“So now we are wanting to make sure that everything is clear out there, and to really just put this rest once and for all,” said Common Council member Oliver Davis (D – 6th District). “And I think that it can be. And making sure that those who have been punished are the right ones who have been punished.”
But Friday, the man who wrote the Federal Wiretap Act in 1968 said it would be illegal to release or even listen to the tapes.
“The purpose of the federal law was to protect privacy,” said G. Robert Blakey, the Notre Dame law professor who drafted the Wiretap Act. “Privacy of the people who use the phones, and that hasn't changed.”
Many people who are still pushing for the tapes to be released say there was not a reasonable expectation of privacy on that one detective bureau phone line that was mistakenly recorded for at least two years.
“Knowing so many police officers and knowing that they all understood the lines were taped, it’s always been our position that the taping itself, there was nothing wrong with [it],” Boykins’ attorney, Tom Dixon, told WSBT.
“We are also arguing the fact that this is not wiretapping,” added Davis.
“Oh but we’ve got the right to know!” Blakey quipped. “Somebody else has a right to privacy. Electronic privacy here trumps.”
Blakey said he doesn’t know all the facts in this case, but he does understand the law he wrote and what it means.
“I can interpret the law one way, which Mr. Buttigieg is,” said Brown. “Citizens United is interpreting the law another way. That's why we’ve got judges.”
But it would take a couple different scenarios to possibly get a judge involved in the case at this point. In one instance, someone would have to file a lawsuit against the city specifically asking for the tapes to be released. Also, anyone who was recorded on the phone line in the detective bureau can file suit.
Last week, the mayor said he would send the tapes to the Civil Division of the US Justice Department to investigate.
According to state law, Common Council members can begin their own investigation into city employees or a city department and they also have subpoena powers. But they can only use those powers if a federal law does not come into play.
If the Wiretap Act is indeed in play in this case, federal law trumps state law. If a judge were to rule that what happened at the police department is NOT wiretapping, those investigative and subpoena powers might come back into play.