Report Shows US Law Enforcement Routinely Engages In Parallel Construction

from the no-solution-in-sight dept

A long report by Human Rights Watch delves into the secretive world behind the evidence given in criminal cases. Multiple law enforcement entities are making use of DEA tips to build cases and secure convictions, but they're burying the original evidence using parallel construction, whitewashing it of possible Fourth Amendment violations.

Parallel construction is nothing new. The DEA has been a long-time participant in the practice. Documents obtained by C.J. Ciaramella in 2014 included training materials laying out explicit directions for hiding the origin of questionably-obtained intelligence. The DEA has had full access to domestic phone records thanks to the Hemisphere program. Records obtained via this legally-dubious method have been passed on to local law enforcement agencies with instructions to obscure the origin of "new" criminal investigations.

The FBI has also encouraged parallel construction, most notably with the non-disclosure agreements its forces local agencies to sign before acquiring cell tower spoofers. Agencies are told to keep info about Stingray devices out of court at all costs -- up to and including dismissing charges. Consequently, Stingray deployments have been hidden behind ping requests and pen register orders, preventing courts from examining the origin of the evidence for Constitutional issues and preventing defendants from challenging the legality of the evidence used against them.

Parallel construction goes far beyond Stingrays and phone records. It can involve nascent technology with unproven track records, allowing criminal sentences to be obtained based on very questionable evidence.

Parallel construction also means judges may never evaluate whether government uses of constantly evolving surveillance techniques adhere to the US Constitution and laws adopted by Congress, as is their role in the US system. For example, if the government were to identify a suspect in a robbery by scrutinizing a store’s security video using a new but flawed facial recognition technology it does not want to reveal, it could send an informant to talk to the suspect and report what he said—then suggest in court records that this conversation was how the investigation began. Such possible uses of parallel construction are especially troubling in human rights terms because new technologies may be inaccurate (including, in the case of facial recognition software, for people of certain racial or ethnic groups) or raise new legal concerns. Unless judges are aware that such new technology has been used, they will not be able to assess whether the technology violates rights.

But judges won't be seeing much info on government surveillance means and methods that the government wishes to keep hidden from the public. The DOJ has dodged its evidentiary obligations for years in regards to NSA-derived evidence, despite multiple government agencies having some sort of access to the NSA's collections.

Worse, the courts have encouraged the practice of parallel construction by giving officers free rein to perform pretextual stops. Any real or perceived traffic violation can serve as a pretext for stop meant to discover evidence of some unrelated crime. A 20-year-old Supreme Court decision turned traffic stops into fishing expeditions.

The Supreme Court's Rodriguez decision only slightly mitigates the damage done by the 1996 decision. It holds a traffic stop ends when the stated objective is completed. If an officer stops someone for speeding -- even if the real purpose is to search for evidence of drug trafficking -- the stop is over when the citation or warning is given. What this means in practice is law enforcement has to move faster to find something approximating reasonable suspicion to extend the stop. Slow-walking the stop until a drug dog arrives still works most of the time.

If more courts were willing to hold officers to the spirit of the decision, pretextual stops would become a very precarious way to obtain evidence. Instead, the courts have generally been willing to continue to give the government considerable leeway during pretextual stops.

This is what keeps the lights on in the DEA's Special Operations Division. Known colloquially as the "Dark Side," the DEA's SOD passes on tips to locals, pointing them at DEA surveillance targets while ensuring these local agencies understand they'll have to find another way to come up with the evidence the DEA has already handed them.

Sources consistently describe the SOD as distributing tips to other agencies, subject to a mutual understanding that the tips will not be revealed in court proceedings. Typically, the division does not disclose the original source of its knowledge, even to other law enforcement officers or prosecutors. Rizer explained the government’s perspective after obtaining and deciding to share information that may be useful in a US criminal investigation: “A lot of times, you don’t want the bad guys to know how you got [the] information…. You want to give [law enforcement] just enough” to start an investigation, but “not enough to know where everything came from.”

This generally leads to pretextual stops, known by a number of unofficial nicknames synonymous with parallel construction:

The documents Ciaramella obtained indicate that the use of “[a] wall off or pretext stop” is an accepted tactic. Human Rights Watch has also identified numerous federal and state judicial decisions in which the government has admitted, after the fact, to having carried out what are known as “whisper,” “wall,” “walled off,” or “wall off” stops. It is unclear how the government decides whether to disclose the fact a traffic stop was pretextual on its own initiative during proceedings: in at least one case Human Rights Watch identified, the disclosure of a “wall stop” was inadvertent (evidence emerged in a New Mexico federal trial that an officer had mentioned a “whisper stop from DEA” to a dispatcher while unaware that he was being recorded). In another case a defendant who had been convicted in Arizona state court only found out the traffic stop in his case was a “whisper stop” requested by the DEA after his conviction, when pertinent records were later disclosed in a California federal court.

"Whisper" refers to federal tipsters who are not to be exposed in court. "Wall stops" refer to building a "wall" between the evidence obtained via the pretextual stop and its true origin via DEA sources. In both cases, nothing about the original evidence can be challenged. Evidence obtained via bulk surveillance or warrantless intercepts remains hidden. The trustworthiness of confidential informants cannot be questioned. It remains walled off from the court and defendants, forcing them to work only with what was derived from a traffic stop that likely would not have happened without the intervention of a government agency whose name never appears in court documents.

To fix the problem of parallel construction, Human Rights Watch suggests a legislative fix. Unfortunately, as solid as the recommendations are, there's roughly a zero percent chance a bill like this would make its way to the president's desk.

Congress should… adopt legislation requiring that all executive branch agencies be treated as part of the prosecution for the purposes of obligations to disclose exculpatory information. Additionally, it should evaluate the judicially developed doctrines (such as applications of the “independent source” doctrine, interpretations of Whren, and the doctrine of collective knowledge) that may facilitate law enforcement’s use of searches and seizures for parallel construction purposes and consider imposing restrictions accordingly.

To address the possibility that parallel construction is used to conceal potentially unconstitutional surveillance, we recommend that Congress adopt legislation strictly requiring the executive branch to notify defendants in all criminal cases of any employment of investigative techniques involving the surveillance of communications or metadata, or the compilation or monitoring of other personal data such as biometric data. Congress should also adopt similar requirements for other proceedings in which individuals’ rights are adjudicated (such as immigration proceedings). Such legislation should impose requirements on prosecutors to determine whether such techniques were employed. In general, Congress should exercise stronger oversight over surveillance and other forms of data-gathering that take place under intelligence authorities.

The first recommendation would make all government agencies answerable to discovery requests. This is an important fix, and one that would face a less of an uphill battle in Congress. Currently, any agency that has passed on info used in parallel construction can simply claim its not part of the prosecution and is therefore not required to hand over information to the defense. This would force agencies to search for and produce documents related to the origins of the evidence handed over to local agencies. Or would in theory. The DOJ has spent years dodging evidentiary obligations for Section 702 cases (another place parallel construction is a common practice), so it's apparent the Justice Department picks and chooses which statutory requirements it will follow. Another law on the books won't make much of a dent.

As it stands now, the system will allow the government to continue to prosecute people while withholding information pertaining to questionably-obtained evidence. Supreme Court decisions on traffic stops haven't made things much better, even with more recent decisions adding a bit back to citizens' Fourth Amendment protections. The end result is ugly: the government can lie with impunity, making a mockery of the Fourth Amendment in the process.

Filed Under: 4th amendment, dea, due process, evidence, parallel construction
Companies: human rights watch

Court Says Government Has To Reveal If It Kept The Data From The DEA's Mass Surveillance Program

from the standing-achieved dept

Back in April, USA Today had a detailed report on a massive DEA phone records surveillance program that pre-dated 9/11 (and the NSA's similar phone records mass collection). The DOJ put an end to the DEA's program after the Snowden revelations when it realized that the government's own defense of why the NSA program was legal would conflict with the DEA program. Specifically, it kept trotting out "terorrism" and "national security" but that didn't apply to the DEA's program, which was actually used much more widely than the NSA's (according to the report, the DEA searched the database as many times in a day as the NSA did in a year). However, a day after this report, Human Rights Watch, represented by the EFF, sued the DEA over the program -- citing both the First and Fourth Amendment as being violated.

As expected, the DEA pulled out the usual defenses to try to get the lawsuit dismissed, including arguing that without direct evidence of surveillance on Human Rights Watch, the organization had no standing. Those arguments were given much more credence by the courts in the pre-Snowden era, but lately the courts have been much more skeptical. And, thus, the district court has (somewhat, narrowly) rejected this argument by the DEA and allowed the EFF to move forward with a bit of discovery, which hopefully will enable it to find out at least some details of the surveillance program.

More specifically, the court ruling by Judge Philip Guitierrez says that HRW has enough standing on the 4th Amendment question, but not on the 1st Amendment question. Specifically, on the 4th Amendment issue, the court finds HRW's claims to be entirely plausible, which is enough to allow discovery.

First, the Government argues that HRW has not pled that it suffered an injury in fact as a result of the Mass Surveillance Program because HRW has not plausibly alleged that its call records were ever collected pursuant to this Program.... The Government contends that HRW’s allegation that “Defendants obtained records of HRW’s communications to the Designated Countries as part of the Mass Surveillance Program,” ..., is insufficient because it lacks supporting factual allegations that render the claim plausible, rather than merely possible.... For example, the Government highlights that the Complaint and the attached Patterson Declaration do not identify the specific U.S. telecommunications companies that received administrative subpoenas under the Program or a time period during which the Government requested and collected call information.... The Court acknowledges that the Complaint does not contain such particularized pleadings as: HRW staff called individuals in Iran using Verizon lines in 2012; the Government issued subpoenas to Verizon for all 2012 Iranian call data; Verizon produced all 2012 Iranian call data to the Government; the Government obtained HRW’s 2012 Iranian call data. However, HRW’s allegation that the Government collected records of its communications to designated foreign countries pursuant to the Mass Surveillance Program is supported by some specific factual allegations that render this allegation plausible, rather than merely possible.

The Patterson Declaration states that the Government compiled a database “consisting of telecommunications metadata obtained from United States telecommunications service providers pursuant to administrative subpoenas served upon the service providers under the provisions of 21 U.S.C. § 876.” ... The metadata “related to international phone calls originating in the United Sates and calling [] designated foreign countries, one of which was Iran, that were determined to have a demonstrated nexus to international drug trafficking and related criminal activities.” ... The database could then “be used to query a telephone number where federal law enforcement officials had a reasonable articulable suspicion that the telephone number at issue was related to an ongoing federal criminal investigation.” ... From these factual representations, HRW alleges that the program collected call records for “all, or substantially all” telephone calls originating in the United States and terminating in the “designated countries” since at least 2011....

This allegation that “all, or substantially all” of these calls were collected necessarily embraces the more specific factual allegation that the Government issued subpoenas to all, or substantially all U.S. telecommunications companies to collect these calls.... Moreover, HRW’s allegation that the Government collected call data on “all, or substantially all” calls is plausible. First, the Patterson Declaration did not contain language indicating that the Government targeted only some U.S. telecommunications providers, instead it stated broadly that metadata was “obtained from United States telecommunications service providers.”... Further, because the only criteria for collection were the involvement of certain initiating and receiving countries and the Program’s aim was to create a broad database for criminal investigation queries, it is not implausible that subpoenas would be issued to all U.S. telecommunications companies requesting all qualifying data so that the Government could compile a complete database to better serve the investigative query purpose.

And thus:

In light of the plausible allegation that nearly all such calls were collected pursuant to the Program, the pled facts regarding HRW’s telephone practices support the ultimate allegation that the Government did collect HRW’s call data, as directly alleged in the Complaint.

The government also argued that since the program is over, there's nothing to fight over any way, and there's no standing to seek an injunction since there's nothing to stop. However, the court finds that because the government has not said it destroyed the data, there is at least enough of a reason to move forward to determine if the government retained the data.

Standing over the First Amendment claim is rejected, however, because the complaint did not claim a concrete injury:

The Court does not reach the legal sufficiency of this claimed injury because HRW has not alleged this First Amendment injury with factual sufficiency. Injury in fact requires a harm that is “‘concrete’ and ‘actual or imminent,’ not ‘conjectural’ or ‘hypothetical.’”... HRW does not provide any factual allegations that indicate that HRW’s chilled communication concern is actual and imminent rather than conjectural. For example, HRW does not allege that any of its contacts know about the Mass Surveillance Program or that they have ever refused to communicate with HRW due to the Government’s retention of collected telephone metadata pursuant to a Program that has been occurring for years. Without alleging any specific supporting facts, HRW’s statement that its “ability to effectively communicate with people inside the Designated Countries” has been burdened is a conclusory allegation that the Court does not accept. Moreover, the allegation that HRW “cannot assure its associates abroad that their communications records will not be shared” is implausible in light of the Patterson Declaration’s attestation that the Government is not currently using or querying the collected information.

Still, the win on standing over the 4th Amendment issue is important, and it will allow discovery to move forward -- but in a fairly limited way, focused on determining if the government did, in fact, retain the records.

The Court agrees that some limited discovery directed toward the Government is warranted because such discovery could possibly provide HRW with jurisdictional evidence suggesting that the Government still possesses HRW’s call records in some form. Accordingly, the Court will allow HRW the opportunity to conduct limited discovery on this issue.

[....] The Court limits the interrogatory topics to the following issues: (1) whether the Government retains call records in repositories other than the purged database; and (2) whether the Government retains Program call records in derivative forms. Accordingly, the Court orders that HRW is permitted to serve no more than five interrogatories on the Government regarding these two issues.

This is fairly narrow, and it's entirely possible that the government may now try to get out of this whole case by simply saying that it has purged all those records. However, at the very least, as the EFF notes, it will let the world know whether or not the government has kept all those phone records.

Filed Under: dea, mass surveillance, phone records, surveillance
Companies: eff, human rights watch

EFF, Human Rights Watch Sue The DEA Over Mass Surveillance Program

from the good-timing dept

Well, that was quick. As we noted, just yesterday, USA Today published a detailed takedown of the DEA's massive phone records mass surveillance program that was actually started more than two decades ago. And this morning, the EFF, representing Human Rights Watch, filed a lawsuit over the program. Of course, the program had actually been revealed years ago, and back in January, the US government revealed some details itself about the program, which is what prompted the new lawsuit. As the EFF notes in its press release about the lawsuit:

“The DEA’s program of untargeted and suspicionless surveillance of Americans’ international telephone call records—information about the numbers people call, and the time, date, and duration of those calls—affects millions of innocent people, yet the DEA operated the program in secret for years,’’ said EFF Staff Attorney Nate Cardozo. “Both the First and Fourth Amendment protect Americans from this kind of overreaching surveillance. This lawsuit aims to vindicate HRW’s rights, and the rights of all Americans, to make calls overseas without being subject to government surveillance.”

I recommend reading the full complaint which has more details. It details why the program violates both the First and Fourth Amendments. The basic First Amendment argument:

By their acts alleged herein, Defendants have violated and are violating the First Amendment free speech and free association rights of Plaintiff and its staff, including the right to communicate anonymously, the right to associate privately, and the right to engage in protected advocacy free from government interference.

And the Fourth Amendment argument:

By the acts alleged herein, Defendants have violated Plaintiff’s reasonable expectation of privacy and denied Plaintiff its right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the Constitution of the United States.

It seems likely that the government will pull out all the usual stops to try to end this lawsuit, arguing "national security" and "state secrets" and all that jazz. However, as the USA Today report noted, Eric Holder agreed to kill off this program after realizing that it was nearly impossible to defend in the same manner as the feds were trying to defend the NSA's bulk phone records collection...

Filed Under: 1st amendment, 4th amendment, dea, first amendment, fourth amendment, lawsuit, mass surveillance, metadata, phone records, surveillance
Companies: eff, human rights watch

NSA Spied On Human Rights Watch And Amnesty International

from the because-of-course-they-did dept

Ed Snowden testified (via video, of course) for the Council of Europe, the "top human rights body" of Europe, and told them that the NSA spied on various human rights groups, including Human Rights Watch and Amnesty International.

He told council members: "The NSA has specifically targeted either leaders or staff members in a number of civil and non-governmental organisations … including domestically within the borders of the United States." Snowden did not reveal which groups the NSA had bugged.

The assembly asked Snowden if the US spied on the "highly sensitive and confidential communications" of major rights bodies such as Amnesty and Human Rights Watch, as well as on similar smaller regional and national groups. He replied: "The answer is, without question, yes. Absolutely."

Of course, one of the things that's bugged me most of all about the response from NSA defenders is the typical line: "we're not listening to you talk to your grandmother" or whatever similar line may be. But, as more and more revelations have come out, they get closer and closer to the kinds of communications I actually do have on a regular basis. Talking to sources working on interesting technology projects, talking to human rights and civil society groups around the globe. Spying on journalists. Each day there's more and more evidence that while the NSA might not care about some mythical person talking to his or her mythical grandmother, it is very much collecting all sorts of information that those very same people thought were private -- and which clearly have nothing to do with national security.

Filed Under: council of europe, ed snowden, human rights, nsa, surveillance
Companies: amnesty international, human rights watch

EFF Files Massive Lawsuit Over NSA Surveillance: Gun Rights, Civil Liberties Groups, Religious Groups Team Up

from the one-to-watch dept

While there have been a number of lawsuits already filed over the NSA's surveillance program, the EFF has just jumped in in a big way. Representing a variety of advocacy groups, religious groups and even a gun maker, the lawsuit makes the case that the dragnet surveillance violates the First, Fourth and Fifth Amendments. The plaintiffs in the case include the First Unitarian Church of LA, Greenpeace, Calguns, the Bill of Rights Defense Committee, California Association of Federal Firearms Licensees, Council on American Islamic Relations, the Franklin Armory, Free Press, Tech Freedom, Public Knowledge, the Free Software Foundation, Human Rights Watch, the National Organization for the Reform of Marijuana Laws (NORML), the Open Technology Institute, People for the American Way and Students for Sensible Drug Policy. It's a pretty wide-ranging group of folks who don't normally agree on much (in fact, some of them probably disagree with each other, vehemently, on a number of issues). But they've come together for this.

The First Amendment argument is basically that this is chilling these organizations' right to communicate anonymously:

Defendants have violated and are violating the First Amendment free speech and free association rights of Plaintiffs, their members, and their staffs, including the right to communicate anonymously, the right to associate privately, and the right to engage in political advocacy free from government interference.

By their acts alleged herein, Defendants have chilled and/or threaten to chill the legal associations and speech of Plaintiffs, their members, and their staffs, by among other things, compelling the disclosure of their political and other associations.

Of the three main arguments, this is the one that I think may be the weakest, and the easiest for the courts to dismiss -- but I hope I'm wrong. The Fourth Amendment claim is clearly the strongest:

Plaintiffs have a reasonable expectation of privacy in their telephone communications, including in their telephone communications information.

By the acts alleged herein, Defendants have violated Plaintiffs' reasonable expectations of privacy and denied Plaintiffs their right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the Constitution of the United States, including, but not limited to, obtaining per se unreasonable general warrants. Defendants have further violated Plaintiffs' rights by failing to apply to a court for, and for a court to issue, a warrant prior to any search and seizure as guaranteed by the Fourth Amendment.

And then there's the Fifth Amendment argument, that we've been hearing a few people make recently:

Plaintiffs, their members, and their staffs have an informational privacy interest in their telephone communications information, which reveals sensitive information about their personal, political, and religious activities and which Plaintiffs do not ordinarily disclose to the public or the government. This privacy interest is protected by state and federal laws relating to privacy of communications records and the substantive and procedural right to due process guaranteed by the Fifth Amendment.

Defendants through their Associational Tracking Program secretly collect, acquire, retain, search, and use the bulk telephone communications information of Plaintiffs, their members and their staff without providing notice to them, or process by which they could seek redress. Defendants provide no process adequate to protect their interests.

As part of this 5th Amendment argument, they point out that secret FISA Court interpretations of the law would seem to violate basic due process as well.

This legal interpretation of 50 U.S.C. § 1861 is not available to the general public, including Plaintiffs, their members and their staff, leaving them and all other persons uncertain about where a reasonable expectation of privacy from government intrusion begins and ends and specifically what conduct may subject them to electronic surveillance.

This secret legal interpretation of 50 U.S.C. § 1861, together with provisions of the FISA statutory scheme that insulate legal interpretations from public disclosure and adversarial process, fails to establish minimal guidelines to govern law enforcement and/or intelligence collection.

The secret legal interpretation of 50 U.S.C. § 1861 used in the Associational Tracking Program and related surveillance progras causes section 1861 to be unconstitutionally vague in violation of the Fifth Amendment and the rule of law. The statute on its face gives no notice that it could be construed to authorize the bulk collection of telephone communications information for use in future investigations that do not yet exist.

As mentioned, there are a number of similar lawsuits, and I wouldn't be surprised to see some of them lumped together at some point, but this one should be an interesting one to follow.

Filed Under: due process, fifth amendment, first amendment, fourth amendment, free speech, gun rights, nsa, nsa surveillance, privacy
Companies: calguns, eff, first unitarian church of la, franklin armory, greenpeace, human rights watch, public knowledge