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May 27, 2015

New Decision In New York Federal Court Rules FBI “Two-Minute Rule” Unlawful

By Michael H. Joseph

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New York City and Westchester federal criminal defense lawyers should be aware of a recent decision concerning the federal wiretap statute.A federal court has recently decided that the FBI’s “two-minute” wire tapping rule on personal calls that are non-criminal is unlawful. The two minute rule has been used by the FBI for years when conducting investigations using wire tapping to convict criminals. The two minute rule treats calls less than two minutes as objectively reasonable thus shielded by immunity.

Although the circuit denied the rule that grants agents two minutes of presumption, they dismissed a case brought against the FBI by a woman who claimed her privacy was violated when her personal calls were tapped during a criminal investigation. Mrs. Drimal the woman who filed the civil suit against 16 FBI agents and her attorney believe the two minute rule is invasive and needs to be put an end. Mrs. Drimal’s husband Craig Drimal was convicted of insider trading and is now serving time for his offense. When the FBI was gathering information regarding his crime they tapped his phone to aid their investigation which was legal. Ms. Drimal’s claim is that the FBI failed to “minimize” their surveillance when she and her husband were having personal conversations which she believes is “inexcusable and disturbing.”

The agents accused of wrongfully wiretapping calls moved to dismiss based on qualified immunity, their motion was denied although Drimal made no mention of the requirement that agents “minimize” their wire tapping of calls that were not crucial to their investigation. Although the agent’s motion was denied, it was decided that Drimal’s complaints only recited legal conclusions. Due to the fact that there was not a careful look into each agent’s minimization efforts the agents were not charged. The FBI felt that the two-minute rule should be upheld and references United States v. Bynum where the court held a wiretap that monitored 2,058 in large a narcotics case did not violate the title III minimization requirement.

Judge John Walker stated that the Drimal case was entirely different than the case dealing with narcotics because the narcotics case was large and needed to spend a longer time listening to the calls to determine if they were private or not. He stated that it would only take seconds to determine if a call between husband and wife was personal or not. When an eavesdropping warrant is granted there must be probable cause established to believe that particularly described communications that have not yet taken place will be discussed over the phone. Each warrant is required to include a minimization prevision; however there is no specification as to what the minimization clause must contain which blurs the lines regarding what is considered an appropriate amount of time to listen to a call before determining if it is private or not. In short what the provision says is that conversations that are irrelevant to an investigation should be treated differently than conversations that are relevant. A monitor is required to either not listen or only spot check conversations between spouses regarding intimate family matters.

This case brings up a common occurrence of the FBI being intrusive within citizens private lives. They claim they are only trying to protect us from threats like terrorism, but that is not always the case. It has been proven by computer hackers like Edward Snowden that the FBI is spying on ordinary citizens for no reason, searching for incriminating evidence without the probable cause that is necessary. New York City and Westchester federal criminal defense lawyers must make sure their clients are not victims of intrusive surveillance done by the FBI.

 
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