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Lawyers: Government’s Position on FBI Impersonating Repairmen to Conduct Searches a ‘Grave Threat to Privacy’

Attorneys defending eight men charged with being involved in illegal gambling are seeking to prevent the government from using evidence FBI agents allegedly obtained through three warrantless searches and argue the government’s position in the case “presents a grave threat to privacy.”

Agents are accused of cutting off DSL internet service to private hotel rooms in Las Vegas to induce them to call for help. The agents then impersonated technicians to enter the rooms.

“The government believes that it can impersonate the professionals called to help and then conduct videotaped searches of the homes without any suspicion of a crime,” the attorneys write in a filing [PDF] in the Vegas sting case. “In other words, whenever citizens insist on maintaining their privacy from the government agents may torment them from outside to pry open the doors. That is the exact opposite of the privacy guaranteed by the Fourth Amendment.”

The FBI repairmen ruse has been defended by the government. Prosecutors allege that the eight men requested “an unusually large amount of electronics equipment and technical support” in late June. Security personnel at the Caesars Palace hotel were at one point advised by an “electrical engineer” that one of the villas “appeared to be set up for an illegal gambling operation.” The FBI “had reasonable suspicion to go into the rooms after being alerted by the state gaming control board about the hotel staff concerns.”

During a span of two days, the FBI convinced a “hotel computer contractor and the state’s gaming control board to shut off the Internet at different times and at one point delivered a laptop computer to try to see what was happening.”

Yet, according to the attorneys representing the eight men, they were not in the villa that Caesars’ employees had suspected of having “suspicious equipment”—Villa 8888. Although the residents subjected to searches in Villa 8881 and 8882 had been communicating with individuals in Villa 8888, there is no evidence FBI agents knew that when they deceived hotel residents to get into the rooms.

Defense attorneys write in their filing that the government contends three warrantless searches, which took place, were constitutional because “agents are free to deceive individuals about their identity to gain entry to private spaces without event reasonable suspicion.” The government also believes agents “may go even further and disrupt any service to induce the individuals to admit them so long as they do not claim there is an emergency such as a gas leak.”

Under the government’s “rule,” the attorneys add, agents may “cause a water leak so long as it does not create a catastrophic flood. It can disrupt cable television service because nobody really needs it. And without a doubt, the government believes that it is free to disconnect the home telephones and internet service of more than a hundred million Americans who can make calls and access the web via smartphone.”

The attorneys suggest that “no law enforcement agency in the nation has ever attempted” this kind of a “scheme” nor has any government agency ever “taken the position that it would be lawful.” There is no court that has ever approved such a “scheme” either.

Remarkably, the attorneys point out the government does not challenge the idea that what FBI agents did was “unprecedented.”

The filing outlines multiple ways that the FBI agents and prosecutors allegedly engaged in a coverup so that it would never be discovered that agents had employed this “scheme.”

Searches were allegedly documented in a manner to omit facts that would disclose the “scheme.” Fictitious conversations were allegedly recorded “solely to create the false impression that the internet outages were genuine.” Agents allegedly “cautioned each other on videotapes not to discuss the scheme.” Internal emails were allegedly crafted to make it impossible for anyone who did not know of the “scheme” already to find out. Documents that would be produced in discovery were allegedly prepared in a manner to “conceal the scheme.” Video recordings provided to defendants were allegedly timed to “omit the disconnection of DSL service.”

“It is unlikely that the representatives of the government involved in this case have ever in their careers been more directly and thoroughly accused of unethical and unlawful conduct. Offered roughly a month to respond to the allegation of an expansive cover-up, they have come up with: Nothing. Not a word. They do not deny it, because they cannot,” attorneys declare in their filing.

To attorneys, this is not like every other ruse or undercover operation that the FBI may have engaged in before because not only were agents lying about their identity but they “disrupted life inside the villas in order to force the occupants” to open their doors to agents.

Attorneys for the eight men did not find out about the ruse until they reviewed video and “heard an official make reference to turning off the internet access.”

On October 31, The New York Times Editorial Board wrote the “deceptive tactics” used by the FBI, “if not prohibited by the agency or blocked by courts, risk opening the door to constitutional abuses on a much wider scale.”

The Editorial Board recognized that the agents had no “probable cause to believe anything illegal was happening in two of the rooms they searched.” A “previous ruse by the agents had failed when a person in one of the rooms refused to let them in.” Once the agents deceived their way into the rooms, what they saw was “men watching soccer matches and looking at betting odds on their computers.”

“There is nothing illegal about visits sports-betting websites, but the agents relied primarily on that evidence to get their search warrant. What they failed to tell the judge was that they had turned off the Internet service themselves.”

As George Washington University law professor Stephen Saltzburg said to NPR, if this tactic is acceptable conduct for law enforcement, “It means the government can cut off your service, intentionally, and then pretend to be a repair person, and then while they’re there, they spend extra time searching your house. It is scary beyond belief.”

Creative Commons Licensed Photo by Stefanoka

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."

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