
What We Learned About the Hemisphere Program After Suing the DEA - DiabloD3
https://www.eff.org/deeplinks/2018/12/and-after-what-we-learned-about-hemisphere-program-after-suing-dea
======
iooi
> We have settled the case, with DEA reimbursing EFF $160,000 in legal fees. A
> judge has now dismissed the case, pursuant to the terms of a settlement.
> This was a hard-won victory by our legal team...

It's a good time to make end of the year donations:
[https://supporters.eff.org/donate/year-end-
challenge-2018](https://supporters.eff.org/donate/year-end-challenge-2018)

------
apo
_Six years later, the DEA embraced the secrecy, going so far to keep it out of
the DEA’s equivalent of its internal police reports, DEA Form 6, referred to
as “6s” in the email below.

...

While these tactics were not enough to keep the existence of the program
secret, all information indicates that law enforcement continues to hide its
use in criminal cases. If you believe that Hemisphere may have been used in
your case, please reach out to info@eff.org._

Has a criminal case ever been successfully overturned on the basis of parallel
construction having been used?

~~~
tanderson92
On the contrary: the Supreme Court has provided an approved way for parallel
construction to be laundered into a valid evidentiary tree: by passing it off
to a second officer who develops the case on a good-faith basis (see Herring
vs. United States[1]).

[1]:
[https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2558737](https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2558737)

~~~
jancsika
I don't understand.

1\. NSA whispers to DEA that stolen items are in Alice's basement.

2\. DEA whispers to officer that stolen items are in Alice's basement.

3\. Officer... does what? How is a warrant obtained to search Alice's
basement?

~~~
noja
Invents a reason to search, and definitely finds something.

~~~
jancsika
That's cute, but it doesn't make sense.

I'm no lawyer, but I don't think judges overlook constitutional rights just
because an officer "found something." In fact, I believe there's an entire
industry of defense lawyers that exists _because_ judges don't overlook those
rights.

From another vantage point-- if officers can invent reasons for searches that
pass legal muster, then what does it matter that parallel construction exists
and has a constitutional loophole? If it were really the case that there's an
epidemic of invented reasons for warrants then parallel construction would
improve the status quo by reducing the number of dubious warrants, leaving
only those that "find something."

I'm playing devils advocate here to fish for a legally competent response...

Edit: typo and clarification

~~~
tanderson92
> If it were really the case that there's an epidemic of invented reasons for
> warrants then parallel construction would improve the status quo by reducing
> the number of dubious warrants, leaving only those that "find something."

There must be an understanding here. A warrant executed for an invented and
fictitious reason doesn't become "good" because it "finds something"; it's
dubious precisely because of its provenance (a lie to cover an
unconstitutional search). Whether there really is anything found doesn't
impact the constitutionality of a search: that is the point of the
"exclusionary rule" \-- to exclude real, honest-to-goodness incriminating
evidence of a defendant but which is found in violation of his/her
constitutional rights. We cannot judge the rightness of a warrant based on
whether it leads to useful evidence because then we would have no 4th
amendment at all. Therefore, parallel construction doesn't improve anything;
rather, it can only serve to increase the number of searches executed for
fictitious reasons, and hence the number of dubious warrants.

nb: obviously, the above comment assumes/argues that Herring v United States
was incorrectly decided. Also, I am not an appellate lawyer (or a lawyer at
all).

------
flareback
Am I missing something or is the program still on going? It seems like the
article is about them getting access to information, not getting the program
shut down. Don't get me wrong, I think exposing it is a good first step but
getting it stopped where they can't just search for whatever they want without
a warrant would be the end goal here.

~~~
boomboomsubban
You're correct, this is about a freedom of information lawsuit about the
program. They now seem to be finding potential victims so they can challenge
the actual program.

~~~
flareback
I hope they find someone

------
steve_gh
(UKian): How can they get records without judicial oversight. Why don't they
need a warrant?

~~~
cronix
Because Americans gave up a lot of their rights, knowingly and unknowingly,
after 9/11 to keep us "safe." Our Constitution and Bill of Rights are mostly
just guidelines now. There's what happens in "public" vs what happens in
"private," that you rarely hear about.

> On December 16, 2005, The New York Times reported that the Bush
> administration had been conducting surveillance against U.S. citizens
> without specific approval from the FISA court for each case since 2002.

> In 2011, the Obama administration secretly won permission from the Foreign
> Intelligence Surveillance Court to reverse restrictions on the National
> Security Agency's use of intercepted phone calls and e-mails, permitting the
> agency to search deliberately for Americans' communications in its massive
> databases. The searches take place under a surveillance program Congress
> authorized in 2008 under Section 702 of the Foreign Intelligence
> Surveillance Act.

> Because of the sensitive nature of its business, the court is a "secret
> court" – its hearings are closed to the public. While records of the
> proceedings are kept, they also are unavailable to the public, although
> copies of some records with classified information redacted have been made
> public. Due to the classified nature of its proceedings, usually only
> attorneys licensed to practice in front of the US government are permitted
> to appear before the court. Because of the nature of the matters heard
> before it, court hearings may need to take place at any time of day or
> night, weekdays or weekends; thus, at least one judge must be "on call" at
> all times to hear evidence and decide whether or not to issue a warrant.

[https://en.wikipedia.org/wiki/United_States_Foreign_Intellig...](https://en.wikipedia.org/wiki/United_States_Foreign_Intelligence_Surveillance_Court)

~~~
whatshisface
I still think that it's funny how even something as third-worldy as a secret
court wasn't enough. They didn't stop at disregarding the court system, they
decided to make a joke out of the law itself. It makes you wonder what other
laws the government sees as only suggestions. What credibility do the
enforcers of the law have when they themselves only follow it when it suits
them?

------
jammygit
How do we stop this 'tide' of surveillance? Its clearly political. Is it
necessary to focus on educating kids so they can create a green revolution for
privacy in 20+ years? Or is there a faster way to raise the public concern?

~~~
fjp
I think we're totally fucked. I'm young and my friends are generally smart and
tech-savvy and they pretty much all have the "I have nothing to hide"
mentality or "if the government really wanted to they could get it anyway".

------
user2426679
This is completely off subject, but as a personal rule of thumb, 99% of
articles that include the first person, such as "Why I [did xyz]..." or "How
we can...", are clickbait.

Ime, the best case scenario is Acme Tech Co. "blogging" about "why we used abc
codebase," but the reality is that it's simply rehashing well known
information in narrative form for the purposes of PR, and worst case scenario
is that it's just unoriginal op-ed garbage.

See: "We should replace Facebook with personal websites," which is currently
trending at #10 for HN, above this OP at #16.

EFF is a great organization and can't say that it's surprising to see that
this is the first time in a long time to come across an exception to the rule.

~~~
andrei_says_
Companies need to publish at least one piece per week or they risk dropping
out of the public eye / down in search results.

Naturally, much of it is fluff.

------
Dowwie
The icing effect around these topics is chilling

------
orthogonalconst
reminder: current FBI directory Christopher Wray invented Parallel
Construction back in 2005. In 2005, Wray was then the head of DOJ's Criminal
Division, and Wray was the 17th person in the entire Govt outside of NSA to be
"read into the program" and briefed on Bush's President's Surveillance
Program, now known as NSA's STELLARWIND program.

Wray's job was to lead a DOJ team of attorneys and to scrub criminal and
terrorism indictments of any hint of evidence which originated in the NSA's
then illegal domestic surveillance dragnet, and replace that evidence with
Parallel Constructions to deceive the Court about how the Govt knew what it
knew.

The declassified IG report about STELLARWIND is here:

[https://oig.justice.gov/reports/2015/PSP-09-18-15-vol-
III.pd...](https://oig.justice.gov/reports/2015/PSP-09-18-15-vol-III.pdf)

The 8 pages which mention Wray and describe his role in creating the practice
of Parallel Construction are here:

[http://i.magaimg.net/img/2n7r.png](http://i.magaimg.net/img/2n7r.png)

[http://i.magaimg.net/img/2n8v.png](http://i.magaimg.net/img/2n8v.png)

[http://i.magaimg.net/img/2n7o.png](http://i.magaimg.net/img/2n7o.png)

[http://i.magaimg.net/img/2n7p.png](http://i.magaimg.net/img/2n7p.png)

[http://i.magaimg.net/img/2n7q.png](http://i.magaimg.net/img/2n7q.png)

[http://i.magaimg.net/img/2n7r.png](http://i.magaimg.net/img/2n7r.png)

[http://i.magaimg.net/img/2n7t.png](http://i.magaimg.net/img/2n7t.png)

[http://i.magaimg.net/img/2n8x.png](http://i.magaimg.net/img/2n8x.png)

Given Wray's intimate involvement in Parallel Construction, I have zero hope
that any help is coming from the very top of FBI/DOJ to shed light on what is
going on, how much the Feds are really using Parallel Construction, how far
they are going with it, and most importantly, giving us some kind of proof
that they have stopped abusing it and bowing to some kind of real oversight
process to ensure us that our entire legal system is not a Star Chamber in a
Soviet Kangaroo Court on Clownworld.

Why would Wray budge one inch when he's the top honcho responsible for the
whole debacle? The buck stops at him. And given the Fed's dismal track record,
it's safest to assume Parallel Construction has not stopped, but has expanded
and been rolled out even further.

HEMISPHERE is the AT&T dimension of Parallel Construction, so what about the
Verizon dimension? And the Sprint dimension? And all the rest of the Telcos
and cellular providers? Is AT&T special and only their databases are used for
PC? Of course all the telcos are in on it. Wanna bet this is all a sub-
compartment of PRISM? We still haven't seen the rest of the PRISM slides
leaked by Snowden. On the slide deck it shows the slide numbers up into the
hundreds, but only about a dozen of the slides have been published. Where's
the rest of it?

[https://i.4pcdn.org/pol/1522617577597.jpg](https://i.4pcdn.org/pol/1522617577597.jpg)

