Hacker News Reader

Comment by Karunamon | Hacker News Reader

I wonder what was the genesis of this policy change? From a legal standpoint, they were untouchable with the whole "parallel construction" thing.

This has the potential to get the whole program killed. Did someone in charge with both the clout and the morality to do the right thing take a risk? Some other reason? This fascinates me.

View on HN

"Parallel construction" requires investigators to discover independent probable cause or an arrestable offense by the target; it refers to the use of surveillance information to be "at the right place at the right time", but is not a generic mechanism that transforms surveillance intelligence into admissible evidence.

Perhaps it was when the Solicitor General lied to the Supreme Court? As he/his office has to appear there often it behooves him to maintain a good relationship with the court.

It seems like the Solicitor General made his case to the Supreme Court, claiming defendants would be notified. Fast forward to recently, Dianne Feinstein goes and tells a reporter that yes, we've used evidence from a warrantless wiretap in this particular case. That guy's lawyer responds with the legal version of "wait, what?", the Solicitor General realizes that he (unknowingly?) lied to the Supreme Court, throws a fit (because you don't lie to the Supreme Court), Justice orders prosecutors to start revealing when such evidence is used, and now guy is mounting a legal challenge and ACLU/EFF/EPIC are going after the original case, wherein the Solicitor General (knowingly?) lied to the Supreme Court.

http://www.techdirt.com/articles/20130716/01513323814/

http://www.techdirt.com/articles/20131017/18381624923/

https://www.eff.org/deeplinks/2013/10/when-will-government-o...

the Solicitor General realizes that he (unknowingly?) lied to the Supreme Court

From the article:

After reading the article, Mr. Verrilli sought an explanation from the National Security Division, whose lawyers had vetted his briefs and helped him practice for his arguments, according to officials with knowledge of the internal deliberations. It was only then that he learned of the division’s practice of narrowly interpreting its need to notify defendants of evidence “derived from” warrantless wiretapping.

There ensued a wider debate throughout June and July...

The timing seems a co-incidence with the Snowden leaks on parallel construction.

> From a legal standpoint, they were untouchable with the whole "parallel construction" thing.

Where's the test case for parallel construction? Without some case law, I could easily imagine a federal court taking a dim view of this legal theory.

The entire point of parallel construction is that no court will ever know it was used in a case, so there is never a case in which it can be challenged, making it and the surveillance used untouchable by courts.

My guess is that the defendant covered his tracks well, so the DoJ couldn't come up with a parallel construction in this case, and felt, based on the wiretap, that this guy was dangerous enough to risk the whole program on.

I hope the challenge is successful, and that they can eventually use legal means to nail this guy later. :\

Reply on news.ycombinator.com