
Bank robbery suspect wants NSA phone records for his defense - pain_perdu
http://www.sun-sentinel.com/news/local/crime/fl-phone-records-fisa-broward-20130612,0,5434900.story
======
paulsutter
His lawyer is a genius and a hero. A genius because when he doesn't get the
records (and be wont), it will appear the prosecution has something to hide.
He wins either way.

And a hero, because this makes clear the exact problem with these databases.
Once they exist, there are endless uses for that each -seem- reasonable. This
request illustrates that slippery slope in a way that makes even the NSA
nervous.

~~~
visarga
Trying to make a mindmap of what has transpired and implications:

* monitoring the world

\- better PR (how to spin news to the masses)

\- better data for elections (get out to vote campains, donations) - this way
they improve their elections machine

\- better metrics for governmental activities and social development - this is
what I hope it will be used for

* manipulation

\- bubbling - presenting slanted/targeted results in searches and feeds -
requires deal with FB and Google - in this way they can promote the opinions
they want and actively downplay the activist movement

* propaganda

\- using analytics they can target write articles in the media to influence
public opinion

* blacklisting

\- we've seen this in China and US, with The Great Firewall and No-fly List,
it will probably become much more pervasive

\- they can blacklist persons but also websites and specific messages in
social networks

* targetting people

\- they can auto-identify activists for any political orientation, networks of
people, the social influencers

* blackmailing

\- they know our most private interests and they can use that for blackmail
when a person has been auto-identified or in any other situation

* wildcard - what will happen in the future with this information

\- it could fall in the hands of Republicans

\- similarly, other countries could make use of such datasets

\- various companies could use the info for their own benefit (for example
Google could use the data in many ways that would scare the people)

* slippery slope

\- use of surveillance data in civil and crimilal lawsuits -> imposing a reign
of terror on population

* the basic questions

\- who has access?

\- what data has been collected?

\- how are they using it, and what machine learning tools are they applying on
it?

\- who is going to get such data in the future and how are they going to use
it?

~~~
monkeypizza
This is what's happening in China now. They've had the great firewall for 10
years - what's happening since then has been further development of ways to
manage what people think. So they allow weibo, etc. to work, and are figuring
out how to control the message.

By controlling a few birds at the right moment, you can control where the
whole flock goes, and it still thinks it's free.

~~~
kalms
Sounds very Illuminati to me. (Oh yeah. I went there.)

I don't think it's that easy, though. China seems, at least to me, as a very
divided nation. They can't keep it up forever, I mean - something's gotta give
at some point.

~~~
chao-
It "gives" quite frequently, and between the size of the system, and some
policies therein, it can absorb a significant amount of "give". There are
actually _hundreds_ of protests each day. State media control is of course the
largest reason you don't hear about them often, but far from the only factor.

When discussing China from a Western perspective, and not simply using
"culture and history" as a catch-all/cop-out for differences, I would say two
points need to be kept closely in mind: Scale and Paranoia.

No Western country operates at "China Scale". Entire societal functions
operate less efficiently, or break down entirely, when you reach a certain
size. You often hear bewildered statements, wondering "Why China does X
instead of Y?", where X is an unsustainable notion for them. Sort of like how
on HN we talk about "Facebook Scale" or "Twitter Scale" to emphasize sets of
problems that most other companies don't have, and likely never will.

But size lends something else: Momentum. Things will continue forward tomorrow
in a manner similar to today, if only because it would take a huge exertion of
effort to change it. And in this case, 500 protests per day with a few dozen
people each is _not a huge exertion of effort_ relative to the population.

As for paranoia, I'm sure some of China's leaders agree with your _" They
can't keep it up forever"_ statement (at a national level--local is a
different matter). They worry about this regularly and it colors much of what
they do. Does a US Senator wake up in the morning and ask themselves "Is today
the day that everyone decides democracy is a terrible idea? Is today the day
it all crashes down?" Of course not. But many of China's leaders worry for
their system.

Of course that paranoia is probably of a different flavor now than 20 years
ago. China's economic success and continued upward trajectory has to help some
leaders sleep easier at night.

As for the Illuminati: Please don't go there. It never helps.

~~~
kalms
Oh, I didn't mean to go all conspiracy theorist on you. The previous comment
just sounded a lot like it.

I think China will be okay, as long as their economy doesn't collapse under
its own weight.

~~~
tg3
I can't think of an instance of an economy "collapsing under its own weight."
China might run into issues with currency manipulation, but aside from that
they will be most stable so long as they keep growing at a fast clip. The
problems will start to appear when growth slows or stalls, and people no
longer see their lives or children's lives getting better (e.g. the Arab
Spring)

~~~
kalms
There's the signs of an early housing crisis (i.e lots of apartments being
built, but nobody's buying). Entires cities stands empty, without occupation.
That seems a bit like an economy that's heaving trouble maintaining itself.

~~~
tg3
Ah so you're saying the government pumping up economic growth artificially
won't be able to continue indefinitely. I'd agree: organic economic growth
can't cause economic collapse (unless there are serious infrastructure issues)
but artificial growth certainly can.

------
lifeisstillgood
And in one go, NSA moves from evil fuckers to Dropbox-for-the-whole-world.

Next step, political refugee uses NSA records to determine who was torturing
him in Afghanistan.

To be fair it's absolutely brilliant - the only real defence we have against
total surveillance is to be able to see what the guards are watching as they
watch. This is a step along that road. Mr Brown may be doing the world a much
bigger favour than we think.

~~~
inthewind
If it all hushes down and we begin to get on with our daily lives, with the
program still intact, perhaps you'll be able to make an information request.
For a fee of course, oh hang on, isn't that how it already works?

You've got more faith in the freedom of information than sadly I! Perhaps
information will randomly go missing. Just like the spurious claim that the
CCTV network was down on the London underground on 7/7 (really??)

Or you'll get it rebuffed under something like: ‘likely to prejudice the
defence of the British Island’

[http://peacenews.info/node/6840/remote-
killing](http://peacenews.info/node/6840/remote-killing)

Hot air from the Tories in 2010:

[http://www.conservatives.com/News/News_stories/2010/04/~/med...](http://www.conservatives.com/News/News_stories/2010/04/~/media/Files/Downloadable%20Files/Big%20ideas%20to%20give%20Britain%20Real%20change.ashx)

1\. Never again be governed for years by a prime minister with no popular
mandate. (Isn't that rather ironically exactly what we got!)

3\. They'll expand on the freedom of information act.

7\. They'll protect whistleblowers.

8\. The right to data act, the public will have the right to appeal if public
bodies refuse requests for data collected by the government.

~~~
seabee
Re: missing CCTV, aren't you thinking of the death of Jean Charles de Menezes
two weeks after 7/7?

~~~
inthewind
[http://www.julyseventh.co.uk/7-7-cctv-
evidence.html](http://www.julyseventh.co.uk/7-7-cctv-evidence.html)

They really need to sort it out.

------
achille
21 Comments so far and none commenting the State's Secret Privilege that
allows such requests to be thrown out immediately. None of these lawsuits will
go anywhere.

See:
[http://en.wikipedia.org/wiki/State_secrets_privilege](http://en.wikipedia.org/wiki/State_secrets_privilege)

People erroneously tortured by the govt had their cases thrown out. Cases as
low as bank robbery have zero chance.

~~~
icambron
I'm not so sure. In what way are this guy's phone records a state secret?

~~~
fletchowns
I'd say it's because they are part of a top secret government program

~~~
michaelfeathers
Not any more.

~~~
Mordor
Actually, there are a lot of secret programs and there's going to be a PRISM
II, which, coincidentally keeps an exact copy of the data from PRISM after it
has been switched off.

The only way to get around this is to open up the NSA to an independent team
of international cyber experts from the UN. It would set a great precedent of
21st century democracy and challenge totalitarian regimes around the world.

~~~
eru
Why from the UN?

~~~
alan_cx
Because its not the US and not a specific foreign state.

I know Americans hate the UN, to socialist and dares to criticise the US, but
for non Americans it's the closest thing to an authority that they can at
least try to believe in as independent. We all trust the UN weapons
inspectors, yes? Well, not GW Bush on a war path, true, but the rest of us?

So how about UN Data Inspectors?

Do Americans really believe the rest of the planet even slightly trusts the US
government? No. So the UN would be the best bet. Unless the US is prepared to
be audited by, say, the French.

B5 fans will understand that the US is nicely represented to many by Mr
Morden. Nice hair, nice suit, winning smile, all the right words....
surrounded by shadows.

~~~
will_brown
Americans hate the UN? The US subsidizes roughly 75% of the cost of the UN.
That should emphasize the US commitment to the UN and international community.

It may be fair to say Americans are skeptical about relinquishing State
Sovereignty, such as the US refusal to sign the Rome Statute and come under
the jurisdiction of the International Criminal Court, but most Americans would
agree the UN is of great importance to the World.

>Do Americans really believe the rest of the planet even slightly trusts the
US government? No

I think if you took a poll at any given time a majority of Americans would not
trust their own government. American history teaches us to have a healthy
skepticism for government. That skepticism would certainly extend to the UN,
whereas at least the US is a democracy, in all its imperfection, which
includes terms limits and elections, it only makes sense to be skeptical of
relinquishing sovereignty to a UN that includes States represented by
authoritarian and repressive regimes.

~~~
icambron
Do you have a source for that 75% number? He's one for 22%:
[http://en.wikipedia.org/wiki/United_Nations#Funding](http://en.wikipedia.org/wiki/United_Nations#Funding)

------
gambiting
He will never get them. I will give you a different example - in 2010, when
the Polish president died in a plane crash in Russia, it was known that he
placed a phonecall from his satellite phone shortly before the crash. Well,
for investigation, Polish government wanted these records, and the only
country that had them was.....the United States of America. Back then it was
known that they intercept and store ALL satellite calls, even the ones made by
a president of a foreign country.

And guess what? The US refused to release them, under the guise of "national
security". Polish(and Russian) investigators NEVER got these records, even
though they clearly exist.

Therefore, I don't think a guy like this would ever get what he wants from the
US government, it's just not how it works.

~~~
redblacktree
It may help that this requestor is a US citizen. This gives him certain rights
that the Polish government did not have in the case that you cite.

------
visarga
This will get messy. Everyone will start pulling at this database. Can they
send men to prison on account the information needed to exonerate them is
classified, even if the person requesting the data is the same person under
surveillance?

~~~
drivebyacct2
More like, withholding evidence! Think about it. That metadata could _very
plausibly_ confirm or deny alibis (or at least help confirm/deny maybe).

~~~
devcpp
Is it not considered evidence acquired illegally and unusable in court?
Considering most people think that most of this information does not qualify
as probable cause per the Fourth Amendment...

~~~
mayneack
That requires admission of illegality

~~~
drivebyacct2
I don't know why but this put this all in a whole extra sharp perspective for
me.

------
pseingatl
This is not the first time a request like this has been made. In the Noriega
case, the attorney for one of the co-accused pilots requested copies of
telephone conversations intercepted by the NSA at their secret facility in
Panama called "The Tunnel." The Government went ballistic and tried to have
the defense attorney arrested--somehow he had obtained a copy of a map showing
the existence and location of the facility. The Government merely denied that
it had such records but quickly made a princely deal with the lawyer which
ended up excluding the pilot from the case and giving him a sentence of less
than a year.

The other issue that bothers me with respect to the defense lawyer's tactic
here is that it does not appear he has complied with the Classified
Information Procedures Act. Since the request was made in the middle of trial,
perhaps the judge waived these, but failure to comply would be another way to
get around the disclosure requirement.

Finally, line U.S. Attorneys really have no knowledge of these matters--Main
Justice flies in CIPA specialists to assist whenever there is classified
information.

~~~
roboneal
Is the existence of the phone "metadata" classified anymore after national
media debate and the public acknowledgement by POTUS? And unless this suspect
is under a national security investigation, I can't see how his specific phone
records can be classified in "subset".

------
ignostic
I see a lot of smart people making intelligent comments, but intelligence is
not knowledge of the law. I'm not a lawyer, and am happy to be corrected by
one, but I do have some small knowledge of law.

First, under the law there is no entity called "government." I see these
blanket statements about "the government must." The prosecutors don't belong
to the NSA, and so we need to understand that laws rarely apply across the
spectrum to the whole of the federal government.

Second, we need to understand that there are lots of rules and laws related to
disclosure. The defense and prosecution can ask for many documents, and there
are well-defined rules for what you can withhold, redact, and what you must
produce. Because the entities are separate (see above) the rules that apply to
the prosecution are different from those that apply to the NSA.

Finally, the NSA need only comply with the rules for issuing subpoenas. This
is where things get messy. I'd be surprised if a subpoena gets issued at all,
more surprised if the NSA responds, and I might die of shock if they said
anything besides, "no, because national security."

The NSA works to catch criminals - not to defend anyone. I know it seems and
probably is unfair, but this lawyer's request is going nowhere. It's the same
as with "anything you say can be used against you," the police aren't required
to disclose the things you tell them that would help your defense. Don't
expect law enforcement to come to your aid in criminal defense. The sad truth
is that the information recorded by the NSA can be used to prosecute, but
it'll be a cold day in hell before the NSA lets you use their information for
your defense.

~~~
grappler
This sounds like a great explanation of an additional reason why the NSA
collecting billions of communication records is harmful to civil liberties. It
empowers prosecutors with no proportional aid to defendants.

~~~
ignostic
Yes, this is one of the main problems I see with the NSA.

------
scotty79
That's exactly why I think total surveillance can be totally fine. You just
need to have unrestricted access to all recordings of you. It can prove many
things for you and if someone will try to smear you by using some recording
ripped out of context you can provide context if you have access to the
material.

Of course US will have to do something about the law mess. Whatever they do,
it can be only improvement over current: we have too many laws to even count
them, and we are sort of fine not enforcing most of them, most of the time
because bunch of them are silly.

~~~
babby
But if we rely on this too much it would in theory give more power to hackers,
and more reliance on the secureness of such a system. Suddenly you're being
framed by some entity with sufficient political or hacking power.

~~~
scotty79
I think it will eventually evolve into a system where everyone has access to
everything, but it might take a generation or two. Intersting times.

~~~
TeMPOraL
I sometimes thought the same way, but yesterday I read Asimov's "The Dead
Past" and it made me realize where the limit of this lies. I'm not sure if we
want it that far.

~~~
scotty79
I recommend to you Culture series of Iain M Banks.

~~~
TeMPOraL
Thanks! On my 'to read' list!

------
mbillie1
It would be very interesting to see what would happen if this were to occur in
a case where the defendant's phone records were relevant to the defense's case
and the defense attorney asked for the NSA records to demonstrate innocence.
Not sure if this case qualifies or not, as I haven't heard anything of it
other than this article.

~~~
asperous
If the defendant is the one who wants the phone records, can't his laywer call
the phone company on his behalf and obtain them?

~~~
tass
In this case they're hoping the NSA kept better records than the phone
provider:

"The prosecution had told defense attorneys that they were unable to obtain
Brown's cellphone records from the period before September 2010 because his
carrier, MetroPCS, had not held on to them."

~~~
viraptor
I really hope that they tried to get the records through a court request to
the right people rather then just calling the company and asking for it. I
find it really unlikely that such records don't exist anymore. Phone call
billing is the one thing that brings money to telcos and they're often
processed and analysed. They may not be exposed to public, but not keeping a
backup of them stored at least on some tapes somewhere for years is really
surprising...

------
greeneggs
In the short term, before more safeguards are put in place, it is actually
much more dangerous that this program is public knowledge. When it was a
secret, the government couldn't use the information it gathered in a public
case, for fear of giving up the secret. But now they can use it.

~~~
dietrichepp
Just because it is public knowledge doesn't mean that the government can use
the information to prosecute.

Suppose Alice and Bob are talking about a big drug deal over the phone, and
Carol (working for the NSA) listens in. Carol lets her friend Dan know, and
Dan's a police officer so he goes on a stakeout and catch Alice and Bob in the
act, with $1M of cocaine in the trunk of Alice's car, and $1M of cash in the
trunk of Bob's car. Open and shut case, right?

US case law states that the cocaine is "fruit of the poisonous tree", because
the cocaine would never have been discovered by the police if it weren't for
the illegal wiretap. Therefore it is inadmissible as evidence. The
prosecution's case is sunk, and Alice and Bob go free. (Note that Dan never
committed any crimes, might not be aware of the wiretap, and got good, hard,
physical evidence that Alice and Bob were breaking the law.)

So if the government tries to use an illegal wiretap in an actual criminal
case, it will probably do the prosecution more harm than good. Best chance for
a conviction is to pretend the wiretaps never happened.

Edit: I think a good example here is "Nardone et al. v. United States." In
this case, Nardone was convicted of smuggling alcohol etc. during a first
trial based primarily on evidence acquired through illegal wiretaps. This
conviction was overturned because the wiretaps were not admissible as
evidence. On the second trial, Nardone was convicted again on other evidence.
This conviction was also overturned, because the prosecutors wouldn't have had
this evidence if it weren't for the wiretaps.

~~~
cup
In such a hypothetical scenario would the police then be required to return
the cocaine? Furthermore, would the owners of the cocaine be expemt from
future prosecution. I mean, whats stopping the police from tailing them and
waiting a few weeks before re-arresting them?

~~~
dietrichepp
I am no legal expert, but the purpose of the exclusionary rule is to
discourage police from illegally gathering evidence, not to provide relief.
See WARDEN v. HAYDEN, 387 U.S. 294 (1967)

> Just as the suppression of evidence does not require the return of such
> items as contraband, the introduction of "mere evidence" does not entitle
> the State to its retention if it is being wrongfully withheld. Pp. 307-308.

So just because the cocaine can't be used as evidence, doesn't mean that the
police have to give it back -- it's still contraband. Maybe they would destroy
it if they have no other use for it. But Alice would get her car back, if it
were seized with the cocaine.

As for future prosecution, nobody is exempt, but the prosecution would
probably have to come up with new charges (due the fifth amendment double
jeopardy clause). Waiting a few weeks would not change legal circumstances and
a judge would see right through such trickery, but if I were Alice or Bob I
would keep my nose clean for a while.

------
robomartin
Some have raised the idea that, if surveillance data on everyone were publicly
available it'd be OK. The problem is that this will never include everyone. At
the very least all government employees, from the President to local cops will
be excluded. Beyond that there will be whole groups with varying degrees of
influence who will be outside the system.

I came across an example of how this works a couple of years ago when I came
across a toddler left alone in a car while strapped into her car seat. This
was at the local post office. It was easily 110 degrees outside. The car was
not running (no air conditioner). After about 15 minutes the mother came out
of the post office. I confronted her. She saud there was nothing I could do
about it. I took down her licence plate and called the police. My jaw dropped
when The cops told me they could not help me. Her licence plate was protected
because her husband was a cop. They claimed they could not get any data on
that plate. I was fuming. I called again and asked for a supervisor to come
and talk to me. Two cops came to my home. I had them interview my kids --who
were with me and saw it all-- to get the facts. I got the same story. I told
them that this kid could have died and that I was sure the cop husband would
want to know about it. I got the clear and distinct feeling that pushing
further would have had potentially negative consequences for me. I had to
balance the my indignation with the potential to piss off the brotherhood of
cops and my family's well being and safety. I dropped the whole thing and
threw away the number. I know people who were cops in other countries ad have
heard enough stories in the general vein of "fuck with cops and you'll regret
it" that I had to opt for self preservation.

My point is that there are sub-societies that do not live in the same reality
the rest of us enjoy. The idea that surveillance would be applied and
disclosed equally is, in my opinion, not aligned with reality.

~~~
johnsoft
That truly is mind-boggling. I see cops turn their lights on to run red lights
where I live and it makes me just as mad. One of these days one of them is
going to get T-boned.

I wonder whether this "protection" happened at the state or local level.
License plates are given out by the state, so if you had traveled 100 miles in
some direction but not left the state, and had a different city look up the
plate, would they have told you the same thing?

Your story paints articles like this in a whole new light -
[http://www.nbcmiami.com/news/local/Florida-Highway-Patrol-
Tr...](http://www.nbcmiami.com/news/local/Florida-Highway-Patrol-Trooper-Who-
Arrested-Speeding-Miami-Officer-Files-Lawsuit-184753781.html)

~~~
robomartin
What happened to that police officer should have triggered mass firings and
jail sentences. Every time I post a comment on HN speaking negatively of
unionized government organizations I get mercilessly down-voted. I don't know
if this is because there are a bunch of union thugs reading HN (doubt it) or
brainwashed liberals who support unions out of pure indoctrination and without
much thought. The truth is that these organizations are nasty animals with
unprecedented reach, power, rights and immunity. They almost operate under
their own laws and it is nearly impossible to go up against them. Case in
point, bad teachers ought to be fired mercilessly without pension and those
who abuse children should suffer the same fate. There was a case here in Los
Angeles of a teacher who sprinkled cookies with --don't barf-- his own semen
and fed them to the kids. The teacher's union actually protected this animal's
rights for as long as they could. If the teacher's union is that ugly, imagine
what police unions and even non-unionized government groups must be like.

------
616c
How is this any different than when those big and small call witnesses to
their defense they know will not come. For instance, Milosevic's defense team
in his war crimes trial attempted, moronically, to call former PM Tony Blair
and former US President Clinton as witness. I am sure they knew he would not
show up.

[http://news.bbc.co.uk/2/hi/europe/3613020.stm](http://news.bbc.co.uk/2/hi/europe/3613020.stm)

I also recall Saddam doing similar things in his trial. Is there not a name
for this type of failed legal tactic?

------
cLeEOGPw
I was just thinking - don't get me wrong - but is there any way to know
whether if the surveillance actually protected any terrorist attacks, and if
yes, how much? I think it is theoretically possible that it helped to prevent
many attacks, but government could not announce it because that would reveal
the whole network. It would be best if somebody would leak some documents that
would show the terrorist attack being prevented. That would probably be the
first leak that revealed not the crimes of the government, but actually good
work, that was supposed to stay a secret.

------
e3pi
This issue and future questions described in these comments and comments
posted across HN regarding PRISM NSA suggest the possibility that it will
become illegal to raise questions that arguably threaten DHS, NSA. Something
like the law against threatening the POTUS -not allowed by the 1st Amendment.

------
messick
If this was not a stunt, the lawyer would have just asked the phone company
for their records.

------
znowi
Elsewhere on the Internet :)
[http://i.imgur.com/VGaCBrl.png](http://i.imgur.com/VGaCBrl.png)

