Intercept evidence

[ewx]

What's the logic behind the refusal to use phone tap evidence in court?

I'm having trouble imagining that the Home Office is acting out of a deep-seated concern for the personal liberties of the people tapped, given that their preferred alternative is to lock suspects up without the inconvenience of a trial in the first place; anyone whose phone is tapped presumably knows what is in the intercepted conversation anyway, because they were party to it; and the fact that your phone was tapped doesn't reveal anything more than that the British state was interested in what you were saying, which you knew anyway because you're being done under the prevention of terrorism act.

Protecting sources is certainly something to worry about in some cases, but I don't see how it applies to phone intercepts.

Comments

[emperor]

Maybe the evidence they're thinking of is the suspect talking to an agent posing as a terrorist, or somesuch?

[songster.livejournal.com]

If a large proportion of $badguys don't realise we can eavesdrop on their conversations, we might not want tip them off that this is something we can do. They may think that $shinytechnology (e.g. scrambled mobile phones of some sort) makes them secure, and we'd rather they kept on thinking that.

If we've managed to bug the phone of $bigbadguy in $randomstan, we might not be able to bring him to justice because $randomstan won't play ball. We then don't want to use that evidence in a trial of a $littlebadguy and tip off $bigbadguy that he's being bugged. Similarly if $secretagent inside $badorganisation allows us to listen in on all his/her conversations, we don't want to blow his/her cover.

If a large proportion of $badguys don't realise

[ewx.livejournal.com]

They don't seem to be making any secret of it. I think it's safe to assume that would-be terrorists are capable of watching the news.

[gerald_duck]

Perhaps we don't actually have any phone-tap evidence against these people, and admitting this would be far more damaging than opposing its admissability in court?

[ewx.livejournal.com]

That would seem a strange reason for it not to have been admissible in the first place...

[hsenag.livejournal.com]

It was originally non-admissable because of the privacy implications, I believe. Ironically human rights activists are now being forced into taking the opposite side on this issue to mitigate a worse evil...

[gerald_duck]

Quite.

In an ideal world, using phone-tap evidence in court and indefinite detention without trial would both be thoroughly illegal.

[krabbe.livejournal.com]

In an ideal world, using phone-tap evidence in court [would be] thoroughly illegal."

In an ideal world, there would be no need for courts. In a mostly ideal world, phone-tap evidence would be admissible, but unnecessary, because actually getting phones tapped would require significant justification. As in: proof of the crime (abduction of a child) as justification to tap the phone to find out where the child's being held.

Phone taps *can* be justified. Usually they aren't, or don't actually turn up anything of value, but we're talking about an ideal world here, where border cases are the only candidates anyway.

A phone tap is better than (threat of) torture, as happened in Germany in the case of Jakob von Metzler (http://www.google.com/search?q=%22Jakob+von+Metzler%22+torture).

Re: If a large proportion of $badguys don't realise

[songster.livejournal.com]

Depends. They may have be assuming the intercepted communications were eavesdropped from one particular technology (e.g. landlines), when actually they were taken from something else (e.g. mobiles).

Just because they can watch news doesn't mean they don't make dumb security decisions.

Re: If a large proportion of $badguys don't realise

[ewx.livejournal.com]

You're missing the point, which is that if the government wanted to keep quiet about the existence of interception capabilities, it wouldn't be talking about them on the news.

Re: If a large proportion of $badguys don't realise

[songster.livejournal.com]

Mmmm. Maybe I give the terrorists credit for less intelligence than you do.

Anyway, I guess there's the double bluff gambit - if they *think* all their communications are monitored, it puts a crimp in their operations, and meanwhile they don't start a hunt for the insider that's *actually* leaking the info.

Re: If a large proportion of $badguys don't realise

[timeplease.livejournal.com]

The fact that interception capabilities exist isn't news. What has been kept reasonably secret so far is the extent to which they work. If intercepts were allowed to be used in court then they would have to be made available to the defence as well. From the defendent's knowledge of his communication history it might be possible to infer which types and modes of communication were most easily tappable, and which ones the government are currently having problems with: the government really doesn't want that to happen.

[gerald_duck]

I am, more or less, a layman in this field (though I'm a part-time cryptographer and a computer security expert). But I read some publically-available stuff, and chat with friends who know things… I reckon I could have some pretty shrewd guesses concerning the current state of the art in intercepts.

Sure, there would be one or two jewels in the intelligence crown that are guarded extremely jealously, but look back at Ultra — the intelligence gained in WWII by cracking German codes at Bletchley Park. At times, they had to allow literally hundreds of people to die, simply because to do otherwise would have revealed the secret that such codes were being cracked. In a similar vein, I'd expect the very finest intelligence techniques to be too precious even to use in apprehending the kind of (alleged) small-fry under discussion.

I very much doubt that using phone-tap evidence in a trial would reveal anything that was news to Al Qaeda.

[hairyears.livejournal.com]

Exactly. And cynics like me wonder if the main use of wiretaps as evidence in countries that do have them is to present the one and only out-of-context phrase that actually sounds incriminating.

[ewx.livejournal.com]

That's a problem with any kind of evidence, though; and in this case can be addressed by insisting that the defence be given complete copies.

Re: If a large proportion of $badguys don't realise

[cartesiandaemon.livejournal.com]

Not necessarily, or at least everyone doesn't think so. Think of people being bawled out for saying "$weakpoint really needs some security before terrorists realise it" publicly.

[hsenag.livejournal.com]

The evidence of what was said would have to be accompanied by evidence that it really was said by the defendant(s), which would probably reveal enough specific details of how the phone tapping operates to make it easier for others to avoid it.

[mooism.livejournal.com]

There was a case in New York, where the prosecution used as evidence a conversation they had recorded between a defendant and Osama bin Laden, which they had obtained through bugging bin Laden’s phone service. (Bin Laden was a customer of an American satelite phone company.)

Very soon after this evidence was presented in court, bin Laden stopped using his satelite phone.

But this doesn’t justify a blanket refusal to use phone tapping evidence in all cases.

[keirf.livejournal.com]

There seems to be to be a big difference between the government recommending that phone taps aren't used as evidence in court, and a law actually prohibiting it.

I mean, they didn't pass a law in WW2 prohibiting the use of information gained from Bletchley Park.

If anything, prohibiting its use suggests that phone tapping is more powerfull than it (probably) is.

[(Anonymous)]

i think wire tap evidence is not used in court is on the grounds of being too easy to falsify

[ewx.livejournal.com]

Paperwork isn't so hard to falsify either. Who're you?