NSA, DOJ Still Aren't Letting Defendants Know They're Using Section 702 Evidence Against Them

from the only-losers-follow-laws dept

Mon, Dec 4th 2017 3:34am — Tim Cushing

The NSA has never taken its evidentiary obligations seriously. The agency is supposed to inform the court and defendants if surveillance-derived evidence is being used against them. (And it's actually supposed to hand over the evidence as well.)

This just doesn't happen. The NSA encourages parallel construction to obscure the true source of evidence used in court cases. The FBI's access to Section 702 collections makes this much easier. It allows the FBI to present NSA evidence as its own, heading off any scrutiny of the NSA's programs and collection methods.

The NSA was always supposed to hand over this information. It's been mandatory for years. But it doesn't. After it was reported the NSA has misled none other than the Supreme Court of the United States about its fulfillment of evidentiary obligations, the agency briefly began complying with the law. It issued five notices in the span of a year (2013-2014) before going dark again.

It appears the NSA's brief flirtation with statutory compliance was just that: brief, cheap, and completely hollow. A show of compliance was made but the NSA had no intention of acting in good faith going forward. The Intercept is publishing more Snowden docs, these ones confirming the NSA's continued obligation-shirking.

A Uzbekistani man living in the US has just been convicted of terrorism charges -- something that followed several months of interaction with two FBI informants, including one who actually lived with him during the course of the investigation. The DOJ got its conviction, but it did it without fulfilling its statutory obligations.

[J]ustice Department lawyers gained their conviction against Kurbanov after failing to disclose a legally significant fact: Kurbanov’s conversations with his alleged terrorist associate had been captured through PRISM, a National Security Agency mass surveillance program whose existence was revealed in documents provided by whistleblower Edward Snowden. Under PRISM, the government obtains communications directly from at least eight large technology companies without the need for warrants, a type of practice authorized in 2008, when Congress provided new surveillance powers under FISA.

Using this collection program, along with the NSA's interpretation of its statutory obligations, no court anywhere is being informed about the collection itself or its use against defendants. When pressed for answers, the DOJ tends to respond with a hoisting of its national security talisman, which usually wards off additional judicial scrutiny.

The DOJ's oversight -- and the NSA's -- should know something's wrong. It's not as though all of this information can only be gleaned from leaked classified documents.

A nationwide review of federal court records by The Intercept found that of 75 terrorism defendants notified of some type of FISA spying since Section 702 became law, just 10 received notice of Section 702 surveillance. And yet Section 702 was credited with “well over 100 arrests on terrorism-related offenses” in a July 2014 report from the Privacy and Civil Liberties Oversight Board…

Those hyping a clean reauth of Section 702 are prone to pointing at gaudy numbers like that one. But they're also willing to overlook the much smaller numbers showing the NSA isn't playing by the rules. I guess we're just supposed to accept the fact that terrorist prosecutions will never be according to Hoyle. That's the price we pay for security, apparently: a mockery of due process and checks and balances in service of the greater good.

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Filed Under: criminals, doj, evidence, nsa, parallel construction, section 702

20 Comments

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DONT BE STUPID BE EDUCATED, 4 Dec 2017 @ 4:10am

the real message
JOIN A GANG FOR PROTECTION
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joecamp (profile), 4 Dec 2017 @ 4:16am

Interesting post
Quite often it seems to me that the authorities deliberately arrest any person who in one way or another seems to be suspicious of a terrorist act, only to calm citizens and make it clear that everything is in control. In fact, everything can be completely different and situation may be worse. Everybody should be very careful in such questions. Best, [writemyessay](https://writemyessay.pro/) expert.
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Anonymous Coward, 4 Dec 2017 @ 4:52am

The greater good...
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Anonymous Coward, 4 Dec 2017 @ 4:58am

a mockery of due process and checks and balances in service of the greater good.

Only if the greater good of the government is more important that that of the citizens, which is the path of tyranny
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David, 4 Dec 2017 @ 5:17am

Are you for the good guys or the bad guys?
Well, who are the bad guys? Why, the ones breaking the law. And who are the good guys? Well, the ones heeding the law. Currently we are out of them but we'll likely get another delivery sometime. In the meantime, have some law officers.
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Anonymous Coward, 4 Dec 2017 @ 6:17am

Re:
Path to it? It is tyranny wholesale thanks to the powers of the internet. Now every single Congress Critter coming into office already has years of Intel gathered on them when they start their careers. Blackmailing people into funding NSA without forcing them to fulfill their side of the bargain seems to be par for the course lately....
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DONT BE STUPID BE EDUCATED, 4 Dec 2017 @ 7:32am

At David
and is the law just , fair to the populace it is supposed ot be enacted on , if not then an unjust law perpetuated by the people you claim are the good guys are not good guys but as bad as any other bad guys...and thus my original statement of them wishing us all to join gangs is correct....

at least fewer people with mess wiht me if we all joined the same gang and merged all the bike and maffia's into one....

ya ya wont happen cause ....ya cops....and such but when was last tme you really felt a cop near you was a good thing ...no one i know has that feeling when any are around
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Anonymous Coward, 4 Dec 2017 @ 7:33am

What ever happened to:

Brady v. Maryland - a landmark United States Supreme Court case that established that the prosecution must turn over all evidence that might exonerate the defendant (exculpatory evidence) to the defense

What does Rule of Law & Precedent mean in today's world where apparently some people are above the law?
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David, 4 Dec 2017 @ 7:47am

Re:
Letting the bad guys get off on a technicality would be a dishonor to the memory of Judge Lynch, one of the most revered practitioners of law the U.S. has seen.
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Anonymous Coward, 4 Dec 2017 @ 8:30am

Well, of course they're not going to let defendants know. Surveillance is the privilege of the ruling authority, not people. Except for corporations, and even then, only for enforcing copyright.
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Anonymous Coward, 4 Dec 2017 @ 9:28am

"That's the price we pay for security, apparently: a mockery of due process and checks and balances in service of the greater good."

Sounds remarkably like your trying to promote acceptance of that rather than anything else, but then again, that is not new with TechDirt.
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Anonymous Coward, 4 Dec 2017 @ 10:39am

Re:
The end justifies the means ... what stinkin pile.
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Anonymous Coward, 4 Dec 2017 @ 10:41am

Re:
It sounds like sarcasm to me, but then sarcasm is my typical response to such things.
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Anonymous Coward, 4 Dec 2017 @ 11:14am

If you work for the state you are a sociopath
period end of discussion, you should be in prison.
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David, 4 Dec 2017 @ 12:10pm

Re: Re:
It should be enough for you that the U.S. sarcastically elected its president. Just stop it.
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Anonymous Coward, 4 Dec 2017 @ 1:44pm

Re: Interesting post
What an awkward way to spam your website.
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Anonymous Coward, 4 Dec 2017 @ 1:50pm

Re: Re: Re:
Stop electing idiots?
I agree
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Anonymous Coward, 4 Dec 2017 @ 4:22pm

Testilying...
"The NSA encourages parallel construction to obscure the true source of evidence used in court cases"

Since when is "parallel construction" Constitutional? It sounds like just plain lying to me, but then, I'm not a lawyer (lie-yer?).

And where is the press's high dudgeon when this "fake news" is used to convict someone in court?
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Karen Melton-Stewart, 4 Dec 2017 @ 8:46pm

NSA and court cases
So, NSA is supplying evidence to convict? I doubt that, they are taking orders to fabricate evidence. I knew Ken Ford, he was set up for prison for daring to report that there were no WMDs in Iraq. NSA reports what THEY want them to. "Tailored Intelligence", Top Secret lies.
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TRX, 5 Dec 2017 @ 8:00am

> NSA encourages parallel construction

When ordinary people do that, it's called "perjury."
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