DOJ Still Not Informing Defendants About Sources Of Surveillance Program-Derived Evidence Being Used Against Them

from the laws-are-for-defendants dept

The NSA's Section 702 surveillance program is massive. It provides the NSA (and the FBI) with access to the email content and internet activity of millions of people, some of them US citizens. Quite obviously, the intelligence gathered with it has led to prosecutions. But the government is still seemingly uninterested in informing defendants about the origin of evidence being used against them.

Just Security's Patrick Toomey notes that the US government -- after a brief flurry of complying with federal law -- appears to have gone back to ignoring it.

Up until 2013, no criminal defendant received notice of Section 702 surveillance, even though notice is required by statute. Then, after reports surfaced in the New York Times that the Justice Department had misled the Supreme Court and was evading its notice obligations, the government issued five such notices in criminal cases between October 2013 and April 2014. After that, the notices stopped — and for the last 20 months, crickets.
Toomey notes that the DOJ -- after realizing its original interpretation of the statute was perhaps a bit flawed -- adopted a new interpretation of the statute, one that is only marginally broader.
Based on what can be gleaned from the public record, it seems likely that defendants are not getting notice because DOJ is interpreting a key term of art in Fourth Amendment law too narrowly — the phrase “derived from.” Under FISA itself, the government is obliged to give notice to a defendant when its evidence is “derived from” Section 702 surveillance of the defendant’s communications. There is good reason to think that DOJ has interpreted this phrase so narrowly that it can almost always get around its own rule, at least in new cases.
This is one of the government's favorite games: redefining common words to serve the purpose of obscuring surveillance efforts. How does the DOJ dodge having to report the origin of evidence "derived from" the 702 collection? Toomey speculates it could take multiple approaches. The easiest way to eliminate any mention of 702 collections from submitted evidence is to obscure its origin by citing other surveillance techniques -- in other words, parallel construction.

The five notices sent out after the DOJ briefly reappraised its notice obligations are probably the last we'll see for awhile. The DOJ clearly isn't interested in adhering to the statute. It has spent the intervening months perfecting its source obfuscation. It also may have obtained official legal guidance (from the Office of Legal Counsel) that "explains away" its obligation to inform defendants of the source of evidence. If so, the American public won't be apprised of the DOJ's interpretation of its notice obligations any time soon. The US government has made it almost impossible for the public to discover the legal rationales for its national security efforts.

The government likes its secrets. And it also likes to be challenged as infrequently as possible. That's the other reason the DOJ is burying links to FISA-authorized surveillance.
Crucially, it’s not only the rights of criminal defendants that are at stake, and it’s not only Section 702 surveillance that is implicated by the government’s cramped view of its notice obligations. The government’s use of standing doctrine and the state secrets privilege in civil cases has left precious few ways of obtaining public, adversarial court review of surveillance programs. If the government can regularly avoid its duty to give notice to criminal defendants, it will have succeeded in all but closing the courthouse doors to cases challenging surveillance that affects millions.
Few plaintiffs have been granted standing in national surveillance-related lawsuits and I'm sure that small number is still far more than the government would like to see. That number isn't going to increase anytime soon, not with the DOJ treating its notice obligations as entirely optional or never applicable.


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  • icon
    Will-INI (profile), 15 Dec 2015 @ 12:22pm

    Keep Your Head Down

    Is there anyone left who thinks our government acts in our best interest? We live in an age where if you don't want to get in trouble you best keep your head down and your mouth shut.

    The internet was supposed to free us from outdated social norms enforced by our government. So far, it appears just to have given the government more ammunition to go after this week's disfavored group.

    Is this generational? Will we turn the corner when judges who don't use email age out? Or will all the stops be in place by then to keep change from happening?

    I don't know. But I'm not encouraged. China and the US don't seem too far apart on internet policy these days.

    reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 15 Dec 2015 @ 4:10pm

      Re: Keep Your Head Down

      The internet was supposed to free us from outdated social norms enforced by our government. So far, it appears just to have given the government more ammunition to go after this week's disfavored group.

      Back in the mid '90s, lurking around cypherpunks, it was commonly believed that the authorities thought they'd let it get out of control with the many to many anarchic nature of the net, and they'd eventually push to lock it back down under its control. It's taken twenty years so far and though they've messed it up quite a bit, it's still pretty much many to many anarchy. Personally, I think they're poking a tiger with a stick and the tiger's not quite annoyed enough yet to bother doing anything about it. That could change overnight.

      So far, the LEOs have had fairly pathetic success against manufactured FBI plots and doofuses like Dread Pirate Roberts & Silk Road. However, they can't even catch terrorist plots like Paris happening unencrypted right under their noses. That's abysmal incompetence at best, or sheer bloody minded laziness at worst.

      All the NSA appears to care about is building a bigger haystack and helping its buddies in the DEA fsck up miserably. They're making the War On Drugs look sillier every day.

      I doubt anyone out here has much to worry about based on that level of performance. They're incompetent and lazy and (as much as I respect what he's done) even a low level drone like Snowden can take them to the cleaners, and has repeatedly.

      Big Brother didn't rely on brilliance and technical excellence. He relied on fear and brutality. That's our greatest worry, that they can justify things to themselves like "enhanced interrogation techniques" (torture) and flushing the Constitution for "National Security" purposes. What they think they'll end up with that's worth having, I don't know. I wouldn't want it.

      Personally, I like to take heart in the fact that, "They'll be dead soon." :-)

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Dec 2015 @ 2:43am

      Re: Keep Your Head Down

      I have quite a few friends who think we should blindly trust our government and anyone targeted by them must be a criminal.

      I no longer talk to them about politics and rights. Like smashing your head into a brick wall.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Dec 2015 @ 12:33pm

    The DOJ should change its initials to DOI, the Department of Inquisition.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Dec 2015 @ 12:45pm

      Re:

      DOJ is fine, its just that it actually stands for...

      Department Of Judas

      A lot of government entities are already willingly betraying the country whilst citizens look on with relative disregard.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Dec 2015 @ 2:03am

      Re:

      No-one expects the Department of Inquisitions..

      reply to this | link to this | view in chronology ]

  • identicon
    Personanongrata, 15 Dec 2015 @ 12:57pm

    Arbitrary Application of the Law is Tyranny

    Just Security's Patrick Toomey notes that the US government -- after a brief flurry of complying with federal law -- appears to have gone back to ignoring it.

    Following the "law" is for little people not the titans that stand bestride the US Department of Justice (HaHa).

    Citizens are harassed and destroyed for violating the most petty of "laws" while the entirety of the US government runs amok murdering, torturing, kidnapping, thieving and lying at every opportunity and in every conceivable manner.

    "...with liberty and justice for all."

    Unless of course you're an American citizen who finds themselves in the US governments cross hairs and it's Kafkaesque system of justice.

    reply to this | link to this | view in chronology ]

  • identicon
    Fin Hoil Tat, 15 Dec 2015 @ 7:34pm

    They are the Enemy

    Until the culture of impunity ends the American political and legal systems and those that control it are the enemy of the people. They are the tyrants the founders feared most when they penned the constitution. Read "They Thought They Were Free". Fascism without genocide is still fascism and fascism is never benign.

    reply to this | link to this | view in chronology ]

  • identicon
    kingthieugia, 15 Dec 2015 @ 8:23pm

    king

    Back in the mid '90s, lurking around cypherpunks, it was commonly believed that the authorities thought they'd let it get out of control with the many to many anarchic nature of the net, and they'd eventually push to lock it back down under its control. It's taken twenty years so far and though they've messed it up quite a bit, it's still pretty much many to many anarchy. Personally, I think they're poking a tiger with a stick and the tiger's not quite annoyed enough yet to bother doing anything about it. That could change overnight.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 15 Dec 2015 @ 8:25pm

    A pile of crap by any other name...

    The easiest way to eliminate any mention of 702 collections from submitted evidence is to obscure its origin by citing other surveillance techniques -- in other words, parallel construction.

    No need to sugarcoat it, call it what it is: Evidence laundering.

    Just like money laundering involves taking funds attained through illegal methods and making it look like it originated from legal sources, evidence laundering is taking evidence attained through illegal means, and making it look like it came from a legal source.

    reply to this | link to this | view in chronology ]

  • icon
    kP (profile), 16 Dec 2015 @ 8:18am

    Money: It's like Tribbles

    I wish I had a tribble....

    reply to this | link to this | view in chronology ]


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