Parallel construction is nothing new. The DEA has been a long-time participant in the practice. Documents obtained by C.J. Ciaramella in 2014 included training materials laying out explicit directions for hiding the origin of questionably-obtained intelligence. The DEA has had full accessto domestic phone records thanks to the Hemisphere program. Records obtained via this legally-dubious method have been passed on to local law enforcement agencies with instructions to obscure the origin of "new" criminal investigations.
The FBI has also encouraged parallel construction, most notably with the non-disclosure agreements its forces local agencies to sign before acquiring cell tower spoofers. Agencies are told to keep info about Stingray devices out of court at all costs -- up to and including dismissing charges. Consequently, Stingray deployments have been hidden behind ping requests and pen register orders, preventing courts from examining the origin of the evidence for Constitutional issues and preventing defendants from challenging the legality of the evidence used against them.
Parallel construction goes far beyond Stingrays and phone records. It can involve nascent technology with unproven track records, allowing criminal sentences to be obtained based on very questionable evidence.
Parallel construction also means judges may never evaluate whether government uses of constantly evolving surveillance techniques adhere to the US Constitution and laws adopted by Congress, as is their role in the US system. For example, if the government were to identify a suspect in a robbery by scrutinizing a store’s security video using a new but flawed facial recognition technology it does not want to reveal, it could send an informant to talk to the suspect and report what he said—then suggest in court records that this conversation was how the investigation began. Such possible uses of parallel construction are especially troubling in human rights terms because new technologies may be inaccurate (including, in the case of facial recognition software, for people of certain racial or ethnic groups) or raise new legal concerns. Unless judges are aware that such new technology has been used, they will not be able to assess whether the technology violates rights.
But judges won't be seeing much info on government surveillance means and methods that the government wishes to keep hidden from the public. The DOJ has dodged its evidentiary obligations for years in regards to NSA-derived evidence, despite multiple government agencies having some sort of access to the NSA's collections.
Worse, the courts have encouraged the practice of parallel construction by giving officers free rein to perform pretextual stops. Any real or perceived traffic violation can serve as a pretext for stop meant to discover evidence of some unrelated crime. A 20-year-old Supreme Court decision turned traffic stops into fishing expeditions.
The Supreme Court's Rodriguez decision only slightly mitigates the damage done by the 1996 decision. It holds a traffic stop ends when the stated objective is completed. If an officer stops someone for speeding -- even if the real purpose is to search for evidence of drug trafficking -- the stop is over when the citation or warning is given. What this means in practice is law enforcement has to move faster to find something approximating reasonable suspicion to extend the stop. Slow-walking the stop until a drug dog arrives still works most of the time.
If more courts were willing to hold officers to the spirit of the decision, pretextual stops would become a very precarious way to obtain evidence. Instead, the courts have generally been willing to continue to give the government considerable leeway during pretextual stops.
This is what keeps the lights on in the DEA's Special Operations Division. Known colloquially as the "Dark Side," the DEA's SOD passes on tips to locals, pointing them at DEA surveillance targets while ensuring these local agencies understand they'll have to find another way to come up with the evidence the DEA has already handed them.
Sources consistently describe the SOD as distributing tips to other agencies, subject to a mutual understanding that the tips will not be revealed in court proceedings. Typically, the division does not disclose the original source of its knowledge, even to other law enforcement officers or prosecutors. Rizer explained the government’s perspective after obtaining and deciding to share information that may be useful in a US criminal investigation: “A lot of times, you don’t want the bad guys to know how you got [the] information…. You want to give [law enforcement] just enough” to start an investigation, but “not enough to know where everything came from.”
This generally leads to pretextual stops, known by a number of unofficial nicknames synonymous with parallel construction:
The documents Ciaramella obtained indicate that the use of “[a] wall off or pretext stop” is an accepted tactic. Human Rights Watch has also identified numerous federal and state judicial decisions in which the government has admitted, after the fact, to having carried out what are known as “whisper,” “wall,” “walled off,” or “wall off” stops. It is unclear how the government decides whether to disclose the fact a traffic stop was pretextual on its own initiative during proceedings: in at least one case Human Rights Watch identified, the disclosure of a “wall stop” was inadvertent (evidence emerged in a New Mexico federal trial that an officer had mentioned a “whisper stop from DEA” to a dispatcher while unaware that he was being recorded). In another case a defendant who had been convicted in Arizona state court only found out the traffic stop in his case was a “whisper stop” requested by the DEA after his conviction, when pertinent records were later disclosed in a California federal court.
"Whisper" refers to federal tipsters who are not to be exposed in court. "Wall stops" refer to building a "wall" between the evidence obtained via the pretextual stop and its true origin via DEA sources. In both cases, nothing about the original evidence can be challenged. Evidence obtained via bulk surveillance or warrantless intercepts remains hidden. The trustworthiness of confidential informants cannot be questioned. It remains walled off from the court and defendants, forcing them to work only with what was derived from a traffic stop that likely would not have happened without the intervention of a government agency whose name never appears in court documents.
To fix the problem of parallel construction, Human Rights Watch suggests a legislative fix. Unfortunately, as solid as the recommendations are, there's roughly a zero percent chance a bill like this would make its way to the president's desk.
Congress should… adopt legislation requiring that all executive branch agencies be treated as part of the prosecution for the purposes of obligations to disclose exculpatory information. Additionally, it should evaluate the judicially developed doctrines (such as applications of the “independent source” doctrine, interpretations of Whren, and the doctrine of collective knowledge) that may facilitate law enforcement’s use of searches and seizures for parallel construction purposes and consider imposing restrictions accordingly.
To address the possibility that parallel construction is used to conceal potentially unconstitutional surveillance, we recommend that Congress adopt legislation strictly requiring the executive branch to notify defendants in all criminal cases of any employment of investigative techniques involving the surveillance of communications or metadata, or the compilation or monitoring of other personal data such as biometric data. Congress should also adopt similar requirements for other proceedings in which individuals’ rights are adjudicated (such as immigration proceedings). Such legislation should impose requirements on prosecutors to determine whether such techniques were employed. In general, Congress should exercise stronger oversight over surveillance and other forms of data-gathering that take place under intelligence authorities.
The first recommendation would make all government agencies answerable to discovery requests. This is an important fix, and one that would face a less of an uphill battle in Congress. Currently, any agency that has passed on info used in parallel construction can simply claim its not part of the prosecution and is therefore not required to hand over information to the defense. This would force agencies to search for and produce documents related to the origins of the evidence handed over to local agencies. Or would in theory. The DOJ has spent years dodging evidentiary obligations for Section 702 cases (another place parallel construction is a common practice), so it's apparent the Justice Department picks and chooses which statutory requirements it will follow. Another law on the books won't make much of a dent.
As it stands now, the system will allow the government to continue to prosecute people while withholding information pertaining to questionably-obtained evidence. Supreme Court decisions on traffic stops haven't made things much better, even with more recent decisions adding a bit back to citizens' Fourth Amendment protections. The end result is ugly: the government can lie with impunity, making a mockery of the Fourth Amendment in the process.
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