Posts Tagged ‘wiretaps’

Standing to Sue the NSA?

Monday, November 2nd, 2015

A couple of weeks ago, Wikimedia’s lawsuit against the NSA got thrown out. Wikimedia (and the ACLU, NACDL, Amnesty International, and many more) claimed the NSA was violating everyone’s rights with its “upstream” surveillance of internet communications. The court dismissed the case because nobody could prove that they had “standing” to bring the case in the first place. The plaintiffs failed to establish that the NSA had actually intercepted any actual communications. They relied on statistics — there are gazillions of communications that go over the wires being monitored, so there must have been improper interceptions. The court said “must have been” isn’t good enough, there isn’t standing, good day.

This isn’t the first time that’s happened. A few weeks before that, a Pennsylvania divorce lawyer had his case against the NSA shot down for the same reason — he couldn’t prove that he himself had been harmed, because he couldn’t show that any of his communications had actually been intercepted. So no standing, case dismissed.

These cases rely on the 2013 Supreme Court ruling in Clapper v. Amnesty International, which held that merely “possible” injury isn’t enough to assert standing in a case like this. You need to show that the injury is real, and either actually happened or is truly imminent. Even if there’s a reasonably good chance that your communications were intercepted, that’s not good enough. There’s no res ipsa loquitur when it comes to standing here.

Of course, that’s nonsense, because the whole doctrine of res ipsa is basically “yeah, the plaintiff can’t prove you harmed him, but come on! It’s pretty obvious you must have.” It’s rebuttable, but the doctrine at least lets the plaintiff into the courthouse. [Yes I know Fourth Amendment and First Amendment jurisprudence aren’t exactly the same as that of negligence in Torts, but come on.]

It doesn’t matter, though, because this is what the Supreme Court always does in cases like this. None of this is a surprise to anyone.

In Clapper, the appellants wanted the Court to say  §1881a of FISA is unconstitutional, as is the NSA’s surveillance of communications. The Supreme Court did not want to deal with these issues. This “no standing” decision is their way of saying that.

An important fact about the Supreme Court is that it doesn’t have to take every case that comes its way. It gets to pick and choose, for the most part. They exercise this discretion, for the most part, based on purely nonpolitical considerations such as how busy they are. Or because a given case isn’t the right one to make a ruling with, and they’re waiting for a better one to come along. (Sometimes they do appear to cross the line with their discretion, see Bush v. Gore, and when that happens the entire authority of the Court gets called into question. A lesson that has to get re-learned every now and then.)

Prudence is another consideration that the Court takes into account when accepting or rejecting a case. In other words, “we’d better not get involved in this issue.”

If you look back at all the times the Court has skirted an issue by saying a party had no standing, it’s hard to find a definition of standing that reconciles them all. I’ll go so far as to say that they are irreconcilable. There is no consistent theory that explains them all. Except, that is, the consideration of Prudence. When you take into consideration the Court’s desire to not go sticking its nose in a sensitive matter, everything becomes clear.

It’s been the Court’s practice to do this for a long time, now. This very fact was taught in the very first class of my first year of law school, back in 1993, and it was already an old habit long before then. So it cannot have come as a surprise to anyone. I’ll bet you a dollar that even if you did find proof that your personal communications had been intercepted — and after Snowden and all the other post-Clapper revelations, it’s easier to meet some of the Court’s conditions — they’d still find a way to say you lacked standing. They’ve left themselves plenty of wiggle room, there.

That doesn’t mean you don’t keep trying! Just don’t be surprised if they keep refusing to get to the merits. They don’t want any part of it.

On the DEA’s Special Operations Division

Monday, August 5th, 2013

It should be clear by now that I’m no apologist for governmental overreach or law enforcement abuses. But after the news broke this morning about the DEA’s Special Operations Division, and everyone has been freaking out about yet another erosion of the Fourth Amendment, I feel like I ought to tone it down just a little bit. I have a little inside info here, because back in my days as a narcotics prosecutor, I dealt with them. (Don’t worry, I’m not going to divulge anything I shouldn’t.)

A lot of international drug trafficking takes place outside our borders, so the idea was to take advantage of intelligence data to make the drug war more effective. You just can’t use the intelligence  data in court. So SOD was formed as a way to make the information known, without compromising criminal investigations.

As reported, what the SOD does is get evidence from sources that can never see the light of day in court — usually from intelligence services here and abroad. Wiretaps conducted without regard to Title III because they’re not intended for criminal prosecution, top secret sources, and the like. If something comes up about some big drug trafficking — not at all uncommon to hear about in the intelligence world — then the SOD hears about it. Then they clue in law enforcement. It’s up to law enforcement to figure out how to gather the evidence legally. SOD’s involvement and its tips are rarely shared with prosecutors, and almost never with the defense or the courts.

So there’s a lot of understandable brouhaha that Obama’s eroding our privacy, the Fourth Amendment has been eroded even further, it’s unfair to the defense, this country’s going to hell in a handbasket, etc. People are concerned that law enforcement is “laundering” its evidence so it can use stuff that should have been inadmissible, and lying to everyone to cover it up.

First of all, this didn’t start on Obama’s watch. It got started under Clinton, back in ’94. And its existence has been fairly common knowledge in criminal law circles ever since. It’s even been reported on before.

Second of all, the whole “evidence laundering” thing isn’t quite accurate.

When I was dealing with them, back in the late ’90s and early ’00s, we in my office only half-jokingly called them “the dark side.” It was well understood that you couldn’t build a case off of their information. We’d never know where their information came from, for one thing. Without a source to put on the stand, the information couldn’t even be a brick in the wall of any case we wanted to construct.

And to be fair, the SOD folks themselves were very clear in their instructions: Their information was not to be used as evidence. It was only to help us figure out what we were looking at in an investigation, and let us know about other things we might want to be looking for. It was all along the lines of “how you gather your evidence is up to you, but you ought to know that this Carlos guy you’re looking at is part of a much larger organization, and his role is… and their shipment chain appears to have nodes here, here, and here… and your subject Gilberto over here is looking for a new local dealer.”

So what would you do? You’d realize Carlos wasn’t the top of the food chain, and start looking at your evidence in a different way, maybe change the focus of your investigation. And you’d pay more attention to traffic going to certain places. And you’d try to get an undercover introduced to Gilberto as his new dealer. You weren’t being spoon-fed evidence, but being clued in on where to look for it and what it might mean.

The Reuters article everyone’s citing quotes former DEA agent Finn Selander as saying “It’s just like laundering money — you work it backwards to make it clean,” in reference to a practice called “parallel construction.” He makes it sound like law enforcement obtained its trial evidence illegally, and then went back and tried to think up a way to make it look admissible. That would indeed be cause for much concern. And you’re kidding yourself if you don’t think that’s something police do on a daily basis.

But that’s not what “parallel construction” means. It means “dammit, I have this evidence that I cannot use. Is there another way to go get this evidence that is lawful? Why yes there is! Let me go do that now.”

So let’s say you know that a blue van with Florida plates XXX-XXXX will be going up I-95 this weekend, loaded with heroin in a variety of clever traps. But you can’t just pull it over because you can’t introduce that information in court for whatever reason. Instead, you follow it in a series of unmarked cars, until it makes a moving violation. Which is very likely to happen, no matter how careful the driver is (it’s practically impossible to travel very far without committing some moving violation or other). You now have a lawful basis to pull the van over. And a dog sniff doesn’t even count as a Fourth Amendment search, so out comes the convenient K-9. And tada! Instant lawful search and seizure, and the original reason why you were following him is not only unnecessary but irrelevant.

It doesn’t matter if the original reason you wanted to pull the van over came from the dark side or from an anonymous tip or from a hunch. It’s a legal stop, and the original reason doesn’t matter. This is a very common scenario in day-to-day law enforcement, and isn’t specific to the SOD.

Or think of this equally very common scenario: Someone inside an organization has given you probable cause to go up on a wire and to arrest a lot of people. But you don’t want that person’s identity to ever come out, or even raise any suspicion that there was ever an inside informant. So you get that guy to introduce an undercover. Who maybe introduces yet another undercover. And you only use information that the undercovers themselves develop to build your probable cause and build your case. The original informant’s identity need never be disclosed.

Those examples are parallel construction. It’s not about going back and laundering your evidence. It’s about going forward to gather it lawfully this time.

I’m not saying the dark side isn’t cause for concern. Law enforcement and intelligence are supposed to be two entirely different things. We have given the government amazing intelligence-gathering powers on the understanding that it won’t be used against our own citizens, and won’t be used for law enforcement. A very good argument can be made that the SOD program subverts that super-important limitation on government power.

But it’s harder to argue that it violates the Fourth Amendment or gets evidence in court that should have been inadmissible.

If you’re gonna complain about it, at least complain for the right reason.