Lawyers begin requesting NSA data evidence for use in murder and divorce cases
The National Security Agency has spent years demanding that companies turn over their data. Now, the spy agency finds the shoe is on the other foot. A defendant in a Florida murder trial says telephone records collected by the NSA as part of its surveillance programs hold evidence that would help prove his innocence, and his lawyer has demanded that prosecutors produce those records. On Wednesday, the federal government filed a motion saying it would refuse, citing national security. But experts say the novel legal argument could encourage other lawyers to fight for access to the newly disclosed NSA surveillance database.
"What's good for the goose is good for the gander, I guess," said George Washington University privacy law expert Dan Solove. "In a way, it's kind of ironic."
Defendant Terrance Brown is accused of participating in the 2010 murder of a Brinks security truck driver. Brown maintains his innocence, and claims cellphone location records would show he wasn't at the scene of the crime. Brown's cellphone provider — MetroPCS — couldn't produce those records during discovery because it had deleted the data already.
On seeing the story in the Guardian indicating that Verizon had been ordered to turn over millions of calling records to the NSA last month, Brown's lawyer had a novel idea: Make the NSA produce the records.
Brown's lawyer, Marshall Dore Louis, said he couldn't comment while the trial was ongoing.
"Relying on a June 5, 2013, Guardian newspaper article ... Defendant Brown now suggests that the Government likely actually does possess the metadata relating to telephone calls made in July 2010 from the two numbers attributed to Defendant Brown," wrote U.S. District Judge Robin Rosenbaum in an order demanding that the federal government respond to the request on June 10.
The laws of evidence require that prosecutors turn over to the defense any records they have that might help prove a suspect's innocence.
"This opens up a Pandora's box," said Mark Rasch, former head of the Department of Justice Computer Crimes Unit, and now an independent consultant. “You will have situations where the phone companies no longer have the data, but the government does, and lawyers will try to get that data.”
The government is refusing to say whether that law was used to develop evidence to charge Adel Daoud, a 19-year-old Chicago man accused of the bomb plot.
And Daoud’s lawyers said in a motion filed Friday that the reason is simple. The government, they said, wants to avoid a constitutional challenge to the law, which governs a National Security Agency surveillance program that has once again become the focus of national debate over its reach into Americans’ private communications.
“Whenever it is good for the government to brag about its success, it speaks loudly and publicly,” lawyers Thomas Durkin and Joshua Herman wrote in their motion. “When a criminal defendant’s constitutional rights are at stake, however, it quickly and unequivocally clams up under the guise of State Secrets.”
“The most troubling part of the case is the government seems to be trying to hide the ball,” said Alex Abdo, a staff attorney for the American Civil Liberties Union, which argued the Supreme Court case on behalf of the journalists, lawyers and activists. “They told the Supreme Court not to worry about reviewing the FISA Amendments Act because it would get reviewed in a criminal case. They said if they used the evidence in a criminal case, they’d give notice. Now they’re telling criminal defendants they don’t have to tell them. It’s a game of three-card monte with the privacy rights of millions of Americans.”
On Wednesday, federal prosecutors filed a motion saying they cannot respond to Brown's request because the federal government does not have the data the suspect seeks — cell site location information, or CSLI. The leaked court order which inspired the request included was unclear on which metadata phone companies turn over.
The government’s motion also invokes the Classified Information Procedures Act (CIPA), which allows the prosecutors to respond to such requests "in camera," or privately with the judge, to explain what data it does or does not have.
"The (CIPA) allows the government to protect classified information by claiming that, first, the phone records are classified, and second, whether or not the government has phone records is also classified," Rasch said.
The assertion in the motion that "at the outset, the government does not possess the CSLI data," is intriguing, as it clearly refutes the notion that the NSA obtains location data as part of its routine records acquisition from telephone companies. But it's unlikely this case will yield more clues about what data the NSA does have, as additional legal discussion will be private.
Even without location data, it's easy to imagine other cases where call records might help prove a suspect's innocence. Rasch says the NSA should expect to deal with a lot of new requests for evidence now.
"The thing was, in the past, no one knew these records were there. Now lawyers know, and they will ask for it,” he said.
"This is a little bit of an awakening to the government, that you can't hold massive amounts of personal data with impunity," he said. "Once you do, a lot of obligations and responsibilities kick in. One of the consequences of keeping data is that now you open yourself up to discovery."
Different standards apply to discovery in civil cases, such as contested divorce, but Solove said it's possible lawyers in those cases could also appeal to the NSA for evidence, now that they know the records exist.
If the government acknowledged that it had used evidence derived from the FISA Amendments Act, Daoud would have standing to challenge the law’s constitutionality. Specifically, Daoud’s lawyers would be able to take on a provision known as Section 702. The law permits the interception of foreign targets’ e-mails and phone calls without an individual warrant, including when the foreigners are in communication with Americans or legal residents.
The U.S. Supreme Court in February rejected a constitutional challenge to Section 702 by a group of journalists, lawyers and human rights advocates, saying they had no standing to sue because they had not proved that their communications had been intercepted.
But the court also said that if the government intends to use information derived from the Section 702 surveillance in a prosecution “it must provide advance notice of its intent,” and a defendant may challenge the lawfulness of the surveillance. The government assured the court that it would give such notice to criminal defendants.
Stephen I. Vladeck, a law professor at American University, said, “Everyone knows the role that Section 702 is playing in a case like this.” But, he said, “thanks in part to the Supreme Court, the government can use Section 702 and then never have to defend its constitutionality.”http://redtape.nbcnews.com/_news/2013/06/20/19061109-lawyers-eye-nsa-data-as-treasure-trove-for-evidence-in-murder-divorce-cases?lite
http://www.outsidethebeltway.com/nsa-metadata-about-to-become-evidence-in-civil-and-criminal-trials/
http://www.washingtonpost.com/world/national-security/chicago-federal-court-case-raises-questions-about-nsa-surveillance/2013/06/21/7e2dcdc8-daa4-11e2-9df4-895344c13c30_story.html
http://news.findlaw.com/apnews/456da6bd99c24b27a90bc3df69d91ec7