Lawyers eye NSA data as treasure trove for evidence in murder, divorce cases | Hacker News Reader

Lawyers eye NSA data as treasure trove for evidence in murder, divorce cases

redtape.nbcnews.com

107 pointsllambda37 comments

From "it's only to catch terrorists, guys" to potentially "it's also used to prove guilt in minor domestic cases."

I, for one, hope this succeeds. Maybe then we'll have a way to get the masses to understand just how bad this surveillance state really is, for all of us.

It's only a matter of time until this data is used for political means (see the recent IRS story). All it will take is someone coming into power that threatens the agency or its valued partners in any way. Then out comes the embarrassing tweets or tax evasion evidence pulled from Amazon. This will only become more easy as the young people of today become the Senators and Presidential candidates of tomorrow.

"Out comes the blackmail" is an optimistic scenario. More likely, it's quietly made known that they have such information, and magically, their position changes - with the public none the wiser.

Pretty much describes J Edgar Hoover's career. And why, once the Mob got dirt on him, they were free to do as they pleased with no FBI interference.

"Regretfully stepping down to engage with my wonderful family."

You nailed it: they could start out by taking out some child pornographers, money launderers, corrupt congressmen, senators, judges and mayors. Then move on to Democrats, Republicans, Libertarians, members of the press, uppity hackers like Aaron Schwartz, et al.

But wait there is more,

How about some ambitious sys admin from Booz Allen or otherwise sell the information to HR departments, the Enquirer, The Daily Mail, Goldman Sacks, the Chinese, the Russians, or start his own "protection business"?

</sarcasm>

I'd be beyond shocked if this wasn't already happening. I suspect one or two "discoveries" (e.g. a mayor smoking crack with a prostitute) were probably really from one of these sources and everyone else is simply shown what is out there on them and they avoid rocking the boat.

You know, it could wind up being good. Isn't one of our most basic tenants to do our damndest to avoid convicting the innocent, even at the cost of letting some guilty go free? If it succeeds, we could potentially see even better exoneration numbers for the innocent, and I'm not certain how to weight that against my privacy.

If we felt that the accuracy of the justice system trumped all privacy concerns, then we could have voluntarily adopted such systems years ago after honest plain public discussion.

We didn't.

Did that discussion actually happen yet? Maybe I missed it.

Some sort of discussion got us the 4th amendment.

That is my point...

Well then maybe now is the time for that discussion?

You can have it whenever you like, but such a decision cannot be made retroactively. If we as a society decide that we want to make that tradeoff, then we can only make it going forward. Those who do not consent to such an invasion of privacy must be given fair warning. For the majority to retroactively strip privacy would be tyrannical. I should not have to explain why.

No one is looking for the truth, but rather results. If the phone records, email and so on prove the person is innocent, that data simply won't be used unless they also find an even better candidate for conviction.

Remember "Wired", the Bob Woodward biography of John Belushi? Many who knew Belushi were outraged that it was not an accurate depiction.

In a fascinating Slate article (http://slate.me/Y6ZQqd) Tanner Colby describes the experience of re-reporting the Belushi story "page by page and source by source".

Colby was surprised to find that, broadly, Woodward's book didn't contain outright falsehoods. Woodward just put the facts through a narrative filter that left out important context. What's left is a distorted picture of a person that, while factually accurate, doesn't reflect reality.

Colby: "I say it’s like someone wrote a biography of Michael Jordan in which all the stats and scores are correct, but you come away with the impression that Michael Jordan wasn’t very good at playing basketball."

In the wake of the NSA story, it is chilling to consider what kind of distortions could be created. The Belushi biography was mainly based on interviews. What narratives might be spun from years of calls, emails, and web analytics?

the problem is that the general public will still think the surveillance state is okay because it puts "bad people" behind bars. this would not work unless it starts being used to indite innocent people, who can then prove their innocence. unfortunately the general public still would not care more than 1-2 weeks after the case first breaks.

If I were on the jury, I would seek to nullify the jury for every single case where the NSA refuses to provide the defense with the information they want or where the prosecution uses NSA data to prove guilt.

The former because that data shouldn't be a one way street and the latter because the NSA shouldn't have that data in the first place.

A bigger concern will be that "Lawyers" will realize that the NSA data came from internet companies and ISPs, and these companies often still have that data.

There is no national security shield for that data....

"Lawyers" just need an enterprising startup to build a private version of PRISM to do analysis and reporting on the data they extract from the companies via court orders.

OTOH, my understanding is that the defence has a special right to this data in criminal cases if the NSA has it because that means "the prosecutor" (ie, the government) has the data.

"The NSA is not above the law. It's a government agency, just like every other government agency. Just because it has this Harry Potter-like disappearing cloak, it's still an agency that is subject to the law"

Call me cynical, but I'm yet to be convinced that is the case at all.

This reminds me of a facebook status update:

You character is only as good a your browsing history

I am not worried about lawyers using these logs for evidence, I am more concerned about other government agencies doing so. Its not like the IRS isn't bad enough as it is.

Of course it could be just as much fun when employers demand access to this data. Soon we will get a Citizens Privacy Bill of Rights which will protect us from no one and codify the government's rights to continue as is.

I'm more concerned over people buying this data from disgruntled or otherwise compromised NSA employees or anyone else they hand the data to (like contractors) to use for blackmail or other criminal enterprises.

I really don't get any of this.

These lawyers and courts are no more privileged to secret data from the NSA, the military, or any of the other classified source today, then they were 1 year ago, 10 years ago, etc.

"The laws of evidence require that prosecutors turn over to the defense any records they have that might help prove a suspect's innocence."

In other words, they were entitled to them 10 years ago, but now that they know they exist they can actually request them.

Those courts and prosecutors have no access to classified datastores of the NSA.

That data is classified and protected by law.

What you are quoting is completely something else, and just references the data the prosecutors have on hand that is gathered and developed as part of the investigation.

> That data is classified and protected by law.

The defense team doesn't need the data, they only need to show that the government has data that it's withholding.

> What you are quoting is completely something else, and just references the data the prosecutors have on hand that is gathered and developed as part of the investigation.

IANAL, but Solove is arguably the nation's top privacy law expert (along with Jeffrey Rosen, who is a professor at the same university) so I'm assuming he knows his stuff.

The data is classified and protected by law, yes, but there are other equally (or more important) laws that say the government is required to hand over all potentially exculpatory evidence to the defendant.

Which law trumps? That's for the courts to decide.

Can't why to see Scalia argue as to why the government needs to put to death people it knows are innocent.

The clever tactic here is that it may not matter if they gain access to the records or not. That's less important than it seems. All they have to do is plant a seed of doubt in the jurors.

That's the step that's going to make this all rather crazy. I could claim my classified phone records put me on the other side of the country, whether it's true or false. It'll still create that doubt, and the gov't will deny the records exist either way.

Only the executive branch is entitled to this data, right?

You have a point. However, the game has changed. Defense attorneys will allege that reasonable doubt could be shown if only they could present as evidence the NSA data most people believe exists. Juries will more likely find for the defendant, then. Or the prosecutors will claim the opposite. The turmoil in courtrooms will fuel a groundswell of support for declassifying the NSA data.

The data was collected without a warrant. It cannot be used in court.

IANAL, but I believe the "fruit of the poisoned tree" doctrine only ties the hands of the State in criminal proceedings. The defense can put forth any evidence or argument at all, provided it's in good faith, and not knowingly false.

The defense doesn't challenge a lack of warrant for data that benefits them.

No warrant doesn't matter, the data can be used in court. The Guardian's leak today [1] proved that the NSA is authorized to keep all data obtained 'inadvertently' -- e.g. as part of a broad-scale tap, without a warrant -- and to use it later. Specifically, data regarding US citizens.

The safest assumption now is that with respect to electronic surveillance in the US, warrants mean nothing and everything is being stored.

[1] - http://www.guardian.co.uk/world/2013/jun/20/fisa-court-nsa-w...

IANAL but as I understand it, they need a FISA or regular federal search warrant if the data is collected for a "criminal investigation", but do not need a warrant if it was previously collected under a national security program. In a criminal case, they have up to 72 hours to get a warrant, if they give an actual wiretap order.

This may be different in a "national security" investigation, where the PATRIOT Act is involved.

Is the defendant bound by that rule?

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