Bank robbery suspect wants NSA phone records for his defense

http://www.sun-sentinel.com/news/local/crime/fl-phone-records-fisa-broward-20130612,0,5434900.story

by pain_perdu • 13 years ago

506 126 13 years ago

visarga4• 13 years ago

This 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?

drivebyacct24• 13 years ago

More like, withholding evidence! Think about it. That metadata could very plausibly confirm or deny alibis (or at least help confirm/deny maybe).

devcpp• 13 years ago

Is 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...

HelpfulBot• 13 years ago

The phrase "confirm or deny" is used when someone knows the truth of a matter but might be inclined to lie about it (deny it). In the case of data that might indicate the truth of an allegation, the phrase you are looking for is "prove or disprove" or perhaps "validate or invalidate" or "support or discredit". Data itself cannot "deny" anything.

zachkatz• 13 years ago

It seems like the situation is notable because the court case in the article is much less clear-cut than most cases, where the defense attorneys wouldn't need to go to such lengths.

mbillie1• 13 years ago

It 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• 13 years ago

If 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• 13 years ago

The 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.

josephagoss• 13 years ago

The 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• 13 years ago

In 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• 13 years ago

In 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.

dietrichepp6• 13 years ago

Just 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_• 13 years ago

Very 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.

cup• 13 years ago

In such a hypothetical scenario would the police then be required to return the cocaine? Furthermore, would the owners of the cocaine be expemt from future prosecution. I mean, whats stopping the police from tailing them and waiting a few weeks before re-arresting them?

pilif• 13 years ago

But. Isn't the government asserting that the wiretaps are legal? If so, any evidence acquired through them would be valid evidence in court. Wouldn't it?

mariusz3313• 13 years ago

I don't suppose Dan can keep the dope..

Dylan16807• 13 years ago

Are you sure about your scenario? Dan never actually used the illegal evidence to violate any rights. If he had gotten a warrant based on the wiretap it would be different and the fruit of the poisonous tree would apply. But Dan just hung out at a specific street corner. The fourth amendment was never relevant to the drug bust.

lifeisstillgood3• 13 years ago

And 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• 13 years ago

Does this gives Bowman another chance to appeal against Monsanto, in the Biotechnology suit?

mtgx• 13 years ago

Before we do that, let's establish, out in the open, that these laws are Constitutional. The Constitution still matters - right?

aggronn• 13 years ago

Honestly, if total surveillance is constitutional, you have to figure the constitution isn't really that good.

inthewind2• 13 years ago

If 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

Hot air from the Tories in 2010:

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.

seabee• 13 years ago

Re: missing CCTV, aren't you thinking of the death of Jean Charles de Menezes two weeks after 7/7?

chris_mahan• 13 years ago

I think perhaps this would lead to having a Constitutional amendment banning the government from watching what the American public does. Oh wait...

achille• 13 years ago

21 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

People erroneously tortured by the govt had their cases thrown out. Cases as low as bank robbery have zero chance.

icambron2• 13 years ago

I'm not so sure. In what way are this guy's phone records a state secret?

fletchowns• 13 years ago

I'd say it's because they are part of a top secret government program

Confusion• 13 years ago

Because officially these phone records don't exist and acknowledging their existence is a confession that everything Snowden alledges is actually true.

Tuna-Fish• 13 years ago

The difference is that the tortured guy was suing the government, while this bank robber is being sued by the government. As it's a criminal case, the standard of proof is on his side. So, it's not necessary for there to be proof that he's innocent, all he needs to do is to create a little bit of doubt.

He's probably hoping that the government doesn't release records, as this could possibly be enough to free him.

TomAnthony• 13 years ago

Indeed, in the United States vs Reynolds Supreme Court case that seems to be considered the seminal [1] to establish the State's Secret Privilege:

  The district court rejected the formal claim and ordered the documents
  be produced; but, the government refused and the court entered final
  judgment for plaintiffs on the grounds that the refusal to produce the
  documents established the Air Force’s negligence.

It seems the same logic could potentially apply here?

[1] http://law.lclark.edu/live/files/9577-lcb111lyonspdf

scotty793• 13 years ago

That'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.

babby• 13 years ago

But 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.

scotty793• 13 years ago

I think it will eventually evolve into a system where everyone has access to everything, but it might take a generation or two. Intersting times.

mariusz3313• 13 years ago

It seems like you get no joy from bending the rules. Maybe it just makes me feel young.

willvarfar3• 13 years ago

If 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• 13 years ago

That sounds like it would increase identity theft a lot.

paulsutter• 13 years ago

His 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.

mariusz3313• 13 years ago

I think a lot people who are for surveillance assume those records may help them one day. Yea they have nothing to hide, but they have nothing to protect them in return.

visarga4• 13 years ago

And no way to protect themselves against tampered surveillance data.

msravi• 13 years ago

But 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• 13 years 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

visarga4• 13 years ago

Trying 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?

monkeypizza• 13 years ago

This is what's happening in China now. They've had the great firewall for 10 years - what's happening since then has been further development of ways to manage what people think. So they allow weibo, etc. to work, and are figuring out how to control the message.

By controlling a few birds at the right moment, you can control where the whole flock goes, and it still thinks it's free.

locusm• 13 years ago

The pace at which the Orwellian behaviours are coming to life is quite astounding.

e3pi2• 13 years ago

- it could fall in the hands of Mitch Mcconnell, John Bohner, and ...James Baker!

Shivetya• 13 years ago

Reading the case I am trying to understand why he needs them? The prosecutor is attempting, with the help of the FBI, to put these guys in the area of the robbery with cell phone records.

They don't have his records, hence they must be operating only on the testimony of the person they have already jailed which should be suspect regardless.

So why should the prosecution get a free pass, if they are using cell phone records to prosecute the the other men but don't have any to tie Brown to the area they should be able to just assume his guilt. Its not like Brown lost the records. Apparently he is being prosecuted for not having a phone they could trace.

EvilLook• 13 years ago

So why should the prosecution get a free pass, if they are using cell phone records to prosecute the the other men but don't have any to tie Brown to the area they should be able to just assume his guilt.

Welcome to America where you are not allowed on a jury if you even hint that police officers are human and therefore capable of error or dishonesty.

clarkevans• 13 years ago

From this perspective, "if you're not doing anything illegal, you have nothing to fear" isn't half daft; fear is not in the activities themselves, but, rather in the State's asymmetric access to recorded public history: they get to selectively choose what part of this history is presented during prosecution, while its Citizens are forbidden access and a chance for an equitable defence.

If there's a world where all these interactions are truly not subject to privacy protections... why not remove the illusion privacy entirely and have it a publicly accessible dragnet? Or, at least, provide full access to the dragnet machine to public defenders.

dharmach• 13 years ago

Agree. I do not mind surveillance so far it is applied to all - bar none, and all the data is available to everyone. When police and judge label me sinner, I should be able to see how saintly they have been and only those who never sinned can throw stone at me.

redthrowaway• 13 years ago

If the prosecutor is smart, they'll simply file a FOIA request and when the NSA replies that it doesn't have the requested records, they'll simply enter the NSA's response into evidence.

616c• 13 years ago

How 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

I also recall Saddam doing similar things in his trial. Is there not a name for this type of failed legal tactic?

gambiting• 13 years ago

He 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_cx2• 13 years ago

The victims are or were foreigners, and not Americans. Apparently that makes a difference.

redblacktree• 13 years ago

It 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• 13 years ago

Elsewhere on the Internet :) http://i.imgur.com/VGaCBrl.png

pseingatl• 13 years ago

This 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.

roboneal3• 13 years ago

Is 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• 13 years ago

If this was not a stunt, the lawyer would have just asked the phone company for their records.

ignostic3• 13 years ago

I 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• 13 years ago

This 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.

ignostic3• 13 years ago

Yes, this is one of the main problems I see with the NSA.

roboneal3• 13 years ago

Apparently, even the NSA has a FOIA process:

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.

robomartin2• 13 years ago

Some 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• 13 years ago

That 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-Tr...

robomartin2• 13 years ago

What happened to that police officer should have triggered mass firings and jail sentences. Every time I post a comment on HN speaking negatively of unionized government organizations I get mercilessly down-voted. I don't know if this is because there are a bunch of union thugs reading HN (doubt it) or brainwashed liberals who support unions out of pure indoctrination and without much thought. The truth is that these organizations are nasty animals with unprecedented reach, power, rights and immunity. They almost operate under their own laws and it is nearly impossible to go up against them. Case in point, bad teachers ought to be fired mercilessly without pension and those who abuse children should suffer the same fate. There was a case here in Los Angeles of a teacher who sprinkled cookies with --don't barf-- his own semen and fed them to the kids. The teacher's union actually protected this animal's rights for as long as they could. If the teacher's union is that ugly, imagine what police unions and even non-unionized government groups must be like.

e3pi2• 13 years ago

This 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.

cLeEOGPw• 13 years ago

I 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.

Bank robbery suspect wants NSA phone records for his defense

Related Stories