STING OPERATIONS
B.Raman
The advent of miniaturised audio and video technology,
specially the pin-hole camera technology, enables one to clandestinely
make a video/audio recording of a conversation and actions of
individuals. Such equipment, costing between US $ 500 and 5,000 plus
depending on quality, generally has four components-- the miniaturised
camera, often of a size of a 25 naye paise coin or even smaller (pin top
size), a miniature video recording device, a cord to transmit the signals
and a battery cell. The use of the cord can be avoided through
wireless transmissions.
There are various ways of hiding the camera---inside a
briefcase, or a pager or a cigarette lighter or a cellular telephone or a
fountain pen or a smoke detector or in the nose frame of sunglasses or
other spectacles etc.
Where a briefcase is used, the recording equipment, the
transmitting cord and the battery can also be concealed in it. In
other cases, the remaining components are generally attached to the body
of the user. In the sunglass/spectacles version, the connecting cord
looks like the safety cord which some people use with their glasses. In
other cases, an observant person can notice the telltale connecting
cord. Most of these gadgets have either a self-activation mechanism
or a mechanism which has to be activated manually. The briefcase
camera gets activated when the briefcase is kept in a particular position.
The visuals of Shri Bangaru Laxman recorded by
Tehelka.com indicate that the camera was probably at a level higher than
the waist of the journalist. The use of a briefcase, which would
normally have been kept on the floor, seems unlikely. It was
probably concealed in some other object of day-to-day use which he kept on
the table without the connecting cord attracting the suspicion of Shri
Laxman or, most probably, in the sunglasses/spectacles worn by the
journalist in which case the cord would not have attracted suspicion.
In Western democracies, there are no curbs on the sale
or purchase of hidden recording equipment and using them in one's own
house or office, but, in many countries, it is illegal to use them
clandestinely against another person in his or her house or office.
Watergate is a famous example of a President leaving office in disgrace
and his lieutenants being jailed for trying to have a recording equipment
clandestinely fixed inside the office of a political adversary.
The only exceptions to this in the US are the law
enforcement agencies and police-licensed private detectives, who are
allowed to use them under certain circumstances under carefully-controlled
conditions. Licensed private detectives can use them for the
collection of evidence, but not in a sting operation. Only the FBI
can mount a sting operation. No private individual, not even a
journalist, can.
Reputed companies manufacturing and selling clandestine,
miniature cameras generally carry the following warning in their
advertisements: "Individuals, any and all entities must and shall
comply with all applicable local, state, federal laws and regulations
before performing or engaging in any recording, covert surveillance or any
transmission of radio frequencies. Some products require licensing
prior to using these items. We will mark these items and will
require your understanding prior to purchase. We shall NOT be held
responsible for users' criminal or civil misuse. Be informed of the
law, and it's your responsibility. A lot of these products have
covert purposes. You need to be careful and aware of how you can use
these items. It is your responsibility to know how and when you can
use the items you want. Visit or contact your local government
entity for laws and regulations on uses. It's your responsibility to be
aware before you buy. Refunds will not be given due to lack of
knowledge of local, state, and federal laws, or licensing
requirements. Be aware of your local laws prior to using ANY covert
devices."
If Tehelka.com had done in the US what it had done
in India, its owners and their journalists would, most probably, have been
liable for arrest and prosecution and for damage suits from those
interviewed for damaging their reputation through covert means, but in
India there are no laws regulating the use of covert
investigative/surveillance equipment by private individuals.
Despite the legal safeguards in the US, there have been
growing complaints of the misuse of such covert equipment not only by
private individuals, but also by the law enforcement agencies, resulting
in a violation or distortion of the rules of natural justice and
particularly of the basic constitutional or legal guarantee that no person
can be made to incriminate himself by using force or deceitful means.
The Washington-based Privacy International, a
non-governmental organisation, has since 1990 been drawing attention to
the dangers of an uncontrolled use of clandestine video and audio
equipment and closed circuit TV. It says: "In a very short
time, the systems have challenged some fundamental tenets of justice, and
created the threat of a surveillance society. Other more traditional
approaches to law enforcement and social justice are being undermined
without due process. Privacy International believes the government should
immediately appoint a watchdog to investigate the industry and to
recommend appropriate legislation."
The FBI conducts every year about 175 sting operations
to investigate complaints of bribery, extortions, narcotics smuggling,
sale of cigarettes to minors, child sex etc. In two famous sting
operations of 1992, involving the use of hidden cameras, it arrested 18
public servants of Chicago and a member of Mr.Bill Clinton's election
campaign team in Indiana on charges of bribery.
Strict ground rules for such sting operations have been
laid down over the years by departmental instructions and rulings of the
judiciary. Amongst such ground rules are:
* Sting operations could be mounted only against persons
against whom some evidence of criminality already exists and a sting
operation is considered necessary for getting conclusive evidence.
* Permission for sting operations must be obtained
from appropriate courts or the Attorney-General. This safeguard
has been laid down since those who mount a sting operation themselves
commit the offences of impersonation, criminal trespass under false
pretences and making a person commit an offence.
* There must be a concurrent record in writing of the
various stages of the sting operation.
* While the transcript of the recordings can be
edited, the films and the tapes themselves should not be edited.
Where there is evidence of editing, there is an automatic presumption
that the recording is probably not authentic.
In the JACOBSON vs. U.S. case of 1992 relating to child
sex, the US Supreme Court cited the following guidelines of the US
Attorney General on FBI sting operations issued on Dec 31, 1980:
"...an inducement to commit a crime should not be offered unless:
There is a reasonable indication, based on information developed through
informants or other means, that the subject is engaging, has engaged, or
is likely to engage in illegal activity of a similar type, or the
opportunity for illegal activity has been structured so that there is
reason for believing that the persons drawn to the opportunity, or brought
to it, are predisposed to engage in the contemplated illegal activity.
"
In many judgements, the US Supreme Court has condemned
some FBI sting operations for taking advantage of the naivety,
carelessness and negligence of the possibly innocent in order to make them
appear as possibly guilty.
The Supreme Court has ruled: " The first duties of
the officers of the law are to prevent, not to punish crime. It is
not their duty to incite to and create crime for the sole purpose of
prosecuting and punishing it. Such a gross abuse of authority given
for the purpose of detecting and punishing crime, and not for the making
of criminals, deserves the severest condemnation... While there are those
who do harbor an actual criminal predisposition, the reality is that the
majority do not fit this description. These sting operations are
constructed so as to take advantage of the fact that everyone makes
mistakes. They refuse to discriminate between the "unwary
innocent" who are legitimate victims of human nature, predisposed to
eventually making a mistake and nothing more, and the "unwary
guilty" who are looking for the opportunity to commit the crime, or
the "unwary negligent" who just don't care enough one way or the
other."
There have been complaints from US human rights
organisations that a number of F.B.I. sting operations have caused serious
harm to innocent citizens who were the accidental victims of the
make-believe criminal organizations set up by the bureau. They have
pointed out that an even bigger risk, associated with sting operations
aimed at public corruption, is the destruction of the public's confidence
in government institutions. This concern was the central focus of a
1984 report by the House Judiciary Subcommittee on Civil and
Constitutional Rights after a four-year investigation of stings.
"While investigations of public corruption may be intended to restore
the public's faith in the integrity of the affected institutions,"
the subcommittee's report said, "ill-conceived and poorly managed
undercover operations are likely to have precisely the opposite
effect."
Against this background, certain disturbing questions
arise with regard to the tapes of Tehelka.com:
* Was there a metal detector in any of the places visited
by the journalists? If so, how was it they didn't sound the alarm on
detecting the batteries and the transmission cord?
* Was the activation mechanism automatic or manual? If
manual, it must have been activated before the journalists entered the
presence of those interviewed and the equipment must have video-recorded
their conversations with others too such as the security guards, the
personal assistants etc. Where are those recordings?
* Was there an editing of the recordings? If so, to
what extent and for what purpose? That there has probably been
considerable editing is apparent to even a lay observer. Modern
cameras automatically record the dates on which the shots were
taken. The dates seem to have been edited. Why?
* Is there a concurrent written record of the various
stages of the sting operation from which one could see how many times a
person was interviewed and what subjects figured during each
conversation?
* Has there been a morphing, interposing, substitution
etc of the images/conversations and were these done manually or were
they computer-generated?
Through computer-generation techniques one could create
a make-believe picture of something, which is far from what actually
happened. It is said that in the spectacular scenes of the film
"Gladiator", only 30 per cent of the shots were actually taken
with a camera; the rest were computer-generated. It is possible for
a person to confine the secretly-recorded discussions in one session only
to individuals without reference to defence contracts and to confine the
discussions in another session only to defence contracts without reference
to those individuals and morphe the two in order to create an impression
that the names of the individuals figured in connection with the defence
contracts.
The possible dangers to national security from alleged
attempts of foreign intelligence agencies to use such covert and
computer-generation techniques to destroy public confidence in their
political leadership and administration had figured in past testimonies
and statements of officers of foreign intelligence communities.
Writing in the "Foreign Policy" (Fall 1997), John Deutch,
Director of the CIA during Clinton’s first term, referred to the dangers
of morphed images and messages being introduced into a country's radio and
TV systems, spreading lies and inciting people to violence.
Keeping these in view, the first step in the
investigation should be for the Central Vigilance Commissioner to ask
Tehelka.com to submit all its films and tapes unedited along with the
camera with which they were recorded. He should refer them to a
foreign expert on the examination of purported covert recordings for
expert opinion on the following questions:
* Were the recordings done with the equipment produced by
the company?
* If so, is there any evidence of editing,
interposing, morphing etc and of the use of computer-generation
techniques?
If the expert opinion confirms the authenticity of the
recordings, stern action must be taken against those figuring in the
recordings. At present, because of the admissions of Shri Bangaru
Laxman and Ms.Jaya Jaitly, there is a strong presumption in favour of the
authenticity of the recordings. Despite this, the entire recordings
must be subjected to technical examination by experts as is normally done
in other democracies.
(The writer is Additional Secretary (retd), Cabinet
Secretariat, Govt. of India, and, presently, Director, Institute For
Topical studies, Chennai. E-Mail: corde@vsnl.com)
