Quotulatiousness

July 29, 2013

Why Germany is the venue for the loudest denunciations of NSA surveillance

Filed under: Europe, Germany, Government, Media, USA — Tags: , , , — Nicholas @ 09:14

Alex Harrowell explains the deep suspicions among Germans which long predate the NSA surveillance revelations:

Obviously, privacy and data protection are especially sensitive in Germany. After the Stasi, the centrality of big databases to the West German state’s response to the left-wing terrorists of the 1970s, and the extensive Nazi use of telephone intercepts during the seizure of power, it couldn’t really be otherwise. Privacy and digital activism is older and better established in Germany than anywhere else — in the US, for example, I consider the founding text of the movement to be the FBI vs. Steve Jackson Games case from 1990 or thereabouts, while the key text in Germany is the court judgment on the national census from ten years earlier. But the UK has a (strong) data protection act and no-one seems anywhere near as exercised, although they probably should be.

So here’s an important German word, which we could well import into English: Deutungshoheit. This translates literally as “interpretative superiority” and is analogous to “air superiority”. Deutungshoheit is what politicians and their spin doctors attempt to win by putting forward their interpretations and framings of the semirandom events that constitute the “news”. In this case, the key event was Snowden’s disclosure of the BOUNDLESS INFORMANT slides, which show that the NSA’s Internet surveillance operations collect large amounts of information from sources in Germany.

The slides don’t say anything about how, whether this was information on German customers handed over by US cloud companies under PRISM orders, tapped from cables elsewhere, somehow collected inside Germany, or perhaps shared with the NSA by German intelligence. This last option is by far the most controversial and the most illegal in Germany. The battle for Deutungshoheit, therefore, consisted in denying any German involvement and projecting the German government, like the people in question, as passive victims of US intrusion.

On the other hand, Snowden’s support-network in the Berlin digital activist world, centred around Jacob “ioerror” Applebaum, strove to imply that in fact German agencies had been active participants, and Snowden’s own choice of further disclosures seems to have been guided by an intent to influence German politicians. Der Spiegel, rather than the Guardian, has been getting documents first and their content is mostly about Germany.

In this second phase, the German political elite has shifted its feet; rather than trying to deny any involvement whatsoever, they have instead tried to interpret the possibility of something really outrageous as being necessary for your security, and part of fundamental alliance commitments which cannot be questioned within the limits of respectable discourse. The ur-text here is Die Zeit‘s interview with Angela Merkel, in which Merkel argues that she knew nothing, further that there was a balance to strike between freedom and security, that although some kinds of spying were unacceptable, the alliance came first. The effectiveness of this, at least in the context of the interview, can be measured by astonishingly uncritical questions like the one in which she was asked “what additional efforts were necessary from the Germans to maintain their competitiveness”.

H/T to Tyler Cowen for the link.

It’s the same joke over and over again … but it’s funny because it’s true

Filed under: Government, Humour, Media, USA — Tags: , , , — Nicholas @ 07:54

H/T to Nick Gillespie for the link.

July 28, 2013

It’s not surprising that they can be bought – it is surprising for how little

Filed under: Politics, USA — Tags: , , — Nicholas @ 11:03

Cory Doctorow posted at BoingBoing:

A detailed analysis on Maplight of the voting in last week’s vote on de-funding NSA dragnet spying found that the Congresscritters who voted in favor of more NSA spying received more than double the defense industry campaign contributions of their anti-NSA-voting rivals. They were the winners in the industry’s $13M donation bonanza leading up to the 2012 elections.

The remarkable thing is how cheaply these empty suits sold out their vow to uphold the Constitution. On average, the pro-spying side got $41,635, while the anti- averaged $18,765 — a difference of $22,870.

Contributors and the NSA amendment

Snowden is not the story

Filed under: Liberty, Media, Technology — Tags: , , , , — Nicholas @ 10:16

In the Observer, John Naughton makes a few corrections to the way the media is reporting the saga of Edward Snowden and his revelations about the NSA’s global surveillance operations:

Repeat after me: Edward Snowden is not the story. The story is what he has revealed about the hidden wiring of our networked world. This insight seems to have escaped most of the world’s mainstream media, for reasons that escape me but would not have surprised Evelyn Waugh, whose contempt for journalists was one of his few endearing characteristics. The obvious explanations are: incorrigible ignorance; the imperative to personalise stories; or gullibility in swallowing US government spin, which brands Snowden as a spy rather than a whistleblower.

In a way, it doesn’t matter why the media lost the scent. What matters is that they did. So as a public service, let us summarise what Snowden has achieved thus far.

Without him, we would not know how the National Security Agency (NSA) had been able to access the emails, Facebook accounts and videos of citizens across the world; or how it had secretly acquired the phone records of millions of Americans; or how, through a secret court, it has been able to bend nine US internet companies to its demands for access to their users’ data.

Similarly, without Snowden, we would not be debating whether the US government should have turned surveillance into a huge, privatised business, offering data-mining contracts to private contractors such as Booz Allen Hamilton and, in the process, high-level security clearance to thousands of people who shouldn’t have it. Nor would there be — finally — a serious debate between Europe (excluding the UK, which in these matters is just an overseas franchise of the US) and the United States about where the proper balance between freedom and security lies.

These are pretty significant outcomes and they’re just the first-order consequences of Snowden’s activities. As far as most of our mass media are concerned, though, they have gone largely unremarked. Instead, we have been fed a constant stream of journalistic pap — speculation about Snowden’s travel plans, asylum requests, state of mind, physical appearance, etc. The “human interest” angle has trumped the real story, which is what the NSA revelations tell us about how our networked world actually works and the direction in which it is heading.

July 26, 2013

Justin Amash and the attempt to rein-in the NSA

Filed under: Government, Politics, USA — Tags: , , , , — Nicholas @ 10:19

Dave Weigel looks at the unexpectedly close vote in congress that would have forced the NSA to “walk back” some of its current domestic surveilance operations:

For a few minutes on Wednesday afternoon, Rep. Justin Amash thought he might have killed the National Security Agency’s metadata collection program. He’d optimistically expected maybe 90 Republicans to back his amendment to the Department of Defense budget. Ninety-four of them did. But he ran out of votes eventually — the Democrats didn’t come through — and by a 217–205 margin, the House killed his amendment.

Amash loaded the confetti cannon anyway. “My friends and colleagues stuck with me on my NSA amendment and changed the dynamic of the debate with tonight’s close vote,” the Republican congressman tweeted. “What an amazing staff I have. Thank you, thank you, thank you. You guys are awesome.”

[…]

Defenders of the NSA program are furious that Amash even got that far, and are working to undermine him. According to Politico’s Jake Sherman, Amash started this process with an “unworkable amendment” that would have failed easily, until staffers “held his hand” to fix it. That’s their story, but it doesn’t reflect what led up to the amendment. In the wake of Edward Snowden’s disclosures, every member of Congress who’d been sitting on some security state reform picked it back up and reintroduced it. In the Senate, Utah’s Mike Lee (a Republican) and Oregon’s Jeff Merkley (a Democrat) brought back the Ending Secret Law Act that they couldn’t pass when FISA was reauthorized. Oregon Sen. Ron Wyden and Colorado Sen. Mark Udall, both Democrats, introduced legislation to restrict NSA data collection unless the material contained a “demonstrated link to terrorism or espionage.”

At the time, the lack of quick action on those bills suggested that the Snowden story had been a blip. Privacy advocates in Congress now refer to those bills as the first wave, part of a strategy of attrition that will make the current policy politically untenable.

Amash proved the NSA will have to concede some ground when his amendment moved quickly from obscurity to reality to being under attack from the administration. On Monday night, before the Rules Committee voted on which amendments to bring up, Amash was told to meet with Speaker of the House John Boehner on the floor. He returned from that meeting convinced (and surprised) that he’d get a vote after all.

July 17, 2013

Nonsense on stilts – Civil libertarians “caused” 9/11, so we have to curtail civil liberties

Filed under: Government, Law, Liberty, USA — Tags: , , , , — Nicholas @ 13:02

While some pro-surveillance folks may be content to hint that the world is a far more dangerous place if we don’t let the NSA have access to everyone’s electronic communications, there are others willing to go a lot further:

    And so, when a law enforcement task force of the FBI found out in August of 2001 that al Qaeda had sent two dangerous operatives to the United States, it did … nothing. It was told to stand down; it could not go looking for the two al Qaeda operatives because it was on the wrong side of the wall. I believe that FBI task force would have found the hijackers — who weren’t hiding — and that the attacks could have been stopped if not for a combination of bad judgment by the FISA court (whose minimization rules were later thrown out on appeal) and a climate in which national security concerns were discounted by civil liberties advocates on both sides of the aisle.

Got that? Anyone advocating for basic civil liberties is to blame for 9/11. Holy fuck. This kind of thinking is about as anti-American as I can think of. As we’ve discussed, protecting civil liberties is at the core of the American way of life. “Give me liberty or give me death” is the phrase that Patrick Henry chose, and apparently Stewart Baker believes the American motto should be “you’re all going to die if you fight for civil liberties!” Shameful.

[…]

    Forty years later, though, we’re still finding problems with this experiment. One of them is that law changes slowly while technology changes quickly. That usually means Congress has to change the law frequently to keep up. But in the context of intelligence, it’s often hard to explain why the law needs to be changed, let alone to write meaningful limits on collection without telling our intelligence targets a lot about our collection techniques. A freewheeling and prolonged debate — and does Congress have any other kind? — will give them enough time and knowledge to move their communications away from technologies we’ve mastered and into technologies that thwart us. The result won’t be intelligence under law; it will be law without intelligence.

Basically, shut up with the debate, just let us go back to spying on fucking everyone. If we actually have to “debate” and “protect the Constitution,” some “bad guys” might talk without us knowing about it. And then we’ll all die.

[…]

He then tries to flip the whole thing around and argue that supporters of civil liberties are actually anti-technology, because they’re trying to limit the government’s use of technology. That’s ridiculous, since many of the loudest supporters of civil liberties come from the tech and innovation communities. No one thinks the government shouldn’t make efficient use of technology — but that’s very different from saying it’s okay for the government to either convince or force companies to cough up all sorts of private data on everyone or risk the wrath of the US government. That’s not a fair fight. The government has the power to compel people and companies to do things that they would not do otherwise, though I guess an extreme authoritarian like Baker either doesn’t realize this or doesn’t see it as a problem.

At the end, he makes a bunch of claims about how it’s the US government’s job to “protect” everyone — though I’d like to see where that’s laid out in the Constitution. As mentioned above, he makes some valid points that other countries are just as bad, if not worse, but that’s hardly a compelling argument, because that just allows others to flip it around, and claim that the US has no moral high ground, since it’s ignoring the civil liberties of the public — something that Baker notes he directly supports in this testimony — for some vague and impossible promises of “safety.”

QotD: The war on general-purpose computing

Filed under: Liberty, Quotations, Technology — Tags: , , , — Nicholas @ 00:01

As we wait for dessert, I ask him about his recent speeches at technology conferences discussing the “war on general purpose computing”. He runs through the argument with practised fluency. Computers are by nature general-purpose machines. It’s impossible to make a computer that does all the kinds of things we want computers to do yet is somehow disabled from making copies of copyrighted material, or viewing child pornography, or sending instructions to a 3D printer to produce a gun.

“Oh my God, that’s good,” says Doctorow after his first mouthful of crumble. My peanut butter shortbread is fantastic too, if absurdly calorific. We are interrupted only by another waiter dropping a tray of glasses.

He continues with the argument. The impossibility of making limited-purpose computers won’t stop governments or corporations trying to put on the locks, or changing laws to try to make those locks effective. But the only way these limits can possibly work is subterfuge: computers therefore tend to contain concealed software that spies on what their users are trying to do. Such software is inevitably open to abuse and has often been abused in the past.

Digital rights management systems intended to prevent copying have been hijacked by virus-writers. In one notorious case, the Federal Trade Commission acted against seven computer rental companies and the software company that supplied them, alleging that the rental companies could activate hidden software to grab passwords, bank account details and even switch on the webcam to take photos of what the FTC coyly calls “intimate activities at home”. As computers surround us — in our cars, our homes, our pacemakers — Doctorow is determined to make people realise what’s at stake.

Tim Harford, “Cory Doctorow has Lunch with the FT“, TimHarford.com (originally published at the Financial Times), 2013-07-15

July 16, 2013

State of play in the surveillance state

Filed under: Government, Liberty, USA — Tags: , , , , — Nicholas @ 08:38

If you’re just getting back from an extended vacation with no access to the news, “George Washington” at Zero Hedge has a cheat-sheet on spying that you might want to have a look at:

Lots more at Zero Hedge.

July 15, 2013

Edward Snowden as the modern Prisoner

Filed under: Media, USA — Tags: , , , , — Nicholas @ 08:34

Justin Raimondo responds to Melissa Harris-Perry’s open letter to Edward Snowden:

Why didn’t Edward Snowden agree to be jailed, abused, silenced, and quite possibly tortured? This is what Melissa Harris-Perry wants to know.

Harris-Perry is one of MSNBC’s minor weekend anchors, a professor currently at Tulane University who started out retailing her academic pretensions as a sometime guest on the Rachel Maddow and Chris Hayes shows: her job was to inject fancy words like “discourse” and “paradigm” into the standard lefty-“progressive” boilerplate propaganda we’ve come to expect from that venue. With a magisterial tone bordering on the parodic, and complete protection from having to defend her views against any contrary opinions, Harris-Perry soon carved out a niche for herself as a dogged defender of the Obama administration, no matter what the circumstances. So when Snowden emerged as the biggest whistleblower in American history, exposing the existence of a secret surveillance apparatus that snakes into every aspect of American life, she sprang to the Dear Leader’s defense and delivered an “open letter” to Snowden that underscores why no one needs to take her seriously

[. . .]

Listening to Harris-Perry’s tirade, I wondered whether I had stumbled on a heretofore unknown episode of The Prisoner, the cult classic 1960s television series written by and starring Patrick McGoohan, in which a former British intelligence agent who has committed some unknown treason finds himself imprisoned in a place known as The Village. McGoohan’s pioneering series presents a prescient portrait of the anesthetizing Prozac-ed out mass culture of America today: the Village, with it’s pastel houses, outfitted with every comfort, are set in a garden-like “controlled community,” where calming voices are carried on the wind and daily medication prevents coherent thought. Everyone is subject to 24-hour surveillance, and cameras are everywhere. Each episode tells the story of one unsuccessful escape attempt after another, while McGoohan – the prisoner – probes ever deeper into the true nature of the Village. We don’t know what crime he’s been imprisoned for, but the clear implication is that it’s something big, almost Snowden-like. I’m surprised no one has brought up the McGoohan connection: the story lines are parallel if not identical. Snowden seems to be fleshing out McGoohan’s scripts in the front page headlines of every newspaper.

In the series, the Village employs its agents, who are constantly trying to entrap McGoohan into confessing to his alleged crimes, and giving up some Big Secret he supposedly possesses, but he resists. Harris-Perry, in her faux concern for the issues raised by Snowden’s exposure of massive government spying on innocent Americans, is straight out of an episode of The Prisoner, in which an agent of the Village tells him to give up his secret because his “level of celebrity” will somehow protect him. Really? Not, I suspect, if Harris-Perry and her fellow Madam Defarges over at MSNBC have anything to say about it.

I agree with Harris-Perry on one point: it is valid to discuss Snowden, his politics, his personal journey from agent of the state to enemy of the state, but unlike her I don’t think this detracts at all from the actual content of the documents he has made available to Glenn Greenwald and the staff of the Guardian newspaper. Greenwald tells a very interesting back story to all this in his talk given at the “Socialism” conference, in which he relates how and under what circumstances he met Snowden, and how that meeting inspired him to think about how real change comes about.

July 7, 2013

America’s Ministerium für Staatssicherheit

Filed under: Europe, Germany, Government, USA — Tags: , , , , — Nicholas @ 10:36

Rick Falkvinge looks at an interesting appropriate pairing: the former German Democratic Republic’s Ministerium für Staatssicherheit (Stasi) and the American NSA:

If you were to compare the evil, reprehensible Stasi to the NSA side by side in a visual comparison, who’s the worse surveillance hawk? The people over at OpenDataCity have put together a nice visual guide with astonishing results. We tend to think of Stasi-scale surveillance as the epitome of evil surveillance, and have completely lost track of what today’s governments are doing to their people.

When you go to this page (in German), you are presented with a nice map that compares the size of the Stasi archives — a large building in Berlin — with the corresponding NSA archives. It’s clear that the NSA’s archives — if used with Stasi technology, for an apples-to-apples comparison — would be quite a bit larger:

Comparison of the Stasi and NSA archives. The Stasi archives were a building in Berlin, the NSA archives seem to be more like a couple of entire blocks.

Comparison of the Stasi and NSA archives. The Stasi archives were a building in Berlin, the NSA archives seem to be more like a couple of entire blocks.

Keep reading … it’s like a “powers of ten” exercise.

July 4, 2013

Bonfire of the civil liberties

Filed under: Liberty, Media, Politics, USA — Tags: , , , , , , — Nicholas @ 11:06

A recent article by Dan Gillmore in the Guardian was reposted on Alternet yesterday:

No one with common sense believes Obama is planning to become a dictator. But the mail list question was indeed not paranoid — because Obama, building on the initiatives of his immediate predecessors, has helped create the foundation for a future police state. This has happened with bipartisan support from patriotic but short-sighted members of Congress and, sad to say, the general public.

The American media have played an essential role. For decades, newspaper editors and television programmers, especially local ones, have chased readers and ratings by spewing panic-inducing “journalism” and entertainment that helped foster support for anti-liberty policies. Ignorance, sometimes willful, has long been part of the media equation. Journalists have consistently highlighted the sensational. They’ve ignored statistical realities to hype anecdotal — and extremely rare — events that invite us to worry about vanishingly tiny risks and while shrugging off vastly more likely ones. And then, confronted with evidence of a war on journalism by the people running our government, powerful journalists suggest that their peers — no, their betters — who had the guts to expose government crimes are criminals. Do they have a clue why the First Amendment is all about? Do they fathom the meaning of liberty?

The founders, for all their dramatic flaws, knew what liberty meant. They created a system of power-sharing and competition, knowing that investing too much authority in any institution was an invitation to despotism. Above all, they knew that liberty doesn’t just imply taking risks; it absolutely requires taking risks. Among other protections, the Bill of Rights enshrined an unruly but vital free press and guaranteed that some criminals would escape punishment in order to protect the rest of us from too much government power. How many of those first 10 amendments would be approved by Congress and the states today? Depressingly few, one suspects. We’re afraid.

America has gone through spasms of liberty-crushing policies before, almost always amid real or perceived national emergencies. We’ve come out of them, to one degree or another, with the recognition that we had a Constitution worth protecting and defending, to paraphrase the oath federal office holders take but have so casually ignored in recent years.

What’s different this time is the surveillance infrastructure, plus the countless crimes our lawmakers have invented in federal and state codes. As many people have noted, we can all be charged with something if government wants to find something — the Justice Department under Bush and Obama has insisted that simply violating an online terms of service is a felony, for example. And now that our communications are being recorded and stored (you should take that for granted, despite weaselly government denials), those somethings will be available to people looking for them if they decide you are a nuisance. That is the foundation for tyranny, maybe not in the immediate future but, unless we find a way to turn back, someday soon enough.

H/T to Tim O’Reilly for the link.

July 2, 2013

Learning to love the leaker

Filed under: Government, Law, Media — Tags: , , , , — Nicholas @ 15:16

Glenn Reynolds, aka the Instapundit, explains why people who like government legitimacy should love the leakers:

… the Snowden affair occurs in the context of an unprecedented administration war on whistleblowers. And that’s a bad idea because whistleblowing is one of the things that maintains the legitimacy of a government as big, and otherwise unaccountable, as ours.

As recently reported by the McClatchy Newspapers, the Obama administration views whistleblowing and leaks as a species of terrorism. According to McClatchy: “President Obama’s unprecedented initiative, known as the Insider Threat Program, is sweeping in its reach. It has received scant public attention even though it extends beyond the U.S. national security bureaucracies to most federal departments and agencies nationwide, including the Peace Corps, the Social Security Administration and the Education and Agriculture departments. It emphasizes leaks of classified material, but catchall definitions of ‘insider threat’ give agencies latitude to pursue and penalize a range of other conduct. … Leaks to the media are equated with espionage.”

The Peace Corps? The Department of Agriculture? Really? There’s irony in this, given President Obama’s famous 2009 pledge to make transparency a “touchstone” in his administration. “For a long time,” he said, “there’s been too much secrecy in this city.” His views on this subject seem to have evolved. Now, like many officeholders, he wants to control information to avoid embarrassment.

But that’s a mistake. Because while leaks can bring embarrassment, leaks — or at least their possibility — also bring legitimacy.

The federal government is so huge that no one can really oversee it. (This was, remember, an excuse offered by Obama’s defenders in the IRS scandals.) It’s certainly too big for congressional oversight to do the job, as is evidenced by the numerous unfolding scandals ranging from the NSA to Benghazi to the IRS, all of which seem to have caught Congress by surprise.

June 29, 2013

Jeff Jarvis calls for private encryption

Filed under: Liberty, Media, Technology — Tags: , , , — Nicholas @ 10:27

In the Guardian, Jeff Jarvis makes the case for internet communications to be protected by encryption:

Assuring the security of private communications regardless of platform — email, VOIP, direct message — should be a top priority of the internet industry in the aftermath of Edward Snowden’s revelations that US and UK governments are tapping into the net’s traffic.

The industry needs to at least come together to offer encryption for private communications as protection against government surveillance.

Guarantee of private communications should be a matter of law already. But, of course, it is not. In the US, only our first-class physical mail is protected from government surveillance without a warrant. In the UK, it was a case of opened mail that led to the closing of the Secret Department of the Post Office. As a matter of principle, the protection afforded our physical mail should extend to any private communication using any means. Just because the authors of the Fourth Amendment could not anticipate the internet and email, let alone Facebook, that should not grant government spies a loophole from the founders’ intent.

That protection could come from Congress, but it won’t. It could come from the courts, but it hasn’t.

I argued in my book Public Parts that government may try to portray itself as the protector of our privacy, but it is instead the most dangerous enemy of privacy, for it can gather our information without our knowledge and consent — that is the lesson of Snowden’s leaks — and has the power to use it against us.

June 25, 2013

Snowden’s character doesn’t matter – Snowden’s revelations matter a great deal

Filed under: Government, Law, Liberty, Technology — Tags: , , , , , — Nicholas @ 15:08

Gene Healy says that it doesn’t matter what you think about Edward Snowden, you should care a lot about what he’s revealed:

Here, the most disturbing aspect of the Snowden revelations is the NSA’s comprehensive, multiyear call-records database, with communication and phone-location information on millions of Americans. Especially if combined with metadata on emails, website visits and financial transactions that the agency is also amassing, that information is a potential treasure trove for political abuse — it can be used to ferret out the sort of information governments have historically used to blackmail and neutralize political opponents: who’s leaking, who’s organizing, who’s having an affair. The potential abuse of that information represents a grave threat to American liberty and privacy regardless of Snowden’s character and motivations.

In an post last week, Buzzfeed‘s Ben Smith makes the key point: “You Don’t Have to Like Edward Snowden.” Snowden, Smith argues, is “a source,” and the information sources convey is far more important than their “moral status” or the “fate of [their] eternal soul[s].”

Smith mentions Mark Felt, the FBI honcho who served as Woodward and Bernstein’s “Deep Throat” during their investigation of the Watergate burglary and cover-up. Felt, it turned out, was simply settling scores in a bureaucratic power struggle. He had no scruples against criminal violations of privacy — in 1980 he was convicted of conspiring to violate the constitutional rights of Americans through warrantless break-ins as part of the FBI’s COINTELPRO program.

It was important for Americans to know that their president was a crook. That Mark Felt was also a crook is neither here nor there. As Smith puts it, “who cares?”

June 22, 2013

Interesting – and probably inevitable – legal wrinkle for the NSA

Filed under: Law, Liberty, Technology, USA — Tags: , , , — Nicholas @ 08:58

At Outside the Beltway, Doug Mataconis links to an interesting article:

It’s only been a few weeks since we learned to true scope of the National Security Agency’s data mining of the phone records of American citizens, but already lawyers in civil and criminal cases across the country are seeing the database as a potential discovery goldmine:

    The National Security Agency has spent years demanding that companies turn over their data. Now, the spy agency finds the shoe is on the other foot. A defendant in a Florida murder trial says telephone records collected by the NSA as part of its surveillance programs hold evidence that would help prove his innocence, and his lawyer has demanded that prosecutors produce those records. 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 particular criminal case is, of course, on where the Federal Government is a party to the case as a prosecutor. As such, the Judge must weight not simply the government’s argument that the information requested is classified and thus should not be disclosed, but also the question of whether the prosecution has a duty to turn over the evidence to the Defendant. As a general rule, the prosecution must turn over any evidence that is potentially exclupatory or which tend to call some aspect of the prosecution’s theory of the case into doubt. The rules for what must be turned over vary from state to state, and the Federal Courts have their own rules, but they all generally follow the principles set down by Brady v. Maryland, which established the general rule that Defendants are entitled to be provided with exculpatory evidence that prosecution may have against them.

Of more interest, though, is the likely hood that attorneys may try to gain access to this NSA metadata in cases where the Federal Government is not involved, such as state court criminal proceedings or even civil matters such as divorces

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