Data Wants To Be Free
Via Overlawyered, Bob Sullivan writes at NBCnews.com that lawyers are starting to eye NSA surveillance of the citizenry for evidence in murder and divorce cases in the wake of a Florida lawyer demanding they hand it over for his client's murder trial:
On Wednesday, the federal government filed a motion saying it would refuse, citing national security. But experts say the novel legal argument could encourage other lawyers to fight for access to the newly disclosed NSA surveillance database."What's good for the goose is good for the gander, I guess," said George Washington University privacy law expert Dan Solove. "In a way, it's kind of ironic."
Defendant Terrance Brown is accused of participating in the 2010 murder of a Brinks security truck driver. Brown maintains his innocence, and claims cellphone location records would show he wasn't at the scene of the crime. Brown's cellphone provider -- MetroPCS -- couldn't produce those records during discovery because it had deleted the data already.
On seeing the story in the Guardian indicating that Verizon had been ordered to turn over millions of calling records to the NSA last month, Brown's lawyer had a novel idea: Make the NSA produce the records.
..."This is a little bit of an awakening to the government, that you can't hold massive amounts of personal data with impunity," (Solove) said. "Once you do, a lot of obligations and responsibilities kick in. One of the consequences of keeping data is that now you open yourself up to discovery."
http://www.advicegoddess.com/archives/2013/06/14/atty_for_robber_1.html
Snoopy at June 24, 2013 3:17 AM
Imagine if advertisers got a hold of the info. Or telemarketers.
Ppen at June 24, 2013 5:11 AM
Amy Alkon
http://www.advicegoddess.com/archives/2013/06/24/data_wants_to_b.html#comment-3764899">comment from SnoopyThanks for posting that earlier link, Snoopy. I should have put it in the piece. I will now.
Amy Alkon
at June 24, 2013 5:16 AM
I see no possible ethical, moral, or legal reason a group such as the NSA should be able to withhold damning or exculpatory evidence from defendants or the state. They want all that info, let them given access to it. Or, better yet, stop collecting it.
momof4 at June 24, 2013 11:54 AM
The NSA is now in the Martha Stewart position.
Whoever signs the FOIA paperwork saying the NSA doesn't have the information is guilty of perjury. But if they don't provide the information the NSA is guilty of obstruction of justice.
Claiming the data by itself is classified is not true. The data was at one time possessed by MetroPCS, a private company.
There are technically four levels of classified documents in the government system:
FOUO: For Official Use Only: This isn't really a classification but is stuff that is never handed to the public affair's types.
Confidential: You are the supply guy in Nellis AFB, NV responsible for resupplying the toilet tissue to Area 51. So you ship it to Nellis and have it trucked onward.
Secret: The Iranians are known to be loading yellow cake for shipment to North Korea, but it could be one of fifty dock workers that reported it.
Top Secret: The name of the dock worker is mentioned, which could get him killed.
There are caveats to the classification such as NOFORN (No release to FOReign Nationals) WNINTEL (Warning Notice: Intelligence Methods and Source Involved) and some others.
Then there is the super caveat Special Compartmentalized Information (SCI). Those override the others. There can be Confidential SCI such as the supply sergeant at Nellis redirecting the shipment to the secret base in BFE. The reports about the Saudi Prince which could have only come from his butler.
That being said all the NSA can really put a WNINTEL Confidential or WNINTEL FOUO code on the data now.
Basically they can protect the guys at MetroPCS who handed it over, but it really isn't classified.
So the NSA is in a damned if you do, damned if you don't choice.
Jim P. at June 24, 2013 7:29 PM
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