
FBI Told Cops to Recreate Evidence from Secret Cell-Phone Trackers - nomoba
https://theintercept.com/2016/05/05/fbi-told-cops-to-recreate-evidence-from-secret-cell-phone-trackers/
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btrask
Suggestion: stop calling this "parallel construction" and start calling it
evidence laundering.

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evan_
Why not just "fabricating evidence"?

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ihsw
It's called spoilation of evidence:

> The spoliation of evidence is the intentional, reckless, or negligent
> withholding, hiding, altering, fabricating, or destroying of evidence
> relevant to a legal proceeding.

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

And an illegitimate evidence chain is called "fruit of the poisonous tree."

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

That said, the proof of a "poisonous tree" is itself difficult/impossible to
obtain through legal means. Generally the message they send to anyone
attempting to reveal the illicit nature of the evidence is told "even if you
try, your proof will guaranteed to be inadmissible."

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themartorana
Why would a judge throw out evidence of illicitly gained information? Doesn't
that lead to exactly where we land here with this article?

Edit: thanks for the definitions, nonetheless!

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jonathankoren
Why throw out illegally gained evidence? Because it's pretty much the only
censure a judge can do, and it's a damn powerful one. Yes, evidence laundering
is a problem when it come to warrantless surveillance, but simply throwing up
your hands and saying "Well, I guess anything taken from any method and
without court approval is okay. I guess judicial oversight is an antiquated
18th century idea," isn't the answer.

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themartorana
I think you misread me. Parent to my original post said information indicating
evidence was ill-gotten would be thrown out, not the evidence itself. That
makes it impossible to argue the evidence was obtained illegally. As far as I
can figure it would lead to what you're talking about, which is madness, so I
was asking why a judge would not allow proof evidence was obtained illegally.
(Basically, I totally agree with you and am confused as to why a judge would
not be.)

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ghkbrew
I think what he meant was that proof that a particular piece of evidence was
illegally obtained is likely to necessarily be illegally obtained as well.
Thus it will be thrown out itself before it can used to get the original
evidence thrown out.

Or at least that's my interpretation of the comment in question. I have no
idea how true it is.

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jonathankoren
Yeahs don't understand what that means. Part of the introducing evidence into
court is to describe its provenance. If the chain of custody breaks, then the
defense can easily attack it as being tampered with.

The only way evidence of a coverup could be illegally obtained would be if the
defense somehow placed an illegal wiretap on the police department or
prosecutor's office, which seems really implausible.

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devishard
Why is this surprising to anyone?

It's time to realize that our own law enforcement is a greater threat to us
than terrorists abroad. This behavior needs to be made illegal.

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TaylorAlexander
This comment is on every post where something like this is revealed.

Yes, we "all" have known that parallel reconstruction has been going on.
Except for the skeptics who require hard evidence of its occurrence. Well, now
we have evidence.

This isn't about the practice being surprising. It's about the practice
finally being documented.

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neilk
Yep.

"Why is this surprising?" There are reasons to discuss it other than surprise.
Better evidence may allow for official reactions, inquiries, or prosecutions.

"Is anyone so naive that..." Yes, we weep for our lost innocence. Now we see
that your jaded nihilism was justified all along. Forgive us.

"Of course, nobody really cares..." Back that up with stats. Are you _sure_
nobody cares? Are you sure that is a permanent state of affairs? If you're
also asking "Why is anyone surprised?" that's acknowledging we've got a delta
in collective interest here, so the complaint is self-canceling. And how many
people's attention is needed? A very vocal and effective 5% of the population
can get a lot done.

"Of course, nobody can do anything..." Despite various pronouncements of the
end of history, things continue to happen.

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themartorana
Just to your last point, history ends for most of us when we expire. It is
hard for me to see, possibly halfway through my life, when or how this course
corrects, considering the current balance of money and power.

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ikeboy
How far does the "fruit of the poisonous tree" doctrine go? If someone is
caught using illegal evidence, and then let go because of that, can the police
follow them around to see if they commit more crimes, or is that all poisoned
(because if the original evidence hadn't been obtained, they would never have
found this person to follow)? Would they need to wait until the person came up
in an entirely unrelated lead? Would they be able to add the information
"person was previously let go on technicality for crime X" to a database which
generates leads when cross-referencing other data (e.g. people in proximity to
a crime, which might be crossed with known criminals? (I don't know if this is
actually done))

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greenleafjacob
The doctrine is subject to four main exceptions. The tainted evidence is
admissible if:

> the chain of causation between the illegal action and the tainted evidence
> is too attenuated; or

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ikeboy
What does that mean practically?

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fiatmoney
Whatever they want it to.

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ikeboy
They is the courts, and the criteria sound like they come from precedent, so I
want to know what cases created that precedent to know how it should be
interpreted.

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fiatmoney
You're missing the point. "Too attenuated" presumably does have case law, as
do things like "substantially related to a compelling government interest" or
"probable cause". Those have magnificent, overflowing volumes of decisions
enumerating whether they apply to particular circumstances. And yet, oddly
enough, it works better to reason backwards from the desired conclusion in a
particular case to the most convincing reasoning that could support it, than
the reverse.

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ikeboy
You're saying that cases are decided by the judges' views, a not uncommon
position. However, there are limits to how far this goes: if a case is clearly
against precedent and the judge is made aware of that, they'll usually not
deviate.

If you disagree, feel free to present reasoning or evidence: mere assertion
won't help.

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fiatmoney
Certainly, precedent helps. Who sets precedent? Higher courts. How do they
decide how to rule? See parent. Who enforces their precedents against
themselves? Well, no one.

A precedent goes against what you wish to conclude? Distinguish why it doesn't
apply in these circumstances, depending on how much you fear being overruled.
Keep doing that, until it swallows the rule, if you wish the rule to go away.
In things like evidentiary rulings, you can _always_ distinguish the
circumstances, until you go from "a man's home is his castle" to "I smelt
marijuana & kicked the door down".

In practical & long terms, for issues of government power in particular,
predicting how a court will rule is not best done by looking at plausibly
applicable precedent.

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ikeboy
Supreme court does overturn precedent occasionally, but this is extremely
rare. Most of the time cases never get to the supreme court because they've
already been ruled on in other cases.

Do you have any particular evidence that courts frequently ignore precedent in
favor of their own wishes?

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fiatmoney
Look at the shift in law over time, which should be evidence enough. For
instance, from Bowers v. Hardwick to Lawrence v. Texas, or Roe v Wade to
Planned Parenthood v. Casey, in < 20 years.

As I said, it is usually the case that precedent is distinguished into
oblivion rather than explicitly overruled. Only very limited technical issues
are "settled law".

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woJW1OrH73yE
It talks about Kennard Walters as a success case in the link to the hemisphere
program. I decided to look this up.

Is this the same case? [http://www.plainsite.org/dockets/10r51h1ls/california-
southe...](http://www.plainsite.org/dockets/10r51h1ls/california-southern-
district-court/usa-v-walters/)

I'm not versed well enough in these things to accurately describe, but it
looks like there was a motion for discovery, and the case was effectively
dropped a week later?

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rcthompson
Suppose that instead of the secret cell phone tracker evidence and the
parallel construction, it was an undercover witness and a random bystander
witness. Instead of having the undercover officer testify in court and thereby
reveal themselves, the cops instead use the undercover witness's information
to locate the bystander (e.g. the undercover witness remembered seeing the
bystander and gave the police his description to help them find the
bystander), and they have the bystander testify in court instead of the
undercover witness, and they never say at the trial how they found this
witness. Are the police allowed to do this? Should they be? If they are, is it
any different from "parallel construction"starting from secret cell phone
evidence instead of secret witness testimony? (I'm genuinely curious. I don't
know the answers to any of these questions.)

Edit: I guess in order to make the analogy more accurate, I would have to
specify that the undercover agent knows they did something illegal that would
make their own testimony inadmissible as evidence, and this is the motivation
for finding the bystander.

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jonathankoren
I guess you could do that. The key difference between this and the Stingray
parallel construction is that the random bystander is a legitimate witness
with no connection to the police. Now if the police called up some friend and
said, "Hey, I meet me on the corner of blah and blah at noon tomorrow, knowing
that a crime was going was going to take place there and then, then that's
something else.

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kelvin0
It's awesome to see an episode of 'The Wire' become an actual headline.

~~~
dredmorbius
Many episodes of _The Wire_ were headlines. Or ought have been.

See David Simon's "Audacity of Hope" speech. One version of it at UC Berkeley
on YouTube.

(Simon's a great writer and has wonderful ideas to express. He's an _abysmal_
public speaker. I actually edited out all the "ums" and "ers" from that, and
cut it by 10 minutes (70 minute preso).

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chinathrow
"Privacy advocates have long warned of “parallel construction,” in which
investigators cover up information obtained without a warrant by finding other
ways to attribute it — never allowing the source of the original lead to be
scrutinized or subject to judicial oversight."

Get used to it. Or fight it.

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_rknLA
Relevant: [http://www.wnyc.org/story/stingray-conspiracy-theory-
daniel-...](http://www.wnyc.org/story/stingray-conspiracy-theory-daniel-
rigmaiden-radiolab/)

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optforfon
Like it feeeels wrong.. but I can never articulate what the problem is with
parallel construction. Can someone give a quick explanation of why?

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drjesusphd
It short-circuits the fourth ammendment, which protects against unreasonable
searches. The way this is enforced in the real world is that evidence is
thrown out of court if it was obtained in an unlawful search. With parallel
construction, you render useless the _only_ enforcement mechanism for the
fourth ammendment.

Not to mention the deception. In order to use parallel construction, the
police need to make up a story about why they began investigating. By
definition, parallel construction means that they will lie in court about
this.

The courts really need to wake up, or they will continue to be impotent
lackeys of the executive branch.

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optforfon
Right but the "made up story" has to be legally sound. Like they have to put a
police officer at the right place at the right time. How is that a bad thing?

Like you can still have information so private that you can't build a parallel
construction - right?

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jonathankoren
They only put the cop at the right place and at the right time, because they
chose the place and time ahead of time.

You will never have information that's so secret that you can't build a
parallel construction, because you always create a parallel construction that
gives the appearance of random chance. "Well, your honor, we decided to setup
a traffic safety roadblock stopping every blue car, and when the defendants
stopped they started acting suspicious, and then it just happened that a k9
unit that was returning from delivering coffee alerted on the car. At which I
point I searched the car and found the evidence. Somedays, we just get lucky."

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optforfon
what...? Your example is a convoluted extension of the police-officer example
except you added the dog element which I think most people agree is messed
up... but that's a separate unrelated issue to address.

I'm saying if you have a private/secret meeting in your basement about how to
overthrow the government there is no parallel construction you can make to
intercept that. If you have secret files on your computer you can't have cops
"accidentally" bump into them.

I'm really doubting "you will never have information that's so secret that you
can't build a parallel construction"

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drjesusphd
> have a private/secret meeting in your basement

> have secret files on your computer

Do any of the participants have any mobile phones on them? Are there any
windows in the basement? What do you mean by "secret files"? Do you mean
encrypted? How do you know it's not a compromised service/protocol?

I think you underestimate what present-day technology is capable of.

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optforfon
Sorry if I wasn't clear enough. What I'm illustrating is that parallel
construction doesn't allow the government to use it's full force to make an
investigation. They can't "accidentally" search your computer or
"accidentally" track you phone or "accidentally" monitor you traffic. That's
fundamentally different from a police van "happening" to be at the bank that's
about to be robbed or something b/c that could have happened anyway. Do you
see the distinction?

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programmer1234
Part of Stallman's motivation for starting the free software movement was that
your computer is an extension of your mind, and ubiquitous computer
surveillance is basically the same as Orwell's thought police. The chilling
effect is real, as demonstrated by a recent study that showed a drop off in
terrorism related searches after the Snowden leaks. I freely research
terrorism though, because I'm not "the type of person who would do something".
So I basically rely on racial, ethnic, and economic discrimination to feel
secure about what I search online. I just don't understand how James Comey and
the FBI think that they can make us all safer by turning into criminals
themselves.

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themartorana
When they think we're all criminals, it's just a matter of degrees and
justifications.

~~~
dredmorbius
Or who they want to catch.

