I object to parallel construction because it warps NSA's incentives and encourages them to develop deeper domestic capabilities.
Having said that: it's worth understanding what parallel construction actually is.
Parallel construction does NOT allow law enforcement to:
(a) Introduce evidence that is the product of NSA surveillance
(b) Literally manufacture probable cause to effect a search to generate introducible evidence
In order for an LEO to act on data from a surveillance source, they must not only be "at the right place at the right time" (which is what surveillance allows them to do), but, once there, discover probable cause to effect a search. That's why you see slides in this deck about how long you can stop a car in a traffic stop; one of the pitfalls of trying to launch a search from a traffic stop is that if the stop exceeds the duration allowed for a detention without arrest, all the evidence generated after that time period elapses is excludable.
Obviously: (i) the probable cause mitigation is damaged by drug dogs ("our search was authorized by this dog over here"), and (ii) all search mitigations are damaged by the fact that they come into play only once someone is arrested and threatened with prosecution. Those are both very serious, important, valid objections. However, I contend that they are objections to the entire process of evidence collection with or without surveillance. Judges need to stop pretending that dogs can judge whether a search is reasonable. Prosecutors have too much unchecked power in our system.
Here's an extremely detailed cartoon flowchart of how 4th Amendment protections come into play (or are thwarted) in the real world:
Right so when you get arrested at that traffic stop, all you need is about $15-20k+ for lawyer, tons of time in courtrooms, bail money, potentially jail time in between, months/years stressing a criminal charge...and hopefully some decent evidence you can convince a judge or jury your rights weren't infringed.
There are a ton of externalities that goes into proving the state wrong and protecting civil rights at the court level. The majority of drug convictions happen to people in lower socio-economic positions (if not, asset seizure will ensure it). So the fact lawyers are capable of destroying the DEA's evidence in a courtroom doesn't make me feel any better about the situation. Reducing the use of drug dogs is a good start, far too many false-positives.
Just so we're clear that we're on the same page, I'll point out that I wrote the same thing in my comment, and agree that it's a real concern.
On the other hand, it's also worth understanding that "parallel construction" (it didn't always used to be called that) isn't new. It's also what happens when the DEA manages to get an informant placed high up in a cartel or organized crime operation. You want to be able to exploit your source, but you don't want to burn that source, because they'll keep being valuable going forward.
At this point, making it easier for law enforcement to discover crime probably harms more people than it helps.
Here's a thought experiment: What if law enforcement was perfect? That is, every time someone broke a law, the state knew and could arrest them. Let's also assume this technology somehow disallowed even the slightest peek into an individual's legal private life. After a week under such a system, we'd all likely be jailed.
There are so many laws; so many unjust laws, that we're all criminals. Giving law enforcement more tools just puts the DA in a position of greater power.
That's where HN and I part ways. I understand that HN generally believes that the police are a force for evil. Lots of smart people who know more than I do about criminal justice agree.
On the other hand, I tend to believe that crime victimizes far more people than law enforcement does, and that not only is it not a bad idea to make LEOs more efficient using technology and better intelligence (though not foreign surveillance intelligence!), but that it is a moral imperative for society to do so.
Where we can probably join up again in principle is that our specific criminal enforcement priorities make this whole thing way more fraught than it should be. I agree that criminal charges are an instrument of institutional racism, and I agree that drug prohibition is harming society far more than drugs themselves do.
I don't buy the "we're all criminals" line at all. And yeah, I read Silverglate's book.
The question of whether "we're all criminals" isn't a political statement, it's a question of whether or not there are laws that we are more-or-less objectively violating without intent or knowledge. I have to say "more or less objectively" because if you take the hard-line stance of "you haven't violated the law until you've been convicted" you can skate away from the problem, but most people will still agree that we can reasonably talk about a law being violated even it has never resulted in a conviction.
It's either true or it isn't. It's arguably worse that nobody even quite knows whether we're all committing felonies than knowing the answer for sure. We shouldn't even be having a "debate", it should be readily obvious.
Given that crime is at a low of several decades, what exactly do you think society has a "moral imperative" to do to make law enforcement more "efficient"? What problem do you really have with the NSA's involvement, or is it just that you think such eavesdropping should be done by domestic-focused agencies?
Crime is at a low relative to a spectacular peak of crime so high that it challenged the safety of privileged rich white people in major cities. It remains a scourge of the underprivileged.
It's not just that I think "eavesdropping should be done by domestic agencies", but also that I think eavesdropping should be done under the aegis it has always supposedly been done under, one that acknowledges that eavesdropping is the most intrusive investigatory act the government can engage in, that monitors the private thoughts of individuals and in many cases causes defendants to effectively testify against themselves.
It would be difficult for a domestic law enforcement agency to build anything resembling the infrastructure NSA has built, for exactly that reason: the cost/benefit ratio just couldn't ever work out. That's why NSA/FBI "fusion" is so scary to me; it repurposes an infrastructure that has a workable cost/benefit because it's budgeted for in a military context. That's what I mean by incentive problems.
But once again: "parallel construction" isn't new. It's also what happens when highly-placed criminal informants help make cases against organized criminals; to use the CI themselves as part of the chain of evidence would be to risk losing that CI. I'm not sure how much the practice bothers me in this context. And, like I said: other parts of the "parallel construction" story bother me a lot more than the NSA evidence; for instance, our new unelected canine prosecutors.
> "parallel construction" isn't new. It's also what happens when highly-placed criminal informants help make cases against organized criminals; to use the CI themselves as part of the chain of evidence would be to risk losing that CI.
The difference is that the use of informants to generate investigatory leads is constitutionally unproblematic. There is no constitutional right to not be ratted out by an associate.
On the other hand, there is a constitutional right to the privacy of ones telecommunications. Therefore, using investigatory leads that are the product of illegal surveillance is constitutionally problematic, because of the fruit of the poisonous tree doctrine.
A failure to inform the defendant of how the investigation began deprives him of his ability to argue that the evidence against should be suppressed because it was obtained directly or indirectly as the fruit of an illegal search (wiretap).
No, the use of informants to kickstart an investigation without having that informant be in the chain of evidence is not Constitutionally unproblematic. Defense attorneys have campaigned against it for three decades. There is a complicated balancing act involved in using but not disclosing CIs, and it is very similar to the balancing act involved in using surveillance. It isn't helpful to pretend that one use is cut-and-dry and the other not.
I'm curious why you don't buy the "we're all criminals" line? Since the federal government cannot even produce the number of current federal crimes, it's at least fair to say none of us can possibly know that we're not criminals. I have a pretty good memory, but I can't even remember all the criminal offenses in my city's municipal code, much less the state and federal codes and statues. I'm sure I've broken enough laws to rack up at least a 100 years of sentences if every infraction was automatically prosecuted with the maximum sentence.
I think there's a nuance here that the uneven application of law enforcement calls into question of what is considered a crime. It speaks to the discourse that the cops-are/n't-evil argument operates within and allows cops to still be just doing their job. Law enforcement (not simply officers) is a double-edged sword the same way SEO is.
I understand you will probably protest to me calling you out, but you almost certainly are from an extremely privileged lifestyle and probably cannot understand how drug convictions ruin lives and families.
Whether you're deliberately trying to make the argument or not, you're wrong - this isn't some purely criminal justice problem that the NSA is wholly unrelated to. The very problems with evidence collection and prosecution you acknowledge set up the central danger of adding NSA surveillance to the mix - what protections we have left when it comes to LEOs and prosecutors get even weaker as you allow a major way around them, as is terribly obvious.
No, the NSA can't drop their findings into a case - that's in TFA. What they can do is essentially the same as a cop breaking into someone's house, hunting around until he finds evidence of any crime, then sneaking out and using what he learned to find the usable-in-court evidence to build a case against that person. Except instead of the cop doing the dirty work himself, we've got an unaccountable federal agency targeting people under whatever criteria they please and snooping on those people.
I think you are missing the main problems with this. One, if we have blanket surveillance and look through its yield to find out where to look for probable cause, how is that different from just not having a probable cause requirement in the first place? (Granted, if you have nothing to hide you have nothing to fear. But that's true if blanket surveillance is flatly legal, too.) Two, this is at least constitutionally questionable, that is, the defense should be allowed to question its legality in court. The fact that they aren't told about it prevents them from conducting a thorough defense. Due process rights should include the right to challenge the legality of evidence, if there is any question about it. Finally, the prosecutors and their witnesses actually are lying when they describe how that evidence was obtained. Do we really want to normalize that and make a precedent for it?
> Parallel construction does NOT allow law enforcement to
I think we're beyond this point now. There is no "what we are allowed to do" vs "what we are not allowed to do". From what we have seen in the past few months, it's now a matter of "do what we want to do" and if we can't do it then we'll interpret the law.
> (a) Introduce evidence that is the product of NSA surveillance
> (b) Literally manufacture probable cause to effect a search to generate introducible evidence
There is probably even a team at the NSA whose sole purpose is parallel construction!
>There is probably even a team at the NSA whose sole purpose is parallel construction!
There is, this was covered in the initial release regarding Parallel construction.
It's always interesting to me that while American tech companies are getting grilled and attempting to out PR each other with the recent releases of more detailed (three year old) reporting information, things like parallel construction and the fact that Israeli intelligence agencies have direct access to raw / un-minimized domestic wiretapping data straight off the Narus devices that capture it
Having said that: it's worth understanding what parallel construction actually is.
Parallel construction does NOT allow law enforcement to:
(a) Introduce evidence that is the product of NSA surveillance
(b) Literally manufacture probable cause to effect a search to generate introducible evidence
In order for an LEO to act on data from a surveillance source, they must not only be "at the right place at the right time" (which is what surveillance allows them to do), but, once there, discover probable cause to effect a search. That's why you see slides in this deck about how long you can stop a car in a traffic stop; one of the pitfalls of trying to launch a search from a traffic stop is that if the stop exceeds the duration allowed for a detention without arrest, all the evidence generated after that time period elapses is excludable.
Obviously: (i) the probable cause mitigation is damaged by drug dogs ("our search was authorized by this dog over here"), and (ii) all search mitigations are damaged by the fact that they come into play only once someone is arrested and threatened with prosecution. Those are both very serious, important, valid objections. However, I contend that they are objections to the entire process of evidence collection with or without surveillance. Judges need to stop pretending that dogs can judge whether a search is reasonable. Prosecutors have too much unchecked power in our system.
Here's an extremely detailed cartoon flowchart of how 4th Amendment protections come into play (or are thwarted) in the real world:
http://lawcomic.net/guide/?p=2256