The Alaska Department of Law is failing to disclose when it taps the phone of an Alaskans, the Empire has learned through a public records request.
In fact, the 25 years since the Alaska Legislature began allowing the state to conduct wiretaps, the Department of Law has never filed an annual wiretap report, as required by state statute. When the Empire requested copies of the latest report, which should have been filed this month, the newspaper was told it did not exist.
“Until recently, we did not have anything to report, so didn’t need to produce a report,” said Cori Mills, a spokeswoman for the Department of Law, by email. “We are a bit behind in the last couple of years where we may have a few to report, but with budget cuts and tightening of resources, especially in our Criminal Division, it just hasn’t happened.”
The state’s failure to produce a report means Alaskans have no idea how frequently the state taps Alaskans’ phones. The Empire contacted a half-dozen criminal defense attorneys across the state in an attempt to obtain an answer. None said they had heard of any state cases involving wiretaps. Head public defender Quinlan Steiner declined to comment on the record, citing unfamiliarity with the issue.
The Empire also examined disclosures made by the federal government. According to those records, only one wiretap took place in 2015 and one in 2016 in cases assigned to federal courts. Both involved narcotics cases, and each resulted in one arrest.
Based on those records and the experience of state attorneys, wiretaps for state criminal cases appear extraordinarily rare. It might also be possible that the state has never conducted a wiretap under the law.
“I wouldn’t be surprised (if that were the case). Alaska tends to have broader civil rights than the feds do, and look at all the hoops the feds have to jump through and all the manpower they have to devote to a wire,” said Elizabeth Fleming, a public defender in Kodiak.
If the state has conducted a reportable wiretap, lawmakers said the failure to complete a legally required report is worth noting.
“I’d say anytime there’s a statute on the books that’s not being followed, it’s worth paying attention to,” said Sen. John Coghill, R-North Pole. Coghill is chairman of the Senate Judiciary Committee, which oversees the Department of Law.
Rep. Matt Claman, D-Anchorage and the House Judiciary Committee chairman, said he believes this is isn’t the only statutorily required report that isn’t being filed.
“At that some level, although disappointing, it isn’t surprising,” Claman said.
The Empire has embarked on a long-term project to check the status of the several hundred reports listed in statute.
Claman added that if a report “doesn’t get on anybody’s radar to track it,” it’s easy to lose count.
The omission of this particular report is significant because Alaska is one of only 10 states with explicit privacy protections in its constitution, and the Alaska Supreme Court has tended to interpret that protection broadly. The omission also comes amid the revelation that coversations between Anchorage prisoners and their attorneys were unknowingly recorded by the state.
Gov. Bill Walker has also proposed a new Class A felony for drug trafficking. Under existing law, violators of that new felony could also be wiretapped.
“Sadly, it isn’t surprising that the state would fail to comply with its reporting and disclosure requirements on wiretaps,” said Casey Reynolds, communications director of the American Civil Liberties Union of Alaska. “From shutting down police scanners to failing disclose technologies being used to surveil citizens, to declining to comply with FOIA requests, law enforcement agencies across Alaska have become less and less interested in transparency and our state and local elected officials are increasingly wary of holding law enforcement officials accountable for their secrecy.”
Defense attorneys contacted by the Empire said it’s critical to understand what is and is not considered a wiretap. If two people are talking and one records another, that isn’t a wiretap.
”That’s called a one-party consent. Alaska is a one-party consent state. A lot of states are not. A lot of states require both parties to consent to the recording,” Fleming said.
If, however, police convince someone to record a conversation on behalf of the police, that’s something different. In 1978, the Alaska Supreme Court ruled that Alaska’s unique constitutional protections on privacy require police to obtain a warrant before they have someone record a conversation on their behalf. The Empire is unaware of any other state that requires such a warrant, which is known (after that 1978 case) as a Glass warrant.
A true wiretap only happens when people on both ends of the phone line don’t know they’re being recorded by the government.
State law limits the ability of police to use true wiretaps. According to the law, they may only be used for cases involving murder, serious felony drug trafficking, human trafficking, sex trafficking or kidnapping, and they require a warrant, plus strict oversight.
The law goes on to state that each year, “the attorney general or the attorney general’s designee shall prepare and make available to the public annual reports” covering the wiretap law. That annual report is supposed to show how many wiretaps were made in the previous year, for which criminal case they were requested, and how many arrests resulted, among other information. The disclosure is almost identical to that provided by federal law.
The disclosure requirement is the result of an amendment introduced by Sean Parnell, who was then a state legislator from Anchorage. Parnell, reached through his legal office in Palmer, said by email that he doesn’t recall it and wasn’t prepared to discuss it.
From her Kodiak office, defense attorney Fleming said it’s entirely plausible that Mills’ email to the Empire is accurate and the state legal system, after years of cuts, does not have the funding to fulfill its obligations under the law.
“It’s probably true, but what else is going to slip through?” she said.
• Contact reporter James Brooks at james.k.brooks@juneauempire.com or call 523-2258.
