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FBI Told Cops to Recreate Evidence from Secret Cell-Phone Trackers (theintercept.com)
310 points by nomoba on May 8, 2016 | hide | past | web | favorite | 69 comments

Suggestion: stop calling this "parallel construction" and start calling it evidence laundering.

"...FBI is mandating manufacture of a whole new chain of evidence to throw defense attorneys and judges off the scent."

Fraud works. Perjury even. This is lying to judges. Pure and simple. Every case should be thrown out or discredited and overturned. It's the only way to restore true balance to justice and let it be known that pure lying will not be tolerated, from anyone, ever.

Edit: it's the same as planting evidence. I've been trying to differentiate it in my head, and you can point to actual guilt, but procedurally (and in the name of justice) it's the same to me.

It's not the same as planting evidence. Planting evidence is fraud. It's exactly what it is. It's an illegal search and then lying about it.

Judges do throwout illegally obtained evidence, the problem with this is, that the judge can't tell if it was illegally gained or not.

Why not just "fabricating evidence"?

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.


And an illegitimate evidence chain is called "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."

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!

Well, that's the idea behind "parallel construction" -- a clean evidence chain is built up in parallel. That one isn't exactly inadmissible and there is no proof linking one chain to the other.

Furthermore, there are protective policies where public prosecutors are given the discretion to exclude evidence gained from "confidential" sources (eg: undercover cops) and that revealing such evidence to the public would negatively impact current/future investigations. Such evidence can be revealed privately to the necessary parties (eg: judges), but I'm not familiar with these procedures.

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.

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.)

No. The evidence itself, and all evidence derived from that evidence is thrown out. You conduct an illegal search that finds the murder weapon at the suspects house, you don't get to enter the murder weapon into evidence. You don't get to introduce that the weapon had the victims blood on it, because the only way you know that is that you got the weapon illegally. You don't get to introduce that the weapon had the suspectms fingerprints on it for some the same reason.

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.

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.

The whole point is that they are finding real evidence through illegitimate means. If you try to say they are fabricating evidence out of whole cloth, no one will believe you.

But they are. It might be OJ's glove, but "we found it in his glove compartment" is a fabrication. It has nothing to do with guilt.

In this case, it's like going from "the stingray told us you were in the house" to "we interviewed your neighbors and they say you were in the house". Interviewing neighbors is legitimate and can be used as evidence, but they wouldn't have interviewed them at all if they didn't use the stingray.

The lie would have to be comprehensive enough to justify conducting interviews in the neighborhood and everything that leads up to it, so even with the best of intentions (stop laughing) - it is very easy to unintentionally fabricate a lot of evidence. There isn't really any need to speculate though, the DEA proudly listed success stories for the "Hemisphere Project" - just look up the public information about those cases and see what lie they used for probable cause.

Better example: it's going from "our illegally obtained telephone intercept told us that your red 2013 Kenworth T800 headed north on I95 from Atlanta to New York this morning, with 2MT of cocaine in the fuel tanks". To telling the driver that "it looks like one of your tires is low", and working up to a search.

What's the difference between 'the stingray told us' and 'we got an anonymous tip-off that you were in the house' which is then verified by interviewing all the neighbors and only the interviews are presented to the court?

In this case, "We got an anonymous tip" is a lie, and "we used Stingray" is not a lie.

Receiving anonymous tip isn't a search. Wiretapping -- which is what Stingray does -- is.

It's because the evidence turns out to be real (ostensibly), they just fabricate how they obtained it.

They get information which leads to an arrest. Once they get the arrest they construct an alternative explanation for how they got the original information in order to avoid scrutiny about how they originally got the information (such as the Sting Ray).

The information they got from the Sting Ray is, ostensibly, true/actionable but the Sting Ray itself is questionably un-constitutional. So instead they create a fake evidence trail leading to the information they got from the Sting Ray in order to explain any and all information actually obtained from a Sting Ray.

Like someone else said, it's kind of like evidence laundering. "How we got this is bad, so instead let's create a fictitious string of events to add legitimacy to it."

They are not fabricating it. But it is like reading a crime novel knowing who the murderer is. When you already have the ending - you can find your own path with the clues left inside the book.

I like this term. Let's start using it everywhere.

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.

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.


"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.

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.

I have yet to encounter a person who doesn't keep a pulse on tech / security and also believes parallel construction exists. 95% of Snowden revelations are still in conspiracy theory territory and aren't even Snopes worthy to most.

It hasn't been "finally" documented, the documentation has been out for almost three years.

It is already illegal. This behavior needs to be punished.

> “This is the first time I have seen language this explicit in an FBI non-disclosure agreement,” Nate Wessler, a staff attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project...

Surprising, no. Surprising to see it in writing from the FBI? Yeah, a little.

The unfortunate fact is that the FBI doesn't mind putting it in writing because any vestige of justice on our legal system has been swept away. Agents of the government understand that they are completely above the law, so much so that they don't even bother going through the motions anymore to pretend otherwise.

OK, so given that the general populous is now starting to acknowledge this abuse of power... how do we fix it? All three branches of governance are falling outside the public's control and people no longer vote with a long-term and open mind. How do we get people to step down the vitriol and work with each other towards the common good?

The general populace isn't starting to acknowledge the abuse. Some niches are, though, and that's why we even are able to talk about parallel construction in this much detail. It still requires people to read court transcripts and find these nuggets of information about law enforcement practices and policies, after which they tell whoever is listening (typically on Twitter in my experience).

You don't and you can't. You accept it and adjust behavior accordingly.

> law enforcement a greater threat > made illegal

See a problem here?

It's already illegal by any sane interpretation of the law.

What does it even mean to make law enforcement behavior "illegal"? Who would enforce it? Obviously those in charge are either happy with it as it is or feel powerless to stop it.

It is illegal.

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))

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

What does that mean practically?

Whatever they want it to.

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.

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.

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.

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.

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?

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".

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...

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?

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.

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.

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

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).

"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.

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

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.

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?

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."

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"

> 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.

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?

> Like they have to put a police officer at the right place at the right time.

"Right place at the right time" implies it was an accident, and that is a lie. They're lying in court and that should be illegal.

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.

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

Or who they want to catch.

Must have war to bring peace, etc. I even hear this from anarcho-capitalist who blame the government for everything, in effect to get rid of inherently coercive government violent revolution is probably necessary.

What I think is naive is the idea that the only bad kind of coercion is from governments, as if there's no such thing as economic coercion, or psychological coercion. And further is naive that it is possible to totally get rid of it.

It's hard to say if the drop in terrorism related searches was due to the chilling effect or if people lost interest in the idea of terrorism.

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