Your WiFi Repair Guy May Be The FBI

Your WiFi Repair Guy May Be The FBI By Matt Kaiser

If someone is interested in a career in the creative arts these days, I think being a federal law enforcement agent may be worth considering. You get to lie, you get to play dress up, and you get to think of so many creative ways to get into other people’s houses without a warrant.
Of course, everyone knows that federal law enforcement can work undercover. They get to set up whole personas that are false to try to do their work.
And FBI agents can get other people to wear a wire — especially if they’re threatened with the prospect of decades in prison, regardless of whether any judge would ever impose a sentence of that length for the conduct the agents allege.
During an interrogation, federal agents can lie to people with little consequence. Federal agents can go through your garbage without implicating the Fourth Amendment — after all, you’re the sucker who threw away your trash. If you didn’t want other people rooting through your garbage, you should have just left it all in your house to fester.
And, federal court in Nevada, in a case being litigated in part by Supreme Court Super Lawyer Tom Goldstein, federal agents can cut your internet, then dress up as an internet fix-it guy, and go into your house to search and see what they can find.
How does this work?

The federal government was investigating Paul Phua — a Macau gambler who was in Las Vegas for the reason most people go to Las Vegas (no, not Celine Dion, the other reason).
Caesar’s Palace was grateful for Phua’s presence; they put him up. He was staying at a villa owned by the casino. It had its own butler. It was, apparently, pretty nice.
The feds thought that Phua was involved in some illegal gambling activity. They wanted to get into that villa to look around to try to find something to back that up, like evidence, so they could get a search warrant.
As an aside — why is the government so intent on going after Phua if it doesn’t have enough evidence for a search warrant? I mean, the standard is probable cause. It’s not exactly a high bar. The government has something less than probable cause and it’s going to keep drilling down on this guy? Why, exactly?
But I digress. Agents, aroused with suspicion that someone is gambling in Las Vegas, dressed up as something like Best Buy delivery guys and showed up at the villa. They said they wanted to give Phua some computers. And, of course, they wanted to make sure the computers connected to the internet at the house, so they’d need to come in and test the WiFi on the computers in every room. Or something like that.
The butler said no.
So the agents set fire to the house, then posed as firefighters to go in and pretend to put the fire out.
Oh, no, I’m sorry, I moved straight to the next law enforcement idea that would be licensed if what the FBI did here is deemed constitutional.
Instead, the agents cut the WiFi to the house then posed as repairmen to fix it. While “fixing” the WiFi that they broke, they took hidden video of the place. They apparently found enough to go get a warrant.
When Phua was charged, his lawyer, not surprisingly, filed a motion to suppress everything that came after the “break your WiFi” trick. It appears the attack on this practice is in two stages — first, agents aren’t actually constitutionally allowed to break your WiFi so they can pose as repair people to go fix it, and, second, they sure aren’t allowed to cover it up when they file a search warrant application with a magistrate.
The U.S. Attorney’s Office has responded to answer the motion.
AUSA Kimberly Frayn wrote that “the record makes clear that law enforcement had ample reason to suspect defendants of illegal bookmaking before raising any ruse in this matter.”
“Ample reason” is, apparently, something less than probable cause though, because otherwise the government could just get a warrant.
It’s good to know that the government will only cut services to your house so they can create a fake reason to get in and search for evidence against you when there’s “ample reason” though. Because “ample reason” is a well-defined constitutional doctrine.
See, agents aren’t the only people in the federal law enforcement community who get to make things up.

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Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.