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Are Police Eavesdropping?

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D1 THE ANN ARBOR NEWS • TUESDAY, SEPTEMBER 10, 1985 ARE PoLICE STORY By SHARON RUBINSTEIN ILLUSTRATION By MARLA CAMP NEWS SPECIAL WRITER, CHIEF ARTIST Would it bother you to know that it is possible for people more than 300 feet away to hear your conversations as if they were at your shoulder? It bothers Glen Roberts. He is bothered because--am- Ann Arbor Police Department bought a listening device called the "Bionic Ear" which, when aimed, is capable of amplifying distant sound to audible levels. He fears that the device may be used to invade privacy, in violation of the Constitution and various state and federal laws. Roberts, a 23-year-old freelance computer programmer, is a selfstyled watchdog of civil liberties. He has devoted increasing amounts of time over the past three years to monitoring and challenging government actions. Besides initiating legal controversies, he is the president of Capitol Information Association (CIA), a nonprofit Michigan corporation which prints a quarterly newsletter, Full Disclosure, designed to inform readers of possible encroachments upon their rights. Roberts so believes in his mission that he adds personal funds to subscription revenues to ensure publication of the newsletter. He says it has a national circulation of about 10,000 copies. Roberts says he is concerned that if government and police activities are kept totally secret, our society could become a police state. "Not that it's at that point now," he emphasizes, "but it could progress to that." He fears the Bionic Ear, which he discovered on a recent crusade to examine police purchase records, could be used to invade the privacy of innocent people. "Obviously this is a powerful tool with a potential for misuse," he said. "There might be some rare occurrences where its use could be legitimate, but that should be compared to the possible abuses." Full Disclosure's last two issues have carried stories about how Roberts learned of the Ear. Roberts also has publicized the acquisition by plastering posters around town headed "The Ann Arbor Police: Privacy Invaders?" When contacted about this article, Lt. Gerald Miller of the Ann Arbor Police Department's Special Investigation Unit said the mere publication of a story about the Bionic Ear would probably hav.e a fY;M~~ "smear effect" on the police department - "just like that poster." But others are beginning to take Roberts seriously. Several Ann Arbor City Council members expressed concern that police would buy a controversial listening device without first seeking an opinion as to its legality. A few council members are even suggesting that the city should have a policy requiring police to obtain City Council approval before buying any new surveillance equipment. Police officials, meanwhile, insist that Roberts is making a constitutional mountain out of a mole hill. "This is not something that John Q. Public has to be concerned about," said Ann Arbor Police Chief William J. Corbett. "If the law says thou shalt not eavesdrop, we won't," the chief added. Deputy Chief Don Johnson said Roberts appears to have an exaggerated fear of the police. "He thinks we have some kind of gigantic surveillance of 108,000 people The ~Bionic Ear' may not be much of a threat, but to some it suggests the need for more oversight of the Ann Arbor Pol ice Department. going on," Johnson said .. "We don't have that much manpower.'' Roberts is happy that his effort!! are bringing the issue to light. ''I' not particularly concerned about the police using the Bionic Ear on me," Roberts says. "If they read my paper, they can see what I'm about. But I am concerned that there seems to be a shift to greater secrecy. Openness in government allows people to better participate in the democratic process." Until he unearthed the purchase of the Bionic Ear, it appears Ann Arbor police had kept acquisition of the device to themselves. In fact, the problems Roberts encountered in uncovering the purchase of the Bionic Ear seem to have fueled his suspicions of the police department. As Roberts tells it, he decided to investigate the Ann Arbor Police Department's purchase orders this spring to see if anything interesting might turn up. First, he said, he filed a Freedom of Information (FOI) Act request asking for an inventory of surveillance devices used by the Ann Arbor police. That request was denied by police and city officials. Corbett says the request was denied because it was in blanket form. "Roberts wanted to view all our purchase orders. We don't have time to set people aside for a fishing expedition. "If he thinks we're in possession of specific things, like equipment to bug phones, why doesn't he file that specific request? "If Roberts had come in and asked if I had the Bionic Ear, I'd have said: 'Yeah.' I'm not gonna lie. I value my job highly." Roberts' second attempt was more successful. Armed with Chapter 18 of the City Code', which states that all Ann Arbor public records may be examined by any citizen in the appropriate office at reasonable times, Roberts went to City Hall. He says he was told by Assistant City Attorney Mel Laracey that he could look at the records, but he would have to wait until the records had been examined by the City Attorney's office. He was also told he could not take notes or make copies. Commenting on Roberts' treatment, City Attorney R. Bruce Laidlaw said: "Initially, the police weren't too fired up about having someone go willy-nilly through their files, but after consultation with this office, they told him it was OK." The 1984-1985 records yielded nothing to particularly pique Roberts' interest. But records of the previous year, 1983-1984, contained the Bionic Ear order. Ironically, a city official assigned to keep an eye on Roberts' search of the records seems to have been at least partly responsible for tipping Roberts to the existence of the listening device. James Amin, director of the city's purchasing department, had been asked by the City Attorney's office to review the slips in advance and to stay with Roberts while the files were examined. While they were perusing the records, Amin asked Roberts if he had yet run across the Bionic Ear slip, and wondered aloud if perhaps he should have deleted it. The Bionic Ear is the trade name for a device similar to larger parabolic microphones, which are sometimes used by television crews to pick up sound at sporting events such as football games. The Bionic Ear is flashlight sized, and weighs only a pound and a half, with attached headphones. It can be used with a tape recorder. The Bionic Booster, which is shaped like a disc a little smaller but thicker than a record album, makes the Bionic Ear more powerful and directional. It also helps diminish background noise. Kevin Edgar, a spokesman for the Ear's manufacturer, says the device is capable of intercepting sound at a maximum land distance of about 300 yards, if there are no obstructions between the sound and the Bionic Ear user. In the brochure enclosed with the Ear, eight possible uses are listed. They are: hunting; boating; bird watching; home security; search and rescue; law enforcement; warehouse security; and use by the hearing impaired. The Ann Arbor Police Depart- See EAVESDROP, 02 EAVESDROP CONTINUED FROM 01 ment bought both the Bionic Ear and the Bionic Booster in the fall of 1983, for a total cost of $84. Chief Corbett said the device was bought "because it's a new piece of technology on the market, with a possible police application . . .. It's well worth the investment, and not real expensive. Just real delicate." Legal experts say there are murky questions surrounding the use of such devices. In the first place, private citizens are forbidden by Michigan law from using devices to eavesdrop. Police agencies may use certain kinds of devices under limited circumstances. When the police application is not for eavesdropping, but for something like search and rescue, there is little controversy. When used as a surveillance device, however, the Ear is part of a cornucopia of equipment that courts have allowed police to use only under outside supervision or in emergencies when there is no time to seek a warrant. The basic Fourth Amendment rule is that the police cannot conduct "unreasonable" searches and seizures. James R. Neuhard, director of the State Appellate Defender's Office in Detroit, said when eavesdropping invades a person's "reasonable expectation of privacy," it cannot be done without a warrant. Once upon a time, the key questioq was whether a physical invasion of a person's space was made. That is no longer crucial, according to Neuhard, but it is more reasonable to expect privacy in some locales than others. Thus, use of the Bionic Ear might be legitimate on a public street, but not in a more private spot, such as a home. Roberts goes further, maintaining that use of the device to intercept private communications is illegal in Michigan unless a federal law enforcement agency is the user. Roberts has no formal legal education, but says he knows - "more or less" - how to do legal research. Roberts has been guided NEWS PHOTO • COWEN FITZGERAlD The 'Bionic Ear' through the U-M Law Library by his attorney, David Raaflaub, and has tried to educate himself with material put out by HALT, an group trying to eliminate lawyers. Ann Arbor is not alone in its purchase of the Ear. The Michigan State Police have two, which Detective Sgt. Thomas Westgate of the Technical Services Unit in Lansing says were bought primarily "to check them out." According to Westgate, the devices have only been tested, and never used, by the State Police. He says no lawyers were consulted prior to the purchase. Chief Corbett says the Ear was bought primarily for hostage situations, where the ability to hear the conversations of barricaded gunmen could be valuable. It wasn't until a little less than two weeks ago, however (following several interviews for this story), that the Ear was used at all. It's debut was something less than conclusive. On Friday, Aug. 30, police surrounded a home in Ann Arbor after receiving a tip that an armed man had kidnapped his estranged wife and was holding her there. A News photographer saw one police officer attempting to use the Ear. Deputy Chief Johnson said he wasn't at the scene and didn't think anyone in the department would comment on the Ear's use during the police siege of what turned out to be an empty house. "We don't intend to give out investigative techniques," he said. Yale Kamisar, a law professor at the University of Michigan and a noted expert on criminal law and procedure, thinks the hostage scenario is probably a pretext. He said the hostage scenario "stretches credulity. We're entitled to know how they're going to use it." One problem with using the Bionic Ear to intercept the conversations of barricaded gunmen is that it may not work. The Bionic Ear cannot pick up sound behind solid walls or closed windows, according to Kevin Edgar, the manufacturer's representative. According to Corbett, another possible legitimate use of the device is for monitoring undercover officers who may be in life-threatening situations. The Michigan Attorney General's Office has issued a written opinion stating that an undercover officer whose safety is endangered can transmit his conversation with a suspect to backup officers even without a warrant. At the same time, however, Corbett admitted the device is not particularly effective in crowded situations, because background noise makes what is heard confusing. Despite its unimpressive abilities, the Bionic Ear has raised questions among those who feel the police should have consulted with city or county lawyers before purchasing the device. When Washtenaw County Prosecutor William F. Delhey was called about the issue, he said he had never heard of the Bionic Ear. City Attorney Laidlaw said he was similarly unaware of the purchase. Corbett explains that purchasing policy is set by department heads, not lawyers. But some City Council members are uncomfortable with the notion that police do not routinely consult with city or county lawyers before buying surveillance devices. Kathy Edgren, Fifth Ward Democrat, said: "Obviously, how something like this is used is what's important. It could be used to violate privacy .... "I would be very interested in getting an opinion from our city attorney on the use of these devices, and whether strict guidelines are necessary to make sure they aren't being used to violate rights. "I'd also like to get a list from the police department of all the items used for surveillance. We're going to have a meeting with the police at the end of the month, and City Council will ha~e a whole lot of questions about how they operate. The Police Department is a large part of the city's budget." Jeannette Middleton, Third Ward Republican, added, "I never even knew a Bionic Ear existed. I uppose it was within their rights to purchase an inexpensive item like that. If it were monitored and the times when it was used were made public, I don't have any problem with it. "I would assume the real point is invasion of privacy. I would think before a purchase of that sort, it should be run by the city attorney and city administrator. As far as telling City Council goes, that would be opening another can of worms." they've checked with other agencies that use that device. "I don't think every time they buy a device of that sort they should come to City Council. I have enough confidence in Chief Corbett and his people to think they'd probably do a little bit of checking ahead of time." Larry Hunter, First Ward Democrat, disagreed. "I think they should bring questions like this to us," he said. "We have had several discussions about political surveillance in the past. Some council members are very sensitive about those kinds of things. I'm one of them. "When you get a device like that, it behooves you to have very clearcut policies on how it should be used. The ramifications of any potential misuse are just too great. "But I would say generally the police have been cooperative with City Council. I'm not accusing them of misuse in this case. We'll be having a meeting at the end of this month, and I would like to find out their intentions. I want to find out what the guidelines are. I want assurances that the rights of all citizens are protected. I think written guidelines would be appropriate." Hunter said he was "rather surprised" that no consultation took place "knowing how sensitive people in this town are to potential civil liberties questions." Hunter also said he was surprised that Roberts hadn't made his discovery known to members of council. Larry Hahn, Fourth Ward Re-. publican, echoed Jernigan's sent); ments. "I guess I'm not concerned that they don't have to come before the council for that amount of money. They're professionals. Thequestion is probably not so mt.i£1:1 that they purchased it, but Mw they use it .... I feel fairly comfortable with the professional ethics of this police department. I think the chief and his officers are very responsible in how they conduct business." Deputy Chief Johnson is not inipressed with arguments for having City Council or other governmental bodies monitoring purchases ·Of items like the Ear. • "I guess the bottom line question . is whether we should have an over.~ sight committee. I don't think it's really necessary, and it would ~ awfully cumbersome. Would we need to get council together, say, before we used a device like this? That's too impractical. ... "This doesn't need to concern the public or politicians. Things like this are used on a daily basis· around the state." What about the kind of "over-· sight" that Roberts is doing? ... · "It will give the public a lot of in ... . formation, but it will also give ttie criminals a lot of information we"6 · just as soon they didn't have.