> We have settled the case, with DEA reimbursing EFF $160,000 in legal fees. A judge has now dismissed the case, pursuant to the terms of a settlement. This was a hard-won victory by our legal team...
Six years later, the DEA embraced the secrecy, going so far to keep it out of the DEA’s equivalent of its internal police reports, DEA Form 6, referred to as “6s” in the email below.
...
While these tactics were not enough to keep the existence of the program secret, all information indicates that law enforcement continues to hide its use in criminal cases. If you believe that Hemisphere may have been used in your case, please reach out to info@eff.org.
Has a criminal case ever been successfully overturned on the basis of parallel construction having been used?
On the contrary: the Supreme Court has provided an approved way for parallel construction to be laundered into a valid evidentiary tree: by passing it off to a second officer who develops the case on a good-faith basis (see Herring vs. United States[1]).
I'm no lawyer, but I don't think judges overlook constitutional rights just because an officer "found something." In fact, I believe there's an entire industry of defense lawyers that exists because judges don't overlook those rights.
From another vantage point-- if officers can invent reasons for searches that pass legal muster, then what does it matter that parallel construction exists and has a constitutional loophole? If it were really the case that there's an epidemic of invented reasons for warrants then parallel construction would improve the status quo by reducing the number of dubious warrants, leaving only those that "find something."
I'm playing devils advocate here to fish for a legally competent response...
> If it were really the case that there's an epidemic of invented reasons for warrants then parallel construction would improve the status quo by reducing the number of dubious warrants, leaving only those that "find something."
There must be an understanding here. A warrant executed for an invented and fictitious reason doesn't become "good" because it "finds something"; it's dubious precisely because of its provenance (a lie to cover an unconstitutional search). Whether there really is anything found doesn't impact the constitutionality of a search: that is the point of the "exclusionary rule" -- to exclude real, honest-to-goodness incriminating evidence of a defendant but which is found in violation of his/her constitutional rights. We cannot judge the rightness of a warrant based on whether it leads to useful evidence because then we would have no 4th amendment at all. Therefore, parallel construction doesn't improve anything; rather, it can only serve to increase the number of searches executed for fictitious reasons, and hence the number of dubious warrants.
nb: obviously, the above comment assumes/argues that Herring v United States was incorrectly decided. Also, I am not an appellate lawyer (or a lawyer at all).
> I don't think judges overlook constitutional rights
That's an idealistic view that may happen in some situations, but often does not.
> an entire industry of defense lawyers
That's great for people that can afford those lawyers. For the 60-90% of criminal defendants that need to use a public defender, it's generally impossible to make a complicated defense required to get evidence excluded when the PD only has as little as 12 minutes[1] available for each client.
> what does it matter that parallel construction exists and has a constitutional loophole?
It matters because it's the fruit of the poisonous tree[2]. The entire point is to discourage this kind of workaround that ignores the spirit of the warrant requirement for search and seizure. Law enforcement and the judicial system is intentionally held to a higher, more difficult standard specifically to make it harder to ignore your right to due process.
> If it were really the case that there's an epidemic of invented reasons
It was common enough at the DEA[3] that they created a training presentation about using information from classified sources, a "Taint Review Team" on call ready to help agents launder evidence, and a standard form for submitting requests to the NSA for specific information.
knowing something is going on or is/was there can give way to investigation of course you need probable cause or more for a warrent there is also finding things with unrelated matters but in the course of that investigation. or as noja said make something up.
Anon calling, letters, online tips to 100% certain criminal activity.
Go ahead and get Comcast logs from 8 years ago to prove that the tipster was a DEA agent essentially informing himself /his agency. Even if he didn't use Tor or whatever.
Even if one lives a legal life and has no indication of ever being inclined to criminal activity, the cops will still hound you and claim they aren’t doing anything at all.
Am I missing something or is the program still on going? It seems like the article is about them getting access to information, not getting the program shut down. Don't get me wrong, I think exposing it is a good first step but getting it stopped where they can't just search for whatever they want without a warrant would be the end goal here.
You're correct, this is about a freedom of information lawsuit about the program. They now seem to be finding potential victims so they can challenge the actual program.
>Am I missing something or is the program still on going?
Why wouldn't it? It was ALWAYS a legal program run by the Executive Branch sanctioned by Congress with oversight by the Courts and Congressional committees.
Because Americans gave up a lot of their rights, knowingly and unknowingly, after 9/11 to keep us "safe." Our Constitution and Bill of Rights are mostly just guidelines now. There's what happens in "public" vs what happens in "private," that you rarely hear about.
> On December 16, 2005, The New York Times reported that the Bush administration had been conducting surveillance against U.S. citizens without specific approval from the FISA court for each case since 2002.
> In 2011, the Obama administration secretly won permission from the Foreign Intelligence Surveillance Court to reverse restrictions on the National Security Agency's use of intercepted phone calls and e-mails, permitting the agency to search deliberately for Americans' communications in its massive databases. The searches take place under a surveillance program Congress authorized in 2008 under Section 702 of the Foreign Intelligence Surveillance Act.
> Because of the sensitive nature of its business, the court is a "secret court" – its hearings are closed to the public. While records of the proceedings are kept, they also are unavailable to the public, although copies of some records with classified information redacted have been made public. Due to the classified nature of its proceedings, usually only attorneys licensed to practice in front of the US government are permitted to appear before the court. Because of the nature of the matters heard before it, court hearings may need to take place at any time of day or night, weekdays or weekends; thus, at least one judge must be "on call" at all times to hear evidence and decide whether or not to issue a warrant.
I still think that it's funny how even something as third-worldy as a secret court wasn't enough. They didn't stop at disregarding the court system, they decided to make a joke out of the law itself. It makes you wonder what other laws the government sees as only suggestions. What credibility do the enforcers of the law have when they themselves only follow it when it suits them?
Without a warrant, most evidence (with complicated exceptions) can't be admitted into court, but can aid police in solving a case, then using "parallel construction" for court.
While relevant to the topic, I don't think this is responsive to the question. I.e., "why are police allowed to do this at all?" differs from "is it allowed in court?"
This touches on the idea of "poisoned fruit" or, more specifically, the "fruit of the poisonous tree". To quote Wikipedia:
> Fruit of the poisonous tree is a legal metaphor in the United States used to describe evidence that is obtained illegally. The logic of the terminology is that if the source (the "tree") of the evidence or evidence itself is tainted, then anything gained (the "fruit") from it is tainted as well.
The idea here being that the data obtained from hemisphere isn't considered "illegal" and, honestly, probably _would_ be permissible in court. The reason it's kept out seems to have more to do with optics than legalities.
So, I guess the simplest answer to the question of "why" is "there's nothing stopping them".
I disagree. I think it is kept out because it violates your 4th amendment rights, and if enough judges saw that violation at least one would remember their civic duty.
The information is owned by AT&T. They can be forced to hand it over to government warrant/subpoena. Or, they can choose to freely offer it (more likely sell it) to the government.
We can pass laws (and have such as with medical records) that even though the information is owned by <company> they can not use it/reveal it/etc because it is violation of privacy.
But we haven't done that.
Also, one thing many people don't remember is that the constitution/bill or rights restricts the government. It does not restrict private enterprises. Corporations are not required to protect your free speech, right to not be unlawfully searched, or any other right granted by the constitution.
How do we stop this 'tide' of surveillance? Its clearly political. Is it necessary to focus on educating kids so they can create a green revolution for privacy in 20+ years? Or is there a faster way to raise the public concern?
I think we're totally fucked. I'm young and my friends are generally smart and tech-savvy and they pretty much all have the "I have nothing to hide" mentality or "if the government really wanted to they could get it anyway".
This is completely off subject, but as a personal rule of thumb, 99% of articles that include the first person, such as "Why I [did xyz]..." or "How we can...", are clickbait.
Ime, the best case scenario is Acme Tech Co. "blogging" about "why we used abc codebase," but the reality is that it's simply rehashing well known information in narrative form for the purposes of PR, and worst case scenario is that it's just unoriginal op-ed garbage.
See: "We should replace Facebook with personal websites," which is currently trending at #10 for HN, above this OP at #16.
EFF is a great organization and can't say that it's surprising to see that this is the first time in a long time to come across an exception to the rule.
reminder: current FBI directory Christopher Wray invented Parallel Construction back in 2005. In 2005, Wray was then the head of DOJ's Criminal Division, and Wray was the 17th person in the entire Govt outside of NSA to be "read into the program" and briefed on Bush's President's Surveillance Program, now known as NSA's STELLARWIND program.
Wray's job was to lead a DOJ team of attorneys and to scrub criminal and terrorism indictments of any hint of evidence which originated in the NSA's then illegal domestic surveillance dragnet, and replace that evidence with Parallel Constructions to deceive the Court about how the Govt knew what it knew.
The declassified IG report about STELLARWIND is here:
Given Wray's intimate involvement in Parallel Construction, I have zero hope that any help is coming from the very top of FBI/DOJ to shed light on what is going on, how much the Feds are really using Parallel Construction, how far they are going with it, and most importantly, giving us some kind of proof that they have stopped abusing it and bowing to some kind of real oversight process to ensure us that our entire legal system is not a Star Chamber in a Soviet Kangaroo Court on Clownworld.
Why would Wray budge one inch when he's the top honcho responsible for the whole debacle? The buck stops at him. And given the Fed's dismal track record, it's safest to assume Parallel Construction has not stopped, but has expanded and been rolled out even further.
HEMISPHERE is the AT&T dimension of Parallel Construction, so what about the Verizon dimension? And the Sprint dimension? And all the rest of the Telcos and cellular providers? Is AT&T special and only their databases are used for PC? Of course all the telcos are in on it. Wanna bet this is all a sub-compartment of PRISM? We still haven't seen the rest of the PRISM slides leaked by Snowden. On the slide deck it shows the slide numbers up into the hundreds, but only about a dozen of the slides have been published. Where's the rest of it?
It's a good time to make end of the year donations: https://supporters.eff.org/donate/year-end-challenge-2018