Legal Office Sinks Davis’ Wiretap Bill

Gov. Gray Davis’ proposal to let state and local police obtain roving wiretaps on suspected criminals was dropped from the legislation containing it Tuesday after the legislative counsel’s office concluded that it was illegal.

The proposal, a centerpiece of Davis’ State of the State address last week, had been welcomed by some law enforcement leaders but criticized by civil libertarians and some liberals.

Davis unveiled the idea at the outset of a reelection bid in which he faces challenges from three Republicans--former Los Angeles Mayor Richard Riordan, Secretary of State Bill Jones and investor Bill Simon Jr.--each vying for the GOP nomination to take on the Democratic incumbent.

Asked to size up the chances of a roving-wiretap bill passing now, Assemblyman Fred Keeley (D-Boulder Creek) said: “I think none. There is no opportunity, because whether the Legislature has the will or not, our attorney is telling us it is moot because we lack the authority.”

Although aides to the governor challenged that interpretation, the legislative counsel said that a state law authorizing roving wiretaps for state and local prosecutors and police would exceed the authority federal wiretapping law gives states, and would thus be invalid. President Bush signed legislation in October that broadened federal wiretapping abilities to target suspected terrorists, but that law did not expand states’ powers to allow roving wiretaps at the local level, the counsel concluded.

Davis spokesman Steve Maviglio acknowledged that Assemblyman Carl Washington (D-Paramount) dropped roving wiretaps from his legislation Tuesday after hearing the legal opinion, but said the Davis administration would continue to work with the lawmaker, and may attempt to have it reinstated later this year.

Maviglio said the Davis administration contacted local district attorneys and the Justice Department before making the proposal public, and was informed it was within the state’s powers.

George Vinson, Davis’ security advisor, added that changes to federal law are still in flux, and that state lawmakers should eventually be able to pass legislation this year permitting roving wiretaps on suspected terrorists.

With conventional wiretaps, police must obtain a judge’s order authorizing them to listen in on a specific phone number. Roving wiretaps allow them to follow a suspect from number to number.

Vinson said the administration may agree to back an alternative proposal that would would still require police to go to a judge any time they wanted to expand their wiretap authority but would speed up that process.

Legal Questions Only One of Plan’s Problems

Some constitutional authorities joined with the legislative counsel in questioning Davis’ approach. Erwin Chemerinsky, a USC professor of constitutional law, said Davis appeared to have acted without the benefit of careful legal analysis.

The legal questions about Davis’ wiretap proposal are only part of its difficulties. It also has been criticized by civil libertarians and some Democrats in the Assembly and Senate, who are wary of its proposed expansion of police power. As a result, some lawmakers on Tuesday predicted that the proposal is unlikely to become law.

Assemblyman Washington, who was carrying the measure sponsored by Los Angeles County Sheriff Lee Baca and Dist. Atty. Steve Cooley, and whose bill Davis has seen as the best opportunity for expanded wiretap authority--had to pare back his bill just to get it out of the Public Safety Committee, which he chairs.

Washington’s bill, AB 74, initially would have allowed state and local authorities to obtain roving wiretaps through state courts, and also would have allowed them to conduct surveillance on e-mail and Internet communications.

Law enforcement leaders argue that wiretap laws have failed to keep up with technology, and that criminals can now sidestep surveillance by switching mobile phones and using e-mail and Internet chat rooms to communicate. A roving wiretap would allow police to keep up with the times and the criminals, they say.

Authorities must now obtain court orders to tap specific phone numbers, which they say puts them at a disadvantage in an age when criminals can buy cheap prepaid cell phones at convenience stores.

“The world of terrorism in terms of criminal planning and strategizing has clearly shown law enforcement that these people are pretty clever,” Baca said in an interview. “They will use one cell phone, turn it off, come back with another phone, turn that one off . . . conducting their transactions on dozens of mobile phones. Our current system prevents us from following that conversation without going back into court.”

Roving wiretaps and e-mail surveillance have come under fire, however, since Davis proposed them last week. It was because of that criticism that Washington requested the legal opinion from the legislative counsel. Once he received it, he announced that his bill would no longer authorize roving wiretaps.

Several lawmakers also objected to the provisions of Washington’s bill that would extend wiretapping to e-mail and the Internet, arguing that the privacy of countless innocent people would be infringed. Washington then scratched those sections from his measure as well.

Assemblyman Keeley was among those who raised doubts about the idea of police and prosecutors screening e-mail. During a spirited committee hearing, he questioned the prosecutors and police who supported that proposal, and they conceded that they were still developing ways to screen e-mail without unduly intruding on personal privacy.

“These are the types of scattershot investigative tools that result in the widespread loss of personal privacy,” said Francisco Lobaco of the American Civil Liberties Union, which opposed the bill.

Having pared back his legislation Tuesday, Washington’s bill now would only slightly expand local wiretapping powers to target suspected terrorists planning to use anthrax or other “weapons of mass destruction.” Its main purpose is to allow local police and prosecutors to continue to obtain wiretaps beyond next year, when their power to do so under state law is set to expire.

Slight Expansion Is All Most Lawmakers Expect

Such a law, several lawmakers said, is as strong as is likely to pass in the Capitol this year, particularly after the counsel’s office opinion.

Chemerinsky called the legislative counsel’s analysis a “very strong opinion” showing that state and local governments cannot engage in wiretapping except as permitted by federal law.

Chemerinsky and others have questioned the need for expanded state wiretapping powers, noting that local authorities can already partner with the federal government to conduct surveillance on suspected terrorists if needed.

A recent report by the state Department of Justice showed that California law enforcement requested 88 wiretap orders in 2000. Judges granted every request.

The wiretaps cost an average of $56,767 and resulted in the arrests of 271 people. Of those, 17 were convicted. Most were used in drug investigations and involved home phones, cellular phones and pagers.