Exculpatory Evidence and NSA Surveillance

by Ugh

Prosecutors are sort of a strange duck in the lawyer world, as they are not charged by the ABA model rules with putting client interests - i.e., the government - first.  The ABA rule on "special responsibilities" of prosecutors is here, and the comment to the rule is here.  

The model rule states in part that a prosecutor "shall ... make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense...." (emphasis supplied).  

The comment to the model rule expands this as follows "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons."  (more emphasis supplied).

My ethics professor in law school summarized these special rules for prosecutors as a responsibility to "seek justice" (which I'm sure he borrowed from elsewhere).  

I mention all this because both the LA Times and Wired (and likely others) have articles noting that if the federal government via the NSA is in possession of exculpatory evidence, it has an obligation to turn that evidence over to the accused.  This seems especially acute where the government has used cell phone data as evidence in its favor in a criminal proceeding (see the LA Times story), as it would be hard for it to then turn around and say it can't provide information in its possession that cuts the other way.

I imagine the way this will play out is that the DOJ, NSA and other government agencies will dance on the head of the meaning of the word "known" in the model rule when it comes to the prosecutor's obligation to turn over exculpatory evidence (and note how broad that rule is, "tends to negate the guilt").  E.g., either the DOJ won't ask the NSA if it has such records or hide behind some sort of "a search of our records" statement so the prosecutor doesn't "know."  Or if the DOJ asks, the NSA won't reply.  Or if the NSA replies it will be a non-denial denial, if not a lie.  It kind of reminds me of what I would call the tacit CYA "deal" between the DOJ and the CIA regarding the DOJ's Office of Legal Counsel torture memos:  the CIA agreed to lie about the facts and the DOJ agreed to lie about the law. Problem solved (for various definitions of "problem").

In any event, the executive branch has put itself in a position of holding exculpatory evidence that it will almost certainly not want to reveal.  Since the ABA model rules obviously don't apply to the executive branch writ large, perhaps that's not a problem for it.  However, they do apply - in various forms - to every single criminal prosecutor it employs, and I wouldn't want to be one of them right now.

Comments

[wj]

This is what happens when the government decides to ignore the clear direction of the law and the Constitution. The have to go thru ever more contortions to avoid doing what the law requires. One would think that the sensible approach would be to avoid getting into this bind in the first place. But apparently not.

P.S. Sorry if this is a duplicate post. The verification came up with nothing showing, so I just hit "Continue" We'll see if this time is better.

[sapient]

This is what happens when the government decides to ignore the clear direction of the law and the Constitution.

Not really. It's what happens when technology is so very far ahead of the law. This was available prior to the NSA revelations.

Of the many, many points that are made in this article, one of them is the expense of organizing electronic information so that it makes sense to the parties in a legal case. A well-known strategy for avoiding meaningful discovery in both criminal and civil cases is when either one party asks too broadly for information, or when a party "document-dumps" in response to discovery.

It's all bad.

[Turbulence]

I honestly don't see the problem here.

Local prosecutors and police don't have access to the NSA data. In fact, until very recently, they did not know about it and telling them about it was a felony. So, how could there be an ethical problem for them to refuse to share something they don't have?

It would be different if the NSA was giving them access, but they're not.

[Turbulence]

Also, at least in theory, the NSA doesn't have anything that the phone company doesn't already have. I'm sure there are edge cases (like maybe the phone company retains data for much less time than the NSA and you're looking at a homicide from 5 years ago...), but for most cases, the data is equally available to all parties: they just need to subpoena the telco.

Moreover, prosecutors don't want this data. The last thing any prosecutor wants is for the case to become a referendum on the (il)legality of NSA surveillance.

[sapient]

Turbulence, I think you're probably right.

I've never practiced criminal law, so I don't know this, but in Federal cases, the named parties are "The United States" v. "[defendant]" so, theoretically, if the defendant can't find phone records anywhere else (because they're too old or whatever), the records might be available from the government (because the NSA keeps them).

But the government's duty to turn over exculpatory evidence usually implies that the government knows that certain evidence in its possession is exculpatory, meaning that someone has looked at it.

[Ugh]

Turb - Perhaps I should have been clearer in the post, I was thinking of federal prosecutors and what knowledge they should be charged with having if another part of the executive branch has it.

I wouldn't expect state or local prosecutors to even receive an answer from the NSA should they inquire, and I wouldn't find a problem with that, at least not legally or ethically (morally might be a different matter) unless the federal government was otherwise assisting the prosecution and then refused to turn over information to the defense.

On the edge cases as you put it, the LATimes story seems to be one of those. Obviously that's just an anecdote but it wouldn't surprise me if the NSA was keeping things longer than the telcos (IIRC Feinstein and other lawmakers were talking along the lines of 7 years, but perhaps that was the operational length of the program and not how long things are kept in storage). But this again goes to the secrecy point in my original post on the NSA: who knows?

[Turbulence]

I was thinking of federal prosecutors and what knowledge they should be charged with having if another part of the executive branch has it.

Do any federal prosecutors have the required clearance to even know about the existence of the NSA program let alone have access to its contents? I assumed that the whole point of the program is that you can never open it up to the DOJ or FBI because it can't stand up in court; the best you can do is the equivalent of an anonymous tip about an imminent threat.

[McKinneyTexas]

Perhaps I should have been clearer in the post, I was thinking of federal prosecutors and what knowledge they should be charged with having if another part of the executive branch has it.

Typically, no one is charged with knowledge of something of which they don't have actual custody, constructive custody or the legal right to custody.

[Countme-In]

How'd he do that, what with the NSA, the Soviet state police, and every news organization in the world surveilling his every bowel movement?

http://www.guardian.co.uk/world/2013/jun/24/edward-snowden-russian-airport-moscow

I especially love that umpteen journalists flew to Cuba with Snowden's seat empty for 12 hours and there wasn't a thimbleful of booze to be had.

No scoop AND the delirium tremens.

And apparently they have to stay in Havana for awhile, travel being what it is.

[Countme-In]

I'll bet ya'll someday we'll have a lively discussion about this new technological marvel in the citizenry snooping game.

http://dish.andrewsullivan.com/2013/06/24/a-speed-gun-for-guns/

Obviously, the words "individual stealth armor" will be found in the Second Amendment encoded within a comma.

[Harald K]

"How'd he do that, what with the NSA, the Soviet state police, and every news organization in the world surveilling his every bowel movement?"

It highlights a problem with surveillance: It relies a lot on the target not knowing he's being watched (when it in addition relies on the target having a good faith assumption that he's not being watched, I call it spying). They can very effectively mislead the people watching them.

It doesn't help that both Snowden and Assange have intimate knowledge of their capabilities, of course.

But it's precisely for this reason that the PRISM and related revelations are so damning. You can bet that if terrorists use facebook, gmail etc. they're using it to plant misinformation at least half of the time.

So it's no good against terrorists. Its overwhelming usefulness is in watching people who don't expect to be watched, like you and me.

[Countme-In]

All of us are watched at some level and we know it.

After all, Christianity posits an all-knowing God who surveils our every move for later Judgement. Off to eternal Gitmo for you!

Santa Claus, as George Carlin (a watched person if there ever was one) observed, is jolly because he knows where all the bad girls live. How's he know that?

There's a van about four blocks from where I live that watches me every time I drive by. Sometimes it lets me know it's watching me by flashing pictures of me fore and aft and then sending me the compromising photos in the mail and extorting speeding fines from me.

Years ago, I wrote a letter to the editor of my local newspaper larded up with my usual snark and weeks later I got an anonymous typed letter in the mail from some self- appointed Christian group ("group" defined as one idiot with multiple personalities) who called themselves, being literalists, "The Watchers', who threatened to hack my computer and watch me forevermore.

They followed-up with missives from time to time. As it happens, a couple of years later, I opened up the newspaper to learn that the FBI had been contacted by dozens of other folks in my area who had received similar threats from "The Watchers" and they were on the case, without input from me, vigilante that I am.

Haven't heard if they found the person.

One time, right here on OBWI, a one-off commenter showed up and wrote to me, personally, that "one day we will meet and it won't be pretty".

I presume he's watching right now, and if so, let me just say "give us a kiss!"

My Dad used to say "I'm watching you."

Later, he would say "Watch yourself, easy money."

In so many words, I heard the same thing in job appraisals along the way.

"I'm watching you, Countme-In," some would intone. "We have big plans for you." the latter of which never materialized because I guess they kept watching and had to avert their eyes.

I would watch myself but I'm torn between finding it invasive and craving the attention, plus I give myself the creeps.

The Soviets had the KBG.

We have each other.

[Slartibartfast]

Typically, no one is charged with knowledge of something of which they don't have actual custody, constructive custody or the legal right to custody.

The US government is a vast enterprise some of whose parts have no knowledge of what the other parts are doing. Bug, feature, or both?

[Turbulence]

I'm waiting for the day when someone parent, after their kid has been abducted and the police have tried an amber alert and failed, shows up tearfully on TV and begs the President to use the NSA database to find their kid.

[rea]

I know a bit about this from one of my cases in which cell phone data was used to refute my cleint's alibi. Cell phones regularly "ping" the nearest tower, whether or not they are actually used to make a call. But that's an enormous amount of data. You can get it from the phone company if you ask quickly, but they don't keep it very long. Local proscutions get the data from the phone company. NSA says it doesn't collect this data (except maybe on specific cases), and that claim has a certain plausibility, given the quantity of data and the rare ultility of it.

[Turbulence]

NSA says it doesn't collect this data

Interesting. Where'd they say that?

that claim has a certain plausibility, given the quantity of data and the rare ultility of it.

I don't find that plausible. The data when properly compressed would take very little storage space. Transmitting the data from telcos might be tough though. And building a dossier of the locations of each and every cell phone in the country, well, that strikes me as very useful indeed.

[hairshirthedonist]

You can bet that if terrorists use facebook, gmail etc. they're using it to plant misinformation at least half of the time.

How do they not misinform each other in the process? (I'm not entirely sure if I'm being funny here.)

[rea]

Turbulence, see here:
http://www.motherjones.com/kevin-drum/2013/06/nsa-claims-it-doesnt-track-movements-cell-phone-users

[rea]

The data when properly compressed would take very little storage space.

Millions of phones, each making contact with a nearby towers every few minutes every day for decades . . .

[Turbulence]

rea, thanks a lot for that link, I hadn't seen it. That is really interesting. I'm really impressed with the LAT for getting comment from some heavy hitters like Blaze and Landau who know what they're talking about.

Of course, this now raises the competence question. If the government has the legal authority to get this data and if storing it is cheap and easy, why haven't they have gotten it yet?

[Turbulence]

Millions of phones, each making contact with a nearby towers every few minutes every day for decades . . .

For every phone, you need to generate a location log that shows the latitude and longitude of the phone at a given time. So you store records with four fields, a phone ID (maybe IMEI?), a timestamp, a latitute and a longitude. That's 16 bytes per record. To store a year of data on 300 million phones sampled once every three minutes, you'd need about 800 terabytes (60 minute/hour / 1 sample/3minute) * 24 hours/day * 365 day/year * 16 byte/record * 300million record). That costs about $100K. Somehow, amidst the billions of dollars we spend on the NSA per year, I think they could probably find $100K to burn.

Of course, it actually costs much less than $100K because efficient storage of time series data is a well solved problem. Most phones don't move most of the time; there is ample opportunity for data compression here. You'll have to pay extra for redundancy, but still, we're talking about less money than the NSA spends on toilet paper.

[Ugh]

McKinney: Typically, no one is charged with knowledge of something of which they don't have actual custody, constructive custody or the legal right to custody.

Well, assume that there's no question (because they admitted it) that the NSA has, say, cell phone location record data that Telco X doesn't have. Defendant says this data will show that he was (or at least his cell phone was) in State X when the charged crime was committed in State Y and asks the federal government for the data in the course of his prosecution.

Could the DOJ prosecutor just say I don't have access to that, so sorry? Or, I'm not going to ask the NSA for that? Or what?

I guess those questions implicate larger issues than my post on the ABA model rules, which apply to individual lawyers. That is, if the federal government has information that might (or "is likely to," or "could," or "almost certainly would," or "tends to") exonerate an accused, no matter how Top Secret™ - can it just refuse to turn it over and continue the prosecution?

[wj]

Ugh, forgive my ignorance, but why would a defense attorney ask the prosecutor for the data? Since NSA has said that they have it, why not just subpoena them directly to produce it?

[Ugh]

wj - the prosecutor is the government's agent in the legal proceeding. That is, it's not the prosecutor accusing the accused, but the United States. So if you're asking the prosecutor for something you're asking the United States for it.

I've inelegantly mixed that concept in with a prosecutor's individual ethical duty under the ABA model rules for her/him to turn over "known" exculpatory evidence, which has come out via your, Turb's, and McKinney's questions - and what I am trying to get at in my response to McKinney immediately above.

[wj]

So what you are saying is, if I'm a defendant in a case and I think that the EPA or the Coast Guard may have evidence, I ask the prosecutor to produce it rather than the agency? Does that apply even if the prosecutor is working for the state or local government, rather than the Federal government? (Or, I suppose, if the prosecutor is Federal, but the government agency is state or local.)

[wkwillis]

Too bad we didn't store this data during the OJ Simpson era, because he had one of the early cell phones.
Would have been pretty conclusive evidence, one way or the other.