Feds May Have To Reveal FISA Phone Records In Murder Case

from the well-this-interesting dept

Thu, Jun 13th 2013 7:09am — Mike Masnick

There's been a lot of focus elsewhere concerning the FISA rulings that were leaked, showing that the government is scooping up the details of pretty much every phone call. However, a case concerning some guys who were trying to rob an armored truck may lead to some interesting revelations related to what the government collects. Daryl Davis, Hasam Williams, Terrance Brown, Toriano Johnson, and Joseph K. Simmons were charged with trying to rob a bunch of armored Brink's trucks, in which one of the robberies went wrong and a Brink's employee was shot and killed. As part of the case against the group, the DOJ obtained call records. However, during discovery, the government refused to hand over call records for July of 2010, claiming that when they sought them from the telco, the DOJ was told that those records had been purged. Terrance Brown's lawyer is now claiming that since it appears the NSA has sucked up all of this data for quite some time, it would appear that the government should, in fact, already have the phone records from July 2010, which he argues would show that he was nowhere near the robbery when it happened.

Defendant Brown urges that the records are important to his defense because cell-site records could be used to show that Brown was not in the vicinity of the attempted robbery that allegedly occurred in July 2010. And, relying on a June 5, 2013, Guardian newspaper article that published a FISA Court order relating to cellular telephone data collected by Verizon,1 Defendant Brown now suggests that the Government likely actually does possess the metadata relating to telephone calls made in July 2010 from the two numbers attributed to Defendant Brown.

The court agrees that, under the law, the government may need to produce those records.

Here, Defendant asserts that, under Brady v. Maryland, 373 U.S. 83 (1963), due process requires the production of the July 2010 telephone records because they are anticipated to be exculpatory in that they are expected to show that Defendant Brown was not physically located at the scene of the alleged attempted Brink’s truck robbery in July 2010.

In view of Defendant Brown’s Motion and the requirements of FISA, it is hereby ORDERED and ADJUDGED that the Government shall respond to Defendant Brown’s Motion and, if desired, shall file an affidavit of the Attorney General of the United States.

That order was actually issued Monday, only giving the government until yesterday to comply. At the time of posting, the government's reply has not yet shown up in PACER, though it may pop up soon. I'm guessing that they'll try to either get some sort of extension or explain why those records are somehow inaccessible -- but it could get interesting.

147116286 Order Requiring Response Re FISA Records (PDF)147116286 Order Requiring Response Re FISA Records (Text)

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Filed Under: criminal cases, discovery, doj, nsa, nsa surveillance, phone records, terrance brown

42 Comments

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Anonymous Coward, 13 Jun 2013 @ 7:15am

So, the government has citizens under surveillance, but when the records are actually needed, the government is unable or unwilling to release them?

And you still think they do it to keep you safe?
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- Anonymous Coward, 13 Jun 2013 @ 10:45am
  
  Re:
  The meta data records collected by the NSA will never be used in an exculpatory fashion for any defendant accused in a court of law for a crime in these United States.
  [ link to this | view in chronology ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 13 Jun 2013 @ 7:22am

Feed those little babies some milk, Mikey: https://www.youtube.com/watch?v=e2uhtRhQ4mw
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- Anonymous Coward, 13 Jun 2013 @ 7:44am
  
  Re:
  After Prenda I'm sick of popcorn.
  Cookies are a delicious alternative and everyone knows what cookies go best with.
  I welcome more NSA stories.
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- martyburns (profile), 13 Jun 2013 @ 9:14am
  
  Re:
  I really don't understand you.
  
  This site is called TechDirt. The stories on the NSA spying are EXACTLY what this site should talk about.
  
  You complain that most of the time this site talks about unrelated things and as soon as some Dirt is dug up relating to Tech you hassle it for discussing it.
  
  Piss Off.
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Pragmatic, 13 Jun 2013 @ 7:22am

However, during discovery, the government refused to hand over call records for July of 2010, claiming that when they sought them from the telco, the DOJ was told that those records had been purged.

If they're demonstrably not using the captured data to protect us from actual criminals, what on earth are they doing with it?
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- Jack Bendlecott (profile), 13 Jun 2013 @ 7:57am
  
  Re:
  They're doing it for the same reason the Stasi did it: to protect the state from the people.
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This comment has been flagged by the community. Click here to show it

out_of_the_blue, 13 Jun 2013 @ 7:28am

Now imagine MPAA getting Google's log of your history!
I'm going for the meta-view, not Mere Mike's "interesting" in this one case: As I've mentioned, Google runs the captcha for files downloaded from at least Depositfiles -- yeah, I ought to do the work to survey more sites so you pirates are better warned -- and that's enough probable cause to raid your house.

So while perhaps exculpatory here, the far more common use of Google/Verizon/NSA data will be INculpatory.

And yet you kids can't see why I rail about ALL computerized surveillance including Google's! I'm actually on your side in being against Google ratting you out.
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- Anonymous Coward, 13 Jun 2013 @ 7:33am
  
  Re: Now imagine MPAA getting Google's log of your history!
  If the MPAA ever gets my search history, and they are foolish enough to look through the sites, they'll be too busy scooping their eyes out with a spoon to sue me.
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  - Anonymous Coward, 13 Jun 2013 @ 7:49am
    
    Re: Re: Now imagine MPAA getting Google's log of your history!
    A 4chan user I see? Well played, sir.
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    - Anonymous Coward, 13 Jun 2013 @ 8:51am
      
      Re: Re: Re: Now imagine MPAA getting Google's log of your history!
      4chan is weaksauce. Get back to em when you've been to 2Chan Russia.
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  - Starke (profile), 13 Jun 2013 @ 5:50pm
    
    Re: Re: Now imagine MPAA getting Google's log of your history!
    Where they're going, they don't need browser histories.
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- Anonymous Coward, 13 Jun 2013 @ 7:45am
  
  Re: Now imagine MPAA getting Google's log of your history!
  Google Deployed, Comment Irrelevant.
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- John Fenderson (profile), 13 Jun 2013 @ 8:42am
  
  Re: Now imagine MPAA getting Google's log of your history!
  So while perhaps exculpatory here, the far more common use of Google/Verizon/NSA data will be INculpatory.
  
  Nobody says otherwise.
  
  And yet you kids can't see why I rail about ALL computerized surveillance including Google's! I'm actually on your side in being against Google ratting you out.
  
  But you don't rail against ALL computerized surveillance. You only rail against Google. Constantly and obsessively. You seem quite in favor of some forms of computerized surveillance, in fact, when it comes to battling copyright infringement.
  
  While we may agree on some points such as our aversion to surveillance by Google, your comments over a long period of time have made it very clear that you don't consider yourself to be on "our" side (whatever that is). You consider yourself to be our enemy.
  
  Well, in fairness, you consider yourself to be the enemy of the fictional stereotypes you think we are.
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jupiterkansas (profile), 13 Jun 2013 @ 7:46am

So the ultimate irony of this whole situation is that the data might be used to keep an innocent person out of jail?
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Anonymous Coward, 13 Jun 2013 @ 7:58am

If an IP address cannot be associated with a specific individual, not clear how a phone can establish such an association.
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- TasMot (profile), 13 Jun 2013 @ 8:05am
  
  Re: The Phones
  How exactly does he prove that he was in possession of the phones when this happened AND that he wasn't there. It seems that if the location of my phone will prove I'm not in the area of a crime, then just have a friend in another part of town with my phone at the time of the crime. If a phone is needed during the crime, use a burner.... BUT, BUT I wasn't there judge check my mobile phone location. I was across town talking to my girl.....
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  - Michael, 13 Jun 2013 @ 9:14am
    
    Re: Re: The Phones
    Now you have to have a friend that you trust enough to involve in a criminal conspiracy.
    
    The quickest way to get caught committing a crime is to tell someone about it.
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    - John Fenderson (profile), 13 Jun 2013 @ 9:46am
      
      Re: Re: Re: The Phones
      Who said the friend has to know anything at all? Just "accidentally" drop the phone in his car.
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  - Gothenem (profile), 13 Jun 2013 @ 1:50pm
    
    Re: Re: The Phones
    Remember, reasonable doubt. If he can prove the phones weren't there, it does cast SOME doubt that he was not there. And since guilty requires "beyond all reasonable doubt" it should be enough to set him free.
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    - Starke (profile), 13 Jun 2013 @ 5:56pm
      
      Re: Re: Re: The Phones
      There's also the part where the DoJ was claiming that the records were unavailable. While I'm not expecting every DoJ schmuck to know about Prism's records, it could do a real number on their claims that they didn't the evidence didn't exist.
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- Lurker Keith, 13 Jun 2013 @ 8:06am
  
  Re:
  From my understanding, the police pretend that every cell phone owner keeps it w/ them at all times, & I've heard (not 1st party to it, but closer than I'd like) they've used the fact some don't have the phone w/ them or on at the time as evidence they were breaking some law.
  
  That in & of itself should be illegal. If my phone's dead &/ or at home charging, how would that incriminate me? At worst, it can't provide an alibi, not that it could've to begin w/ unless I actually called someone at that time.
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- Chosen Reject (profile), 13 Jun 2013 @ 10:44am
  
  Re:
  You have it backwards. If he can show his phone being somewhere else, then the DoJ now has to show that he didn't have his phone. The guy's not been convicted yet. The government has to show that beyond a reasonable doubt he was there committing a crime. If he shows that his phone wasn't there, and that it was involved in making phone calls, that makes the government's job harder.
  
  The guy could be guilty. He could also be telling the truth that he wasn't there. Let's let due process do it's thing. If he's guilty and walks, that sucks. But that's better, IMO, than him being innocent while not being able to show some exculpatory evidence because the NSA would prefer to keep their secret surveillance secret for longer.
  
  Presumed innocent until proven guilty. Let due process work. Make the prosecution do it's job of proving guilt. Let the defendant show his evidence.
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Anonymous Coward, 13 Jun 2013 @ 8:05am

Devils Advocate
The meta data will only show where the phone was, not who was carrying it at the time.
Certainly going forward, clever criminals are likely to make sure their phone is elsewhere when a crime is being committed.
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- John Fenderson (profile), 13 Jun 2013 @ 8:47am
  
  Re: Devils Advocate
  clever criminals are likely to make sure their phone is elsewhere when a crime is being committed.
  
  The clever ones have been doing this for a long time. The fact that you can be tracked through your cell phone has been widespread knowledge for years.
  
  Fortunately, there are very few clever criminals. The really clever ones realize that there are much more profitable and safer ways to earn a living than breaking the law.
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  - silverscarcat (profile), 13 Jun 2013 @ 9:13am
    
    Re: Re: Devils Advocate
    You mean, work at a bank?
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    - That One Guy (profile), 13 Jun 2013 @ 9:29am
      
      Re: Re: Re: Devils Advocate
      No I think he's talking about entering politics.
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      - John Fenderson (profile), 13 Jun 2013 @ 9:48am
        
        Re: Re: Re: Re: Devils Advocate
        Both, and more! There are myriad opportunities to get rich stealing from others without breaking the law.
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  - Anonymous Coward, 13 Jun 2013 @ 11:01am
    
    Re: Re: Devils Advocate
    > Fortunately, there are very few clever criminals. The really clever ones realize that there are much more profitable and safer ways to earn a living than breaking the law.
    
    They get their friends to rewrite the law and collect bonuses.
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  - David Kastrup, 14 Jun 2013 @ 2:45am
    
    Re: Re: Devils Advocate
    The really clever ones realize that there are much more profitable and safer ways to earn a living than breaking the law.
    
    "Earn a living" is not the American dream. The American dream is about leeching several thousand livings out of people struggling to make do.
    And of course, part of the sport is not contributing equally to the global community, instead smuggling your money out into "investments" and tax havens, either by flat out breaking of the law, or by buying the law.
    Crime pays, particularly big crime. And there are a lot of shelves not accessible for mere "honest wages".
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- Todd Knarr (profile), 13 Jun 2013 @ 9:46am
  
  Re: Devils Advocate
  Ah, but suppose the defendant has the police personal-property paperwork that's filled out on everyone taken into custody listing all the stuff they collected from him, and it shows he did have his cel phone on him and it was placed in storage by them along with everything else in his pockets. That pretty much nails it down, they can't allege he didn't have it on him without claiming in court that they falsified their own records.
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- Rapnel (profile), 13 Jun 2013 @ 9:52am
  
  Re: Devils Advocate
  It will show activity, if there was any. Will it not? Leading to an exploratory on that activity leading to possible verification that the defendant communicated with or did not communicate with any included contacts where said records correlate times, places and, possibly, individuals.
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Mike D, 13 Jun 2013 @ 8:33am

You guys know where the burden of proof is, right?
He doesn't have to prove had the phone. He just wants the records to create a reasonable doubt. That's how criminal defense works.
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Anonymous Coward, 13 Jun 2013 @ 8:34am

And the abuse begins, those records will start to show up everywhere and everyone will want a piece of that data for some reason or another, it will become a cluster fuck no doubt.
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- ethorad (profile), 13 Jun 2013 @ 9:28am
  
  Re:
  Quite.
  
  I left my coat in a bar last night - could someone ask the NSA which bars I was in so I can go and get it?
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Anonymous Coward, 13 Jun 2013 @ 9:53am

This part is interesting
"... the Court must provide the Attorney General of the United States with an opportunity to file an affidavit under oath indicating whether disclosure or an adversary hearing on the defendant's request would harm the national security of the United States. If the Attorney General files such an affidavit, the Court must conduct an in camera and ex parte review of the application, order, and other materials to determine whether the surveillance of the movant was lawfully authorized and conducted. If the Attorney General declines to file such an affidavit, however, the Court may conduct this inquiry in open court."

This court is going to determine whether the surveillance was lawful! And if the AG doesn't bother to file this affidavit, it will be in open court!

It would be crazy if it all comes down to some random bank robbery suspect.
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Anonymous Coward, 13 Jun 2013 @ 10:52am

The meta data may only prove that the phones were not in the area of the crime, not that the accused was not at the scene.
Unless the phones are surgically implanted into the accused.

New alibi, commit a crime, use a burner and have someone else drive your phones around the other side of town.
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Anonymous Coward, 13 Jun 2013 @ 11:45am

Exonerating or incriminating?
Using data collected by the NSA to exonerate a defendant is a small step away from using such data to incriminate American citizens. That sound you hear is the Constitution being flushed down the toilet.
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Anonymous Coward, 13 Jun 2013 @ 12:00pm

Public Records
During today's House Judiciary Committee Oversight Hearing on the Federal Bureau of Investigation, I believe I heard FBI Director Mueller testifying under oath, confirming the NSA call records collection.

I do not expect the official transcript of that hearing to be available for some time yet. Typically those transcripts are not released immediately. I would want to refer to the transcript to see exactly what Director Mueller testified to in today's public hearing.
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Anonymous, 13 Jun 2013 @ 2:21pm

K.?
Joseph K. Simmons? But I thought his middle name was Run!
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Roger, 13 Jun 2013 @ 10:09pm

Back in the day ...
It used to be different when I was a kid. You didn't have to prove you were innocent; the government had to prove you were guilty.
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Uriel-238 (profile), 14 Jun 2013 @ 11:12am

Wait! Wait! This is an example of a term I learned here...
Function Creep.
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