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.
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.
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.
Except that that isnt and has never been how the law is actually applied.
Federal laws are so numerous and complicated that even the federal government cannot NUMBER them. they literally can't even count them all. You and everyone else in this country is guilty of many of them.
but hey, if they decide to go after you for some reason, and bring you up on federal charges, please let me know how it goes in court accusing the judge and the prosecutor of "must have done something wrong too"
> Federal laws are so numerous and complicated that even the federal government cannot NUMBER them. they literally can't even count them all.
This is just a meaningless thing to say. The reason for the difficulty in answering is because the question ("how many laws are there") is flawed because it implies a static number. Some rules are temporary (e.g.: a safety zone around a small area for X hours while underwater explosives are used for dredging from June Y-Z). They receive temporary CFR citations that start with T and they expire when they are no longer in effect.
The number changes, it's not "uncountable" -- this meme needs to die.
Oh by the way, these are also by and large submitted to the Federal Register for people to have a chance to read and submit comments and request public meetings.
> Oh by the way, these are also by and large submitted to the Federal Register for people to have a chance to read and submit comments and request public meetings.
How realistic is it for a normal person, with a full-time job, perhaps a family, to keep track of every relevant Federal Register submission which may affect them?
Should they be keeping track of all newly-passed (and rescinded) laws, as well?
--
On a separate note, I wonder what the result would be of a legal system in which all laws have a mandatory expiry, and must be re-ratified/voted on to remain applicable. The period would have to be long, but not too long (somewhere 10-20 years maybe?) so as not to backlog, but even that might be a benefit in keeping the number of laws from growing too fast.
The biggest problems I can imagine is prosecution of subsequently expired laws, and how legal precedent could work, when it might have been made based on a wording different to the current.
> Should they be keeping track of all newly-passed (and rescinded) laws, as well?
Largely, no, because it would be a spectacular waste of their time. Why? Because the regulations are usually microscopically focused on class of actors that (a) know they exist, and (b) have a vested interest in staying current.
Moxie Marlinspike's example of the undersized lobster rule is especially telling in how it goes against the very point he was attempting to make. On the enforcement side, this particular regulation likely affects fewer than 10,000 people in the entire country -- that is, people fishing commercially for lobsters. The public interest it serves is that fisheries are subject to the tragedy of the commons[1], and must be regulated to preserve these public goods. It's basically the equivalent of that little tag on your mattress that says "ILLEGAL TO RESELL" -- people joke about getting arrested for this. No, it's targeted at the vanishingly small number of people that sell mattresses commercially.
EDIT: Also, just a note -- laws are passed by Congress. Regulations are promulgated by agencies that have been delegated some task or authority from Congress ("we don't have time to draft/debate/vote on every little piece of trivia regarding airplane part advisories or what plants are on the invasive species list or what next year's technical specifications for automobile safety are -- FAA, USDA, NTSB, you guys have the experts and scientists, so here's your authority, now go and figure out the details and make it happen")
I understood the point he was making to be that under a strict interpretation of the law/regulation in question, there is no flexibility around whether you have it because you're intentionally harvesting undersize stock, or whether it was thrown at you from a passing car as you walk home. If the act of possession is illegal, then the rest of the circumstances are irrelevant.
Of course, any reasonable court would/should dismiss this, even in the unlikely instance that someone would decide to prosecute, but the problem is that is a dangerous thing to rely on. And if it were recorded by not prosecuted, it's now a liability that can be used against you for other reasons, until the statute of limitations applies.
If the law prohibited selling, or possession in a commercial context (large lobstering boat, etc), it would be reasonable. The damage to lobster stocks is likely[1] due to the large commercial concerns, rather than individuals catching small numbers for personal consumption.
Likewise for the 'it's targeted at the vanishingly small number [...]'. If the law isn't specifically targeted at them, why not? One good reason would be the creation of loopholes that allow it to be broken without penalty, but if the alternative is allowing perfectly normal activities to bear the possibility of prosecution, subject to the whims of the legal system, I think I'd be in favour of being precise.
I don't think GP was arguing that it would make for an actual legal defense, but instead that when the same light is shone on everyone's activities, it becomes much harder to single out individuals.
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?
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.
Sounds very Illuminati to me. (Oh yeah. I went there.)
I don't think it's that easy, though. China seems, at least to me, as a very divided nation. They can't keep it up forever, I mean - something's gotta give at some point.
It "gives" quite frequently, and between the size of the system, and some policies therein, it can absorb a significant amount of "give". There are actually hundreds of protests each day. State media control is of course the largest reason you don't hear about them often, but far from the only factor.
When discussing China from a Western perspective, and not simply using "culture and history" as a catch-all/cop-out for differences, I would say two points need to be kept closely in mind: Scale and Paranoia.
No Western country operates at "China Scale". Entire societal functions operate less efficiently, or break down entirely, when you reach a certain size. You often hear bewildered statements, wondering "Why China does X instead of Y?", where X is an unsustainable notion for them. Sort of like how on HN we talk about "Facebook Scale" or "Twitter Scale" to emphasize sets of problems that most other companies don't have, and likely never will.
But size lends something else: Momentum. Things will continue forward tomorrow in a manner similar to today, if only because it would take a huge exertion of effort to change it. And in this case, 500 protests per day with a few dozen people each is not a huge exertion of effort relative to the population.
As for paranoia, I'm sure some of China's leaders agree with your "They can't keep it up forever" statement (at a national level--local is a different matter). They worry about this regularly and it colors much of what they do. Does a US Senator wake up in the morning and ask themselves "Is today the day that everyone decides democracy is a terrible idea? Is today the day it all crashes down?" Of course not. But many of China's leaders worry for their system.
Of course that paranoia is probably of a different flavor now than 20 years ago. China's economic success and continued upward trajectory has to help some leaders sleep easier at night.
As for the Illuminati: Please don't go there. It never helps.
I can't think of an instance of an economy "collapsing under its own weight." China might run into issues with currency manipulation, but aside from that they will be most stable so long as they keep growing at a fast clip. The problems will start to appear when growth slows or stalls, and people no longer see their lives or children's lives getting better (e.g. the Arab Spring)
There's the signs of an early housing crisis (i.e lots of apartments being built, but nobody's buying). Entires cities stands empty, without occupation. That seems a bit like an economy that's heaving trouble maintaining itself.
Ah so you're saying the government pumping up economic growth artificially won't be able to continue indefinitely. I'd agree: organic economic growth can't cause economic collapse (unless there are serious infrastructure issues) but artificial growth certainly can.
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.
>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.
That's not completely true. I was on a jury once, about two years ago, and during the voir dire I admitted to having been arrested before, but pointed out that the charges were later dropped. Now, if you get arrested, but they drop the charges when you go to court, that implies that somebody in the system - possibly a cop - made a mistake. But the prosecutor didn't bounce me, and I wound up jury foreman.
That was actually a really interesting experience. I've been meaning to write it up, but haven't taken the time to do it yet. I wish I'd done it sooner when the details were more fresh in my mind, but I think I still should at some point.
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.
There's no need to alter the data, they can just leverage something small against you, to go after someone else in your social circle. And so on, and so forth.
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?
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.
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.
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’
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.
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.
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.
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?
Sadly I don't think so. I believe in that case it was certain that documents did exist and one party was just refusing to produce them. In this case, the NSA is neither prosecution nor defense, and therefore doesn't have the same disclosure requirements. Further, there's no proof the NSA has such records. But, like most people in this thread, I am not a lawyer.
Actually, 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.
An impartial and independent team of observers is a good idea. It's hard to find impartial and independent observers. Another good choice is a large consortium of advocates for stakeholders.
If only we had a body of hundreds of people, chosen by citizens across the country charged with representing their interests and empowered to set the rules and budget for any such program. We could supplement that body with oversight from learned scholars; we can give them lifetime tenure in hopes that they'll remain impartial and give them the ability to find rules and actions inconsistent with fundamental principles.
"The only way to get around this is to open up the NSA to an independent team of international cyber experts from the UN."
The UN is a powerless organization. Nations will always act in their own self-interests, and the power-players of the UN will ignore any efforts to intrude upon that authority if they can argue that it weakens national security.
Because its not the US and not a specific foreign state.
I know Americans hate the UN, to socialist and dares to criticise the US, but for non Americans it's the closest thing to an authority that they can at least try to believe in as independent. We all trust the UN weapons inspectors, yes? Well, not GW Bush on a war path, true, but the rest of us?
So how about UN Data Inspectors?
Do Americans really believe the rest of the planet even slightly trusts the US government? No. So the UN would be the best bet. Unless the US is prepared to be audited by, say, the French.
B5 fans will understand that the US is nicely represented to many by Mr Morden. Nice hair, nice suit, winning smile, all the right words.... surrounded by shadows.
Americans hate the UN? The US subsidizes roughly 75% of the cost of the UN. That should emphasize the US commitment to the UN and international community.
It may be fair to say Americans are skeptical about relinquishing State Sovereignty, such as the US refusal to sign the Rome Statute and come under the jurisdiction of the International Criminal Court, but most Americans would agree the UN is of great importance to the World.
>Do Americans really believe the rest of the planet even slightly trusts the US government? No
I think if you took a poll at any given time a majority of Americans would not trust their own government. American history teaches us to have a healthy skepticism for government. That skepticism would certainly extend to the UN, whereas at least the US is a democracy, in all its imperfection, which includes terms limits and elections, it only makes sense to be skeptical of relinquishing sovereignty to a UN that includes States represented by authoritarian and repressive regimes.
Let's say the inspectors would come from the countries represented in the Security Council. Would you really believe that Russians or Chinese would appoint truly impartial inspectors with no agenda?
Frankly, as bad as this whole situation sounds, I trust the US government far more than Russia or China.
Because officially these phone records don't exist and acknowledging their existence is a confession that everything Snowden alledges is actually true.
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.
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?
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.
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.
In legal terminology to "prove" something doesn't "indicate the truth" about something? sorry, maybe I'm confused, I guess I don't know legal lingo or am misunderstanding.
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...
The 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.
My 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...
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.
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".
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.
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.
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.
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.
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.
I 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.
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.
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.
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.
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."
I really hope that they tried to get the records through a court request to the right people rather then just calling the company and asking for it. I find it really unlikely that such records don't exist anymore. Phone call billing is the one thing that brings money to telcos and they're often processed and analysed. They may not be exposed to public, but not keeping a backup of them stored at least on some tapes somewhere for years is really surprising...
The 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.
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.
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.
> 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.
I wonder if the PRISM revelations might give defense attorneys a broad strategy to deal with inconvenient evidence: "the government was illegally intercepting my client's communications; they never would have found the {cocaine|bodies|plutonium} without these illegal intercepts, thus all evidence against my client flows from this tainted knowledge and he must go free."
That wouldn't work, because the defense has the burden of arguing that the evidence is tainted. Case law merely states that the tainted evidence will get excluded and that the defense must be given the opportunity to argue that the evidence is tainted.
Also, let's be clear, and stop saying "the government". Let's say "the NSA" is doing the wiretap. Then we can talk about "state prosecutors" or "federal prosecutors", and talk about how those prosecutors ended up with evidence obtained by tainted means.
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?
Suppose that Alice has two kilos of Cocaine in her refrigerator, and then she breaks into Best Buy and steals a 72" TV. She gets caught on camera, but they're not sure it's her, so the police get a warrant to search her house. One officer goes into the attic and finds a 72" TV... bingo, she's gonna get convicted.
But another officer was in the kitchen, and found the Cocaine. No conviction. It's a legal search since they have a warrant, but the police can't use the Cocaine in the fridge as evidence, because they have a warrant to find a 72" TV. The fridge is too small for a 72" TV, so the police can't look in the fridge, and they can't use anything they find in the fridge as evidence.
Alice gets busted for stealing a 72" TV, but the conviction for Cocaine gets thrown out.
So, back to the wiretaps. Just because a wiretap is legal doesn't mean that all the evidence you get from a wiretap will be admissible as evidence.
Second, calling the wiretaps legal does not make them so. The courts might declare that they're illegal without a warrant.
Third, it's the executive branch that calls the wiretaps legal. We should be at least this specific. The executive branch can claim PRISM is legal, but only the judicial branch has the power to actually decide on the legality.
The article says that drugs were found during the execution of a warrant, it doesn't say what the warrant was for or how the drugs were found during the execution of the warrant. You can find evidence for other crimes when you execute a warrant, you just can't look it if it's outside the scope of the warrant.
Also, even if the warrant was overbroad, the evidence wouldn't get thrown out as fruit of the tainted tree, because a bad decision by a judge (e.g. grant a bad warrant) won't cause the evidence to become tainted in that way. You can exclude evidence because the police broke the law, but the judge isn't breaking the law just by interpreting it poorly. Or put another way, we don't want the police to have second-guess judges' decisions.
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.
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?
I am no legal expert, but the purpose of the exclusionary rule is to discourage police from illegally gathering evidence, not to provide relief. See WARDEN v. HAYDEN, 387 U.S. 294 (1967)
> Just as the suppression of evidence does not require the return of such items as contraband, the introduction of "mere evidence" does not entitle the State to its retention if it is being wrongfully withheld. Pp. 307-308.
So just because the cocaine can't be used as evidence, doesn't mean that the police have to give it back -- it's still contraband. Maybe they would destroy it if they have no other use for it. But Alice would get her car back, if it were seized with the cocaine.
As for future prosecution, nobody is exempt, but the prosecution would probably have to come up with new charges (due the fifth amendment double jeopardy clause). Waiting a few weeks would not change legal circumstances and a judge would see right through such trickery, but if I were Alice or Bob I would keep my nose clean for a while.
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.
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?
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.
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.
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.
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.
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.