FBI Told Cops to Recreate Evidence from Secret Cell-Phone Trackers

https://theintercept.com/2016/05/05/fbi-told-cops-to-recreate-evidence-from-secret-cell-phone-trackers/

by nomoba • 10 years ago

310 69 10 years ago

devishard• 10 years ago

Why is this surprising to anyone?

It's time to realize that our own law enforcement is a greater threat to us than terrorists abroad. This behavior needs to be made illegal.

jimrandomh• 10 years ago

It is already illegal. This behavior needs to be punished.

tetrep• 10 years ago

“This is the first time I have seen language this explicit in an FBI non-disclosure agreement,” Nate Wessler, a staff attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project...

programmarchy• 10 years ago

law enforcement a greater threat made illegal

See a problem here?

roywiggins• 10 years ago

Surprising, no. Surprising to see it in writing from the FBI? Yeah, a little.

StanislavPetrov• 10 years ago

The unfortunate fact is that the FBI doesn't mind putting it in writing because any vestige of justice on our legal system has been swept away. Agents of the government understand that they are completely above the law, so much so that they don't even bother going through the motions anymore to pretend otherwise.

TaylorAlexander2• 10 years ago

This comment is on every post where something like this is revealed.

Yes, we "all" have known that parallel reconstruction has been going on. Except for the skeptics who require hard evidence of its occurrence. Well, now we have evidence.

This isn't about the practice being surprising. It's about the practice finally being documented.

Semiapies• 10 years ago

It hasn't been "finally" documented, the documentation has been out for almost three years.

neilk• 10 years ago

Yep.

"Why is this surprising?" There are reasons to discuss it other than surprise. Better evidence may allow for official reactions, inquiries, or prosecutions.

"Is anyone so naive that..." Yes, we weep for our lost innocence. Now we see that your jaded nihilism was justified all along. Forgive us.

"Of course, nobody really cares..." Back that up with stats. Are you sure nobody cares? Are you sure that is a permanent state of affairs? If you're also asking "Why is anyone surprised?" that's acknowledging we've got a delta in collective interest here, so the complaint is self-canceling. And how many people's attention is needed? A very vocal and effective 5% of the population can get a lot done.

"Of course, nobody can do anything..." Despite various pronouncements of the end of history, things continue to happen.

darpa_escapee• 10 years ago

I have yet to encounter a person who doesn't keep a pulse on tech / security and also believes parallel construction exists. 95% of Snowden revelations are still in conspiracy theory territory and aren't even Snopes worthy to most.

NoMoreNicksLeft• 10 years ago

It's already illegal by any sane interpretation of the law.

What does it even mean to make law enforcement behavior "illegal"? Who would enforce it? Obviously those in charge are either happy with it as it is or feel powerless to stop it.

hawleyal• 10 years ago

It is illegal.

chinathrow• 10 years ago

"Privacy advocates have long warned of “parallel construction,” in which investigators cover up information obtained without a warrant by finding other ways to attribute it — never allowing the source of the original lead to be scrutinized or subject to judicial oversight."

Get used to it. Or fight it.

btrask2• 10 years ago

Suggestion: stop calling this "parallel construction" and start calling it evidence laundering.

evan_2• 10 years ago

Why not just "fabricating evidence"?

btrask2• 10 years ago

The whole point is that they are finding real evidence through illegitimate means. If you try to say they are fabricating evidence out of whole cloth, no one will believe you.

ihsw2• 10 years ago

It's called spoilation of evidence:

The spoliation of evidence is the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding.

https://en.wikipedia.org/wiki/Spoliation_of_evidence

And an illegitimate evidence chain is called "fruit of the poisonous tree."

https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree

That said, the proof of a "poisonous tree" is itself difficult/impossible to obtain through legal means. Generally the message they send to anyone attempting to reveal the illicit nature of the evidence is told "even if you try, your proof will guaranteed to be inadmissible."

venomsnake• 10 years ago

They are not fabricating it. But it is like reading a crime novel knowing who the murderer is. When you already have the ending - you can find your own path with the clues left inside the book.

gshulegaard• 10 years ago

It's because the evidence turns out to be real (ostensibly), they just fabricate how they obtained it.

They get information which leads to an arrest. Once they get the arrest they construct an alternative explanation for how they got the original information in order to avoid scrutiny about how they originally got the information (such as the Sting Ray).

The information they got from the Sting Ray is, ostensibly, true/actionable but the Sting Ray itself is questionably un-constitutional. So instead they create a fake evidence trail leading to the information they got from the Sting Ray in order to explain any and all information actually obtained from a Sting Ray.

Like someone else said, it's kind of like evidence laundering. "How we got this is bad, so instead let's create a fictitious string of events to add legitimacy to it."

themartorana6• 10 years ago

"...FBI is mandating manufacture of a whole new chain of evidence to throw defense attorneys and judges off the scent."

Fraud works. Perjury even. This is lying to judges. Pure and simple. Every case should be thrown out or discredited and overturned. It's the only way to restore true balance to justice and let it be known that pure lying will not be tolerated, from anyone, ever.

Edit: it's the same as planting evidence. I've been trying to differentiate it in my head, and you can point to actual guilt, but procedurally (and in the name of justice) it's the same to me.

jonathankoren7• 10 years ago

It's not the same as planting evidence. Planting evidence is fraud. It's exactly what it is. It's an illegal search and then lying about it.

Judges do throwout illegally obtained evidence, the problem with this is, that the judge can't tell if it was illegally gained or not.

Kronopath• 10 years ago

I like this term. Let's start using it everywhere.

woJW1OrH73yE• 10 years ago

It talks about Kennard Walters as a success case in the link to the hemisphere program. I decided to look this up.

Is this the same case? http://www.plainsite.org/dockets/10r51h1ls/california-southe...

I'm not versed well enough in these things to accurately describe, but it looks like there was a motion for discovery, and the case was effectively dropped a week later?

programmer1234• 10 years ago

Part of Stallman's motivation for starting the free software movement was that your computer is an extension of your mind, and ubiquitous computer surveillance is basically the same as Orwell's thought police. The chilling effect is real, as demonstrated by a recent study that showed a drop off in terrorism related searches after the Snowden leaks. I freely research terrorism though, because I'm not "the type of person who would do something". So I basically rely on racial, ethnic, and economic discrimination to feel secure about what I search online. I just don't understand how James Comey and the FBI think that they can make us all safer by turning into criminals themselves.

TaylorAlexander2• 10 years ago

It's hard to say if the drop in terrorism related searches was due to the chilling effect or if people lost interest in the idea of terrorism.

themartorana6• 10 years ago

When they think we're all criminals, it's just a matter of degrees and justifications.

dredmorbius2• 10 years ago

Or who they want to catch.

cmurf• 10 years ago

Must have war to bring peace, etc. I even hear this from anarcho-capitalist who blame the government for everything, in effect to get rid of inherently coercive government violent revolution is probably necessary.

What I think is naive is the idea that the only bad kind of coercion is from governments, as if there's no such thing as economic coercion, or psychological coercion. And further is naive that it is possible to totally get rid of it.

_rknLA• 10 years ago

Relevant: http://www.wnyc.org/story/stingray-conspiracy-theory-daniel-...

ikeboy5• 10 years ago

How far does the "fruit of the poisonous tree" doctrine go? If someone is caught using illegal evidence, and then let go because of that, can the police follow them around to see if they commit more crimes, or is that all poisoned (because if the original evidence hadn't been obtained, they would never have found this person to follow)? Would they need to wait until the person came up in an entirely unrelated lead? Would they be able to add the information "person was previously let go on technicality for crime X" to a database which generates leads when cross-referencing other data (e.g. people in proximity to a crime, which might be crossed with known criminals? (I don't know if this is actually done))

greenleafjacob• 10 years ago

The doctrine is subject to four main exceptions. The tainted evidence is admissible if:

the chain of causation between the illegal action and the tainted evidence is too attenuated; or

ikeboy5• 10 years ago

What does that mean practically?

kelvin0• 10 years ago

It's awesome to see an episode of 'The Wire' become an actual headline.

dredmorbius2• 10 years ago

Many episodes of The Wire were headlines. Or ought have been.

See David Simon's "Audacity of Hope" speech. One version of it at UC Berkeley on YouTube.

(Simon's a great writer and has wonderful ideas to express. He's an abysmal public speaker. I actually edited out all the "ums" and "ers" from that, and cut it by 10 minutes (70 minute preso).

optforfon4• 10 years ago

Like it feeeels wrong.. but I can never articulate what the problem is with parallel construction. Can someone give a quick explanation of why?

drjesusphd3• 10 years ago

It short-circuits the fourth ammendment, which protects against unreasonable searches. The way this is enforced in the real world is that evidence is thrown out of court if it was obtained in an unlawful search. With parallel construction, you render useless the only enforcement mechanism for the fourth ammendment.

Not to mention the deception. In order to use parallel construction, the police need to make up a story about why they began investigating. By definition, parallel construction means that they will lie in court about this.

The courts really need to wake up, or they will continue to be impotent lackeys of the executive branch.

optforfon4• 10 years ago

Right but the "made up story" has to be legally sound. Like they have to put a police officer at the right place at the right time. How is that a bad thing?

Like you can still have information so private that you can't build a parallel construction - right?

rcthompson• 10 years ago

Suppose that instead of the secret cell phone tracker evidence and the parallel construction, it was an undercover witness and a random bystander witness. Instead of having the undercover officer testify in court and thereby reveal themselves, the cops instead use the undercover witness's information to locate the bystander (e.g. the undercover witness remembered seeing the bystander and gave the police his description to help them find the bystander), and they have the bystander testify in court instead of the undercover witness, and they never say at the trial how they found this witness. Are the police allowed to do this? Should they be? If they are, is it any different from "parallel construction"starting from secret cell phone evidence instead of secret witness testimony? (I'm genuinely curious. I don't know the answers to any of these questions.)

Edit: I guess in order to make the analogy more accurate, I would have to specify that the undercover agent knows they did something illegal that would make their own testimony inadmissible as evidence, and this is the motivation for finding the bystander.

jonathankoren7• 10 years ago

I guess you could do that. The key difference between this and the Stingray parallel construction is that the random bystander is a legitimate witness with no connection to the police. Now if the police called up some friend and said, "Hey, I meet me on the corner of blah and blah at noon tomorrow, knowing that a crime was going was going to take place there and then, then that's something else.

FBI Told Cops to Recreate Evidence from Secret Cell-Phone Trackers

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