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Bank robbery suspect wants NSA phone records for his defense
- 616c 13y agoHow is this any different than when those big and small call witnesses to their defense they know will not come. For instance, Milosevic's defense team in his war crimes trial attempted, moronically, to call former PM Tony Blair and former US President Clinton as witness. I am sure they knew he would not show up. http://news.bbc.co.uk/2/hi/europe/3613020.stm http://news.bbc.co.uk/2/hi/europe/3613020.stm I also recall Saddam doing similar things in his trial. Is there not a name for this type of failed legal tactic?
- gambiting 13y agoHe will never get them. I will give you a different example - in 2010, when the Polish president died in a plane crash in Russia, it was known that he placed a phonecall from his satellite phone shortly before the crash. Well, for investigation, Polish government wanted these records, and the only country that had them was.....the United States of America. Back then it was known that they intercept and store ALL satellite calls, even the ones made by a president of a foreign country. And guess what? The US refused to release them, under the guise of "national security". Polish(and Russian) investigators NEVER got these records, even though they clearly exist. Therefore, I don't think a guy like this would ever get what he wants from the US government, it's just not how it works.
- alan_cx 13y agoThe victims are or were foreigners, and not Americans. Apparently that makes a difference.
- redblacktree 13y agoIt may help that this requestor is a US citizen. This gives him certain rights that the Polish government did not have in the case that you cite.
- znowi 13y agoElsewhere on the Internet :) http://i.imgur.com/VGaCBrl.png http://i.imgur.com/VGaCBrl.png
- visarga 13y agoThis will get messy. Everyone will start pulling at this database. Can they send men to prison on account the information needed to exonerate them is classified, even if the person requesting the data is the same person under surveillance?
- drivebyacct2 13y agoMore like, withholding evidence! Think about it. That metadata could very plausibly confirm or deny alibis (or at least help confirm/deny maybe).
- devcpp 13y agoIs it not considered evidence acquired illegally and unusable in court? Considering most people think that most of this information does not qualify as probable cause per the Fourth Amendment...
- pyre 13y agoMy understanding is that such evidence is only thrown out of court when challenged by opposing counsel. For example, a prosecutor puts forth some evidence, then the defence lawyer objects, and the judge rules on if it is admissible. If the defence doesn't object...
- mayneack 13y agoThat requires admission of illegality
- drivebyacct2 13y agoI don't know why but this put this all in a whole extra sharp perspective for me.
- nknighthb 13y agoThe exclusionary rule is there to protect the defendant, and the defendant can ignore/waive its application. Even if it could be applied without regard to whether the defendant objected, it has been gutted in recent decades by our radical right-wing Supreme Court, who think illegally-obtained evidence is just dandy so long as excluding it from court proceedings wouldn't actually change the government's behavior in collecting it.
- mbillie1 13y agoIt would be very interesting to see what would happen if this were to occur in a case where the defendant's phone records were relevant to the defense's case and the defense attorney asked for the NSA records to demonstrate innocence. Not sure if this case qualifies or not, as I haven't heard anything of it other than this article.
- asperous 13y agoIf the defendant is the one who wants the phone records, can't his laywer call the phone company on his behalf and obtain them?
- cmwelsh 13y agoThe NSA has the database. The phone companies do not. It would be very impractical and a huge invasion of privacy to record conversations like this.
- anigbrowl 13y agoThe NSA database is made up of records from phone companies, per the Verizon FISA warrant. This story does not concern the recording of conversations, but records of calls made. Of course, the appellant's contention is probably specious but that's not unusual in criminal cases.
- josephagoss 13y agoThe phone company does not have the records anymore, according to the article. So they want to get the records from the NSA because they probably have not deleted them.
- tass 13y agoIn this case they're hoping the NSA kept better records than the phone provider: "The prosecution had told defense attorneys that they were unable to obtain Brown's cellphone records from the period before September 2010 because his carrier, MetroPCS, had not held on to them."
- greeneggs 13y agoIn the short term, before more safeguards are put in place, it is actually much more dangerous that this program is public knowledge. When it was a secret, the government couldn't use the information it gathered in a public case, for fear of giving up the secret. But now they can use it.
- dietrichepp 13y agoJust because it is public knowledge doesn't mean that the government can use the information to prosecute. Suppose Alice and Bob are talking about a big drug deal over the phone, and Carol (working for the NSA) listens in. Carol lets her friend Dan know, and Dan's a police officer so he goes on a stakeout and catch Alice and Bob in the act, with $1M of cocaine in the trunk of Alice's car, and $1M of cash in the trunk of Bob's car. Open and shut case, right? US case law states that the cocaine is "fruit of the poisonous tree", because the cocaine would never have been discovered by the police if it weren't for the illegal wiretap. Therefore it is inadmissible as evidence. The prosecution's case is sunk, and Alice and Bob go free. (Note that Dan never committed any crimes, might not be aware of the wiretap, and got good, hard, physical evidence that Alice and Bob were breaking the law.) So if the government tries to use an illegal wiretap in an actual criminal case, it will probably do the prosecution more harm than good. Best chance for a conviction is to pretend the wiretaps never happened. Edit: I think a good example here is "Nardone et al. v. United States." In this case, Nardone was convicted of smuggling alcohol etc. during a first trial based primarily on evidence acquired through illegal wiretaps. This conviction was overturned because the wiretaps were not admissible as evidence. On the second trial, Nardone was convicted again on other evidence. This conviction was also overturned, because the prosecutors wouldn't have had this evidence if it weren't for the wiretaps.
- cjh_ 13y agoVery well put. > Best chance for a conviction is to pretend the wiretaps never happened. And this is why PRISM coming to light is a good thing as it gives the defense another reason to question intent, in the scenario above it would be Bob and Alice asking why Dan was staking out their house and searching their cars.
- lifeisstillgood 13y agoAnd in one go, NSA moves from evil fuckers to Dropbox-for-the-whole-world. Next step, political refugee uses NSA records to determine who was torturing him in Afghanistan. To be fair it's absolutely brilliant - the only real defence we have against total surveillance is to be able to see what the guards are watching as they watch. This is a step along that road. Mr Brown may be doing the world a much bigger favour than we think.
- monsterix 13y agoDoes this gives Bowman another chance to appeal against Monsanto, in the Biotechnology suit?
- mtgx 13y agoBefore we do that, let's establish, out in the open, that these laws are Constitutional. The Constitution still matters - right?
- aggronn 13y agoHonestly, if total surveillance is constitutional, you have to figure the constitution isn't really that good.
- lifeisstillgood 13y agoThank you ! Best laugh I've had all day. I actually suspect that total surveillance is in fact, inevitable. Or possibly already here. All the NSA seems to be doing is pulling together existing digital records. There seems to be little original surveillance if that makes sense.
- inthewind 13y agoIf it all hushes down and we begin to get on with our daily lives, with the program still intact, perhaps you'll be able to make an information request. For a fee of course, oh hang on, isn't that how it already works? You've got more faith in the freedom of information than sadly I! Perhaps information will randomly go missing. Just like the spurious claim that the CCTV network was down on the London underground on 7/7 (really??) Or you'll get it rebuffed under something like: ‘likely to prejudice the defence of the British Island’ http://peacenews.info/node/6840/remote-killing http://peacenews.info/node/6840/remote-killing Hot air from the Tories in 2010: http://www.conservatives.com/News/News_stories/2010/04/~/media/Files/Downloadable%20Files/Big%20ideas%20to%20give%20Britain%20Real%20change.ashx http://www.conservatives.com/News/News_stories/2010/04/~/med... 1. Never again be governed for years by a prime minister with no popular mandate. (Isn't that rather ironically exactly what we got!) 3. They'll expand on the freedom of information act. 7. They'll protect whistleblowers. 8. The right to data act, the public will have the right to appeal if public bodies refuse requests for data collected by the government.
- achille 13y ago21 Comments so far and none commenting the State's Secret Privilege that allows such requests to be thrown out immediately. None of these lawsuits will go anywhere. See: http://en.wikipedia.org/wiki/State_secrets_privilege http://en.wikipedia.org/wiki/State_secrets_privilege People erroneously tortured by the govt had their cases thrown out. Cases as low as bank robbery have zero chance.
- icambron 13y agoI'm not so sure. In what way are this guy's phone records a state secret?
- Confusion 13y agoBecause officially these phone records don't exist and acknowledging their existence is a confession that everything Snowden alledges is actually true.
- fletchowns 13y agoI'd say it's because they are part of a top secret government program
- deleted 13y ago[deleted]
- michaelfeathers 13y agoNot any more.
- Mordor 13y agoActually, there are a lot of secret programs and there's going to be a PRISM II, which, coincidentally keeps an exact copy of the data from PRISM after it has been switched off. The only way to get around this is to open up the NSA to an independent team of international cyber experts from the UN. It would set a great precedent of 21st century democracy and challenge totalitarian regimes around the world.
- scotty79 13y agoThat's exactly why I think total surveillance can be totally fine. You just need to have unrestricted access to all recordings of you. It can prove many things for you and if someone will try to smear you by using some recording ripped out of context you can provide context if you have access to the material. Of course US will have to do something about the law mess. Whatever they do, it can be only improvement over current: we have too many laws to even count them, and we are sort of fine not enforcing most of them, most of the time because bunch of them are silly.
- willvarfar 13y agoIf you can get info on yourself, can a terrorist use it to determine if whether they are suspected or not? I mean, the point of the government gathering the info was to have a monoploy on it.
- kaybe 13y agoThat sounds like it would increase identity theft a lot.
- babby 13y agoBut if we rely on this too much it would in theory give more power to hackers, and more reliance on the secureness of such a system. Suddenly you're being framed by some entity with sufficient political or hacking power.
- scotty79 13y agoI think it will eventually evolve into a system where everyone has access to everything, but it might take a generation or two. Intersting times.
- TeMPOraL 13y agoI sometimes thought the same way, but yesterday I read Asimov's "The Dead Past" and it made me realize where the limit of this lies. I'm not sure if we want it that far.
- paulsutter 13y agoHis lawyer is a genius and a hero. A genius because when he doesn't get the records (and be wont), it will appear the prosecution has something to hide. He wins either way. And a hero, because this makes clear the exact problem with these databases. Once they exist, there are endless uses for that each -seem- reasonable. This request illustrates that slippery slope in a way that makes even the NSA nervous.
- msravi 13y agoBut nothing is known about how long the NSA keeps records. So couldn't the NSA just shrug off the request saying that they don't have the record and not reveal any more details on their retention policy under the pretext that revealing anything more is a national security risk?
- 3A2D50 13y ago>But nothing is known about how long the NSA keeps records. They've admitted to at least five years. See 1:58:45 [1] when Feinstein confirms with Alexander. [1] http://www.c-spanvideo.org/program/CybersecurityThreats http://www.c-spanvideo.org/program/CybersecurityThreats
- deleted 13y ago[deleted]
- graue 13y agoMore precisely, at 2:00:35, "...and are deleted after a period of five years."
- visarga 13y agoTrying to make a mindmap of what has transpired and implications: * monitoring the world - better PR (how to spin news to the masses) - better data for elections (get out to vote campains, donations) - this way they improve their elections machine - better metrics for governmental activities and social development - this is what I hope it will be used for * manipulation - bubbling - presenting slanted/targeted results in searches and feeds - requires deal with FB and Google - in this way they can promote the opinions they want and actively downplay the activist movement * propaganda - using analytics they can target write articles in the media to influence public opinion * blacklisting - we've seen this in China and US, with The Great Firewall and No-fly List, it will probably become much more pervasive - they can blacklist persons but also websites and specific messages in social networks * targetting people - they can auto-identify activists for any political orientation, networks of people, the social influencers * blackmailing - they know our most private interests and they can use that for blackmail when a person has been auto-identified or in any other situation * wildcard - what will happen in the future with this information - it could fall in the hands of Republicans - similarly, other countries could make use of such datasets - various companies could use the info for their own benefit (for example Google could use the data in many ways that would scare the people) * slippery slope - use of surveillance data in civil and crimilal lawsuits -> imposing a reign of terror on population * the basic questions - who has access? - what data has been collected? - how are they using it, and what machine learning tools are they applying on it? - who is going to get such data in the future and how are they going to use it?
- deleted 13y ago[deleted]
- rusbra 13y agoWow... and here we see the tables have turned.
- cLeEOGPw 13y agoI was just thinking - don't get me wrong - but is there any way to know whether if the surveillance actually protected any terrorist attacks, and if yes, how much? I think it is theoretically possible that it helped to prevent many attacks, but government could not announce it because that would reveal the whole network. It would be best if somebody would leak some documents that would show the terrorist attack being prevented. That would probably be the first leak that revealed not the crimes of the government, but actually good work, that was supposed to stay a secret.
- pseingatl 13y agoThis is not the first time a request like this has been made. In the Noriega case, the attorney for one of the co-accused pilots requested copies of telephone conversations intercepted by the NSA at their secret facility in Panama called "The Tunnel." The Government went ballistic and tried to have the defense attorney arrested--somehow he had obtained a copy of a map showing the existence and location of the facility. The Government merely denied that it had such records but quickly made a princely deal with the lawyer which ended up excluding the pilot from the case and giving him a sentence of less than a year. The other issue that bothers me with respect to the defense lawyer's tactic here is that it does not appear he has complied with the Classified Information Procedures Act. Since the request was made in the middle of trial, perhaps the judge waived these, but failure to comply would be another way to get around the disclosure requirement. Finally, line U.S. Attorneys really have no knowledge of these matters--Main Justice flies in CIPA specialists to assist whenever there is classified information.
- roboneal 13y agoIs the existence of the phone "metadata" classified anymore after national media debate and the public acknowledgement by POTUS? And unless this suspect is under a national security investigation, I can't see how his specific phone records can be classified in "subset".
- messick 13y agoIf this was not a stunt, the lawyer would have just asked the phone company for their records.
- ignostic 13y agoI see a lot of smart people making intelligent comments, but intelligence is not knowledge of the law. I'm not a lawyer, and am happy to be corrected by one, but I do have some small knowledge of law. First, under the law there is no entity called "government." I see these blanket statements about "the government must." The prosecutors don't belong to the NSA, and so we need to understand that laws rarely apply across the spectrum to the whole of the federal government. Second, we need to understand that there are lots of rules and laws related to disclosure. The defense and prosecution can ask for many documents, and there are well-defined rules for what you can withhold, redact, and what you must produce. Because the entities are separate (see above) the rules that apply to the prosecution are different from those that apply to the NSA. Finally, the NSA need only comply with the rules for issuing subpoenas. This is where things get messy. I'd be surprised if a subpoena gets issued at all, more surprised if the NSA responds, and I might die of shock if they said anything besides, "no, because national security." The NSA works to catch criminals - not to defend anyone. I know it seems and probably is unfair, but this lawyer's request is going nowhere. It's the same as with "anything you say can be used against you," the police aren't required to disclose the things you tell them that would help your defense. Don't expect law enforcement to come to your aid in criminal defense. The sad truth is that the information recorded by the NSA can be used to prosecute, but it'll be a cold day in hell before the NSA lets you use their information for your defense.
- grappler 13y agoThis sounds like a great explanation of an additional reason why the NSA collecting billions of communication records is harmful to civil liberties. It empowers prosecutors with no proportional aid to defendants.
- ignostic 13y agoYes, this is one of the main problems I see with the NSA.
- roboneal 13y agoApparently, even the NSA has a FOIA process: http://www.nsa.gov/public_info/foia/submit_foia_request/foia_request_form.shtml http://www.nsa.gov/public_info/foia/submit_foia_request/foia... If they don't have to respond to discovery, they certainly are legally required to respond to this. If they play the "national security" or "privacy" card, this defendant has a strong case to appeal any conviction considering that the existence of this database has been essentially "unclassified" by POTUS with his public acknowledgements.
- robomartin 13y agoSome have raised the idea that, if surveillance data on everyone were publicly available it'd be OK. The problem is that this will never include everyone. At the very least all government employees, from the President to local cops will be excluded. Beyond that there will be whole groups with varying degrees of influence who will be outside the system. I came across an example of how this works a couple of years ago when I came across a toddler left alone in a car while strapped into her car seat. This was at the local post office. It was easily 110 degrees outside. The car was not running (no air conditioner). After about 15 minutes the mother came out of the post office. I confronted her. She saud there was nothing I could do about it. I took down her licence plate and called the police. My jaw dropped when The cops told me they could not help me. Her licence plate was protected because her husband was a cop. They claimed they could not get any data on that plate. I was fuming. I called again and asked for a supervisor to come and talk to me. Two cops came to my home. I had them interview my kids --who were with me and saw it all-- to get the facts. I got the same story. I told them that this kid could have died and that I was sure the cop husband would want to know about it. I got the clear and distinct feeling that pushing further would have had potentially negative consequences for me. I had to balance the my indignation with the potential to piss off the brotherhood of cops and my family's well being and safety. I dropped the whole thing and threw away the number. I know people who were cops in other countries ad have heard enough stories in the general vein of "fuck with cops and you'll regret it" that I had to opt for self preservation. My point is that there are sub-societies that do not live in the same reality the rest of us enjoy. The idea that surveillance would be applied and disclosed equally is, in my opinion, not aligned with reality.
- johnsoft 13y agoThat truly is mind-boggling. I see cops turn their lights on to run red lights where I live and it makes me just as mad. One of these days one of them is going to get T-boned. I wonder whether this "protection" happened at the state or local level. License plates are given out by the state, so if you had traveled 100 miles in some direction but not left the state, and had a different city look up the plate, would they have told you the same thing? Your story paints articles like this in a whole new light - http://www.nbcmiami.com/news/local/Florida-Highway-Patrol-Trooper-Who-Arrested-Speeding-Miami-Officer-Files-Lawsuit-184753781.html http://www.nbcmiami.com/news/local/Florida-Highway-Patrol-Tr...
- e3pi 13y agoThis issue and future questions described in these comments and comments posted across HN regarding PRISM NSA suggest the possibility that it will become illegal to raise questions that arguably threaten DHS, NSA. Something like the law against threatening the POTUS -not allowed by the 1st Amendment.