured out how to convert a cellphone into a roving bug — apparently without even touching the target cellphone — that will pick up conversations near the phone. The roving bug focuses not on intercepting phone conversations, but on converting cellphones into bugs themselves. Sometimes the only way to prevent this is not simply to turn off the cellphone, but to remove the battery entirely. Roving bugs are particularly effective with the wildly popular Motorola Razr, as well as Nextel and Samsung cellphones.

Recently, a federal judge in New York upheld a search warrant allowing the use of a roving bug. The case is U.S. v. Tomero, Crim. No. 1:06-cr-00008-LAK (S.D.N.Y.). See the ZDNet article here. The Tomero court opinion not only discusses the roving bug technology, but also reveals that the FBI had attached a roving bug even to the cellphone of an attorney for one or more of the defendants. Because the attorney, Peter Peluso, ended up pleading guilty and helped the FBI record conversations with defendants in the case, we may not see a court opinion in this Tomero case about the legality of bugging attorney Peluso’s phone, and the test for determining when conversations lose attorney-client confidentiality (particularly where, as here, the attorney was suspected of engaging in conversations to assist the commission of crimes).

If this Tomero case gets appealed, the appealing defendants will likely include an argument that a search warrant authorizing a roving bug violates the Fourth Amendment’s requirement that a search warrant particularly describe the place to be searched. The Tomero trial court rejects this argument by claiming that the issue is mooted (at least in the Second Circuit) by U.S. v. Bianco, 998 F.2d 1112 (2d Cir. 1993), cert. denied, 511 U.S. 1069 (1994).

Thanks to a criminal listserv member for posting on this roving bug issue. Jon Katz.