These lawyers and courts are no more privileged to secret data from the NSA, the military, or any of the other classified source today, then they were 1 year ago, 10 years ago, etc.
Those courts and prosecutors have no access to classified datastores of the NSA.
That data is classified and protected by law.
What you are quoting is completely something else, and just references the data the prosecutors have on hand that is gathered and developed as part of the investigation.
The defense team doesn't need the data, they only need to show that the government has data that it's withholding.
> What you are quoting is completely something else, and just references the data the prosecutors have on hand that is gathered and developed as part of the investigation.
IANAL, but Solove is arguably the nation's top privacy law expert (along with Jeffrey Rosen, who is a professor at the same university) so I'm assuming he knows his stuff.
The data is classified and protected by law, yes, but there are other equally (or more important) laws that say the government is required to hand over all potentially exculpatory evidence to the defendant.
Which law trumps? That's for the courts to decide.
The clever tactic here is that it may not matter if they gain access to the records or not. That's less important than it seems. All they have to do is plant a seed of doubt in the jurors.
That's the step that's going to make this all rather crazy. I could claim my classified phone records put me on the other side of the country, whether it's true or false. It'll still create that doubt, and the gov't will deny the records exist either way.
You have a point. However, the game has changed. Defense attorneys will allege that reasonable doubt could be shown if only they could present as evidence the NSA data most people believe exists. Juries will more likely find for the defendant, then. Or the prosecutors will claim the opposite. The turmoil in courtrooms will fuel a groundswell of support for declassifying the NSA data.
These lawyers and courts are no more privileged to secret data from the NSA, the military, or any of the other classified source today, then they were 1 year ago, 10 years ago, etc.