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NSA, DOJ Still Aren't Letting Defendants Know They're Using Section 702 Evidence Against Them

Published: December 4, 2017
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Source: tech dirt

The NSA has never taken its evidentiary obligations seriously. The agency is supposed to inform the court and defendants if surveillance-derived evidence is being used against them. (And it's actually supposed to hand over the evidence as well.)

This just doesn't happen. The NSA encourages parallel construction to obscure the true source of evidence used in court cases. The FBI's access to Section 702 collections makes this much easier. It allows the FBI to present NSA evidence as its own, heading off any scrutiny of the NSA's programs and collection methods.

The NSA was always supposed to hand over this information. It's been mandatory for years. But it doesn't. After it was reported the NSA has misled none other than the Supreme Court of the United States about its fulfillment of evidentiary obligations, the agency briefly began complying with the law. It issued five notices in the span of a year (2013-2014) before going dark again.

It appears the NSA's brief flirtation with statutory compliance was just that: brief, cheap, and completely hollow. A show of compliance was made but the NSA had no intention of acting in good faith going forward. The Intercept is publishing more Snowden docs, these ones confirming the NSA's continued obligation-shirking.

A Uzbekistani man living in the US has just been convicted of terrorism charges -- something that followed several months of interaction with two FBI informants, including one who actually lived with him during the course of the investigation. The DOJ got its conviction, but it did it without fulfilling its statutory obligations.

[J]ustice Department lawyers gained their conviction against Kurbanov after failing to disclose a legally significant fact: Kurbanov’s conversations with his alleged terrorist associate had been captured through PRISM, a National Security Agency mass surveillance program whose existence was revealed in documents provided by whistleblower Edward Snowden. Under PRISM, the government obtains communications directly from at least eight large technology companies without the need for warrants, a type of practice authorized in 2008, when Congress provided new surveillance powers under FISA.

Using this collection program, along with the NSA's interpretation of its statutory obligations, no court anywhere is being informed about the collection itself or its use against defendants. When pressed for answers, the DOJ tends to respond with a hoisting of its national security talisman, which usually wards off additional judicial scrutiny.

The DOJ's oversight -- and the NSA's -- should know something's wrong. It's not as though all of this information can only be gleaned from leaked classified documents.

A nationwide review of federal court records by The Intercept found that of 75 terrorism defendants notified of some type of FISA spying since Section 702 became law, just 10 received notice of Section 702 surveillance. And yet Section 702 was credited with “well over 100 arrests on terrorism-related offenses” in a July 2014 report from the Privacy and Civil Liberties Oversight Board…

Those hyping a clean reauth of Section 702 are prone to pointing at gaudy numbers like that one. But they're also willing to overlook the much smaller numbers showing the NSA isn't playing by the rules. I guess we're just supposed to accept the fact that terrorist prosecutions will never be according to Hoyle. That's the price we pay for security, apparently: a mockery of due process and checks and balances in service of the greater good.

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