OAKLAND — A divorce attorney pleaded not guilty Tuesday to charges that she hired a private investigator, who was a central character in Contra Costa County’s “dirty DUI” scandal, to illegally install listening devices inside the car of a client’s ex-husband.
Mary Nolan, 60, appeared in Oakland federal court, where she also pleaded innocent to four counts of tax evasion. She faces up to 15 years in prison and $750,000 in fines if convicted on all counts.
Nolan was first linked to disgraced private investigator Christopher Butler,50, in 2010, after two men told The Chronicle that she used their drunken driving arrests against them in divorce and custody battles. Both men have since filed civil lawsuits against Nolan alleging she orchestrated their arrests through Butler.
Butler pleaded guilty earlier this year to using attractive women to meet estranged husbands in bars and set them up for drunken driving arrests by police officers tied for him.
Butler, who is scheduled to be sentenced Tuesday afternoon, admitted in court papers that Nolan referred clients to him. He also estimated that he bugged between 75 and 100 cars during his tenure as a private investigators.
Nolan was never charged in connection with the drunken driving scandal that snared Butler and others.
But prosecutors alleged in their separate case against Nolan that in at least one instance she hired Butler to bug the car of a client’s spouse so she could use the recorded information against him in divorce proceedings.
Nolan’s court appearance drew the attention of Phil Dominic, 55, of Oakland, who said Nolan represented his ex-girlfriend in a 2010 custody dispute over their son. His case is not the one forming the basis of the criminal case against Nolan.
Dominic said Nolan lied about him to family court judges and destroyed his relationship with the mother of his son, as well as his child.
“This is Christmas for me,” said Dominic, who heckled Nolan as she left the courthouse.
Dominic said he was organizing a group of men whose wives were represented by Nolan to discuss taking legal action against the attorney.
“I told her one day she’d get caught,” Dominic said. “I told her, ‘One day I’m going to see you on the other side.”
Outside court, Nolan’s attorney Jay Weill declined to comment.
Nolan is scheduled to appear in court next month for further proceedings.
OTTAWA – Canada’s top judges pushed the Crown on Monday to explain why giving police the ability to eavesdrop on text messages with a general warrant wouldn’t be handing them too much power.
Supreme Court Chief Justice Beverley McLachlin asked Crown attorney Croft Michaelson how long a surveillance leash police should be allowed in asking service providers like Telus to release a customer’s future text messages to them.
McLachlin said it’s “intuitive” that allowing law enforcement to gain access to future communications is a greater infringement on privacy than giving them access to the records of past texts.
“It’s a concern for me certainly,” she said, later adding: “It does feel different to give police future powers and then to say: ‘You can go and look at what’s (already) there.'”
The panel of seven judges decided to hear arguments on the powers police have to snoop on text messages after an Ontario judge granted a general warrant that called for Telus to give law enforcement the texts of two of its customers over a future two-week period.
Telus argues that if police want to acquire the content of text messages in near real time, they should get an authorization to intercept, as they do when they want to intercept phone conversations — a wiretap.
Telus’ lawyer, Scott Hutchison, said the company has been receiving more such warrants from police since 2010.
“This is a wiretap dressed up as a general warrant,” he argued, adding the criminal code governing interceptions — written in 1974 — hasn’t kept up with the way people communicate today.
The Crown argues a general warrant should be enough because police are essentially gathering a record of communications made over a 24-hour period and not intercepting them in real time.
In April, the Supreme Court struck down a law that allows for emergency wiretaps without a warrant.
The judges’ main concern was that people whose communications are intercepted under the provision can be kept in the dark about the wiretap.
McLachlin and others raised similar concerns Monday. If police gain access to texts under a general warrant, those intercepted will never learn their communications had been tapped — which wouldn’t be the case under wiretap laws.
Cyber terrorism and espionage have been highlighted as growing threats to Australian organisations and government departments, according to a new annual report by the Australian Security Intelligence Organisation (ASIO).
The Annual Report 2011-12, which was tabled in the federal parliament this week, found that ASIO completed more than 150,000 counter terrorism security assessments during the reporting period.
“Emerging technology and an Internet-connected world offer new avenues of espionage,” read the report.
“The espionage threat is evidence by foreign intelligence services seeking agents in relevant positions, including in the Australian public service and working for Australian businesses, but also seeking access to any computer system or network holding data that could be targeted for espionage activity.”
According to the report, cyber espionage state and non-state actors continued to target Australian organisations.
ASIO pointed out that critical infrastructure, such as SCADA networks, is one area organisations need to focus on protecting in Australia.
“Critical infrastructure by its very nature poses a potential target for those who wish to do harm to Australia and so careful consideration must be given to matters having an impact on the security of critical infrastructure,” read the report.
“No single element of critical infrastructure stands alone and the potential for threats against auxiliary assets must also be considered.”
Over the 2011-12 period, ASIO provided 25 briefing sessions on potential or specific threats to critical infrastructure and produced 22 reports. These were sent to more than 153 government and private sector organisations.
Cyber terrorism
Turning to terrorism, ASIO reported that international influences through the Internet will continue to inspire some Australians to potentially join terrorism groups such as al-Qa’ida.
“Over the 12 months, al-Qa’ida and its affiliates have suffered a number of setbacks including the loss of senior figures such as Anwar al-Aulaqi, in Yemen,” read the report.
“The continuing counter-terrorism efforts of Australia’s partners in South-East Asia are also having an effect on regional extremist networks, although terrorist threats persist.”
However, ASIO conceded that these setbacks have not lessened the extent of what the report referred to as “violent jihadist” groups to promote, foster and engage in terrorism.
“The global tempo of terrorist activities, including attacks, attempted attacks, plotting, fundraising and recruitment, remains undiminished.”
CREST
The report went on to highlight ASIO’s connection with the Australian arm of the Council of Registered Ethical Security Testers (CREST) which was established in March 2012.
“CREST Australia is the product of co-ordinated engagement with industry involving ASIO, CERT Australia and the Defence Signals Directorate [DSD] and will have an important role in establishing clear and agreed standards for cyber-security testing.”
According to the report, the CREST standards will help the business sector be confident that the work conducted by CREST-accredited IT security professionals is completed with integrity, accountability and to agreed international standards. In addition, CREST Australia is affiliated with CREST Great Britain.
Federal agents picked through garbage, spied on phone calls and captured reams of email as they went after a Houston businessman now accused of leading a scheme to ship sensitive U.S. technology to Russia’s military.
The 11-person ring, allegedly led by Alexander Fishenko, is not accused of espionage, as classified documents were not given to Russia, but of breaking U.S. law by sending loads of protected microelectronics that can be used for guiding anti-ship missiles or radars as well as have civilian-world uses.
One of the most damning yet simplest bits of evidence made public so far came from the mouths of one of the company’s managers while being interviewed over the phone by an employee working on a college paper and seeking to understand how Fishenko’s company, ARC Electronics, got around strict export laws and avoided suspicion.
The answer: “We’re lying.”
In another conversation, the manager, Alexander Posobilov, is asked by an employee in Russia, who is among three fugitives in the case, what would happen if word gets out about what is going on: “We will be f—–.”
Those words were among thousands recorded by the FBI. The conversations leave little doubt at least some of the persons charged likely knew they were doing something dubious.
Three people charged, including Fishenko, appealed Wednesday to U.S. Magistrate Judge George C. Hanks Jr. to free them on bond pending trial. All appeared in court wearing green prisoner uniforms and shackled at the waists and ankles as about two dozen family members and friends looked on.
The hearing is to continue Thursday.
The eight defendants who have been arrested are Slavic country immigrants, several from Russia, who now live in Houston. Most if not all have no known criminal records. Several are U.S. citizens with extended family here, although they have been issued passports by both countries.
No aid from consulate
The Russian consulate in Houston submitted a letter that stated should any of the defendants be released, it would not help them escape, an apparent attempt to belay concerns it could issue them travel documents or take diplomatic actions to assist them.
Prosecutor Daniel Silver argued none should be released pending an outcome of charges in the case, as they would most certainly flee the United States to countries abroad where they have relatives and the ability to rebuild their lives aboard.
In testimony Wednesday, FBI agent Crosby Houpt said that ARC disguised itself as a traffic-light manufacturer, then lied about what the microelectronics were to be used for in order to avoid drawing any suspicion from suppliers.
The equipment would be shipped from Houston through an airport in New York and then ultimately on to Russia.
“ARC would receive shopping lists from Russian entities, and they would go about acquiring the parts on the shopping lists,” Houpt testified.
He also said Fishenko and other company managers took steps to try and hide what was going on from some of their employees, especially any word that parts would be sent to the military.
Among the evidence are documents in Russian that the FBI seized that show that a company tied to Fishenko was authorized to procure parts for the military, and another in which an intelligence arm of the government complains that it had been sent defective parts.
Defense attorneys have sought to portray most of the accused as Houstonians with productive lives here who immigrated to the U.S. years ago.
Fishenko’s attorney, Eric Reed, said his client is a family man who moved to Houston in 1994 with his wife, who is Jewish and came as what she described as a refugee fleeing discrimination based on her religion.
He noted how important Fishenko was in the life of his young son, whom he dropped off at elementary school before being arrested last week.
Grandmother charged
Another person charged, Lyudmila Bagdikian, is a grandmother who had survived cancer, had no criminal record anywhere, and had only worked for Fishenko’s Houston company, ARC Electronics, for a short time before it was raided last week, said her attorney Kent Schaffer
Yet another, Sevinj Taghiyeva, came to Houston on a student visa to study at the University of Houston and went on to get a work visa through ARC.
Charles Flood, an attorney for ARC saleswoman Viktoria Klebanova, said his client didn’t know what the higher-ups were doing.
He portrayed the charges as a nonviolent export violation and mocked the idea she was any kind of James Bond as he questioned the FBI agent.
“She doesn’t have machine guns behind the headlights of her 2003 Savannah (car), does she?” Flood asked the agent. “She doesn’t have a secret phone in her shoes, does she?”
Have you heard? A federal court’s decision may provide the impetus to overhaul Illinois’ ridiculously restrictive eavesdropping law.
Last week, the 7th U.S. Circuit Court of Appeals issued a ruling in a lawsuit filed by the American Civil Liberties Union in 2010. The suit sought to block Cook County State’s Attorney Anita Alvarez from prosecuting ACLU staff members for recording police officers performing their duties in public places. Such recording has been one of the ACLU’s long-standing monitoring missions.
Illinois’ eavesdropping law, which was enacted in 1961, makes it a felony for someone to produce an audio recording of a conversation unless all parties involved agree to it. The law sets a maximum punishment of 15 years in prison if a law enforcement officer is recorded. The law applies to audio recordings only.
In its opinion, the appeals court wrote, “The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests. As applied to the facts alleged here, it likely violates the First Amendment’s free speech and free-press guarantees.”
We heard that.
The biggest problem with the state’s law as it stands is that it was written in an era when technology was far less developed than it is today. In 1961, the law was meant to prevent illicit recording of conversations through the use of hidden microphones and wire-tapping devices.
But fast-forward to 2012, and it’s a whole new ballgame. Much of the citizenry is equipped with phones capable of recording video and audio. It has becoming increasingly common for everyday citizens to pull out their phones when they see something newsworthy and to record the events, often capturing conversations and other sounds.
Especially as this trend applies to law enforcement officers, these recordings sometimes have captured police doing illegal or objectionable things, such as beating, Tasing or pepper-spraying people. Just as the framers of the Constitution provided for a free press to expose such abuses, so-called “I” reporters often have provided critical evidence of wrongdoing on the part of those charged with fighting crimes, not committing them.
Police often say that if citizens are not doing anything wrong, they shouldn’t object to searches and other law enforcement techniques. We believe the same is true in reverse: If law enforcement officers are not doing anything wrong, they shouldn’t object to audio recordings of their actions and words.
We believe there are enough laws on the books already that protect police officers in the case of citizens overstepping their boundaries and interfering with cops trying to do their lawful duty. And any rewrite of Illinois’ eavesdropping law should make that distinction clear and include it in the statute.
But we also believe it’s time for the General Assembly to overhaul this outdated and overly restrictive law to reflect new technologies, as well as the longstanding constitutional rights of citizens and the press. And we hope lawmakers get that message loud and clear.
