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.
Brown’s lawyer, Marshall Dore Louis, said he couldn’t comment while the trial was ongoing.
“Relying on a June 5, 2013, Guardian newspaper article … Defendant Brown now suggests that the Government likely actually does possess the metadata relating to telephone calls made in July 2010 from the two numbers attributed to Defendant Brown,” wrote U.S. District Judge Robin Rosenbaum in an order demanding that the federal government respond to the request on June 10.
The laws of evidence require that prosecutors turn over to the defense any records they have that might help prove a suspect’s innocence.
“This opens up a Pandora’s box,” said Mark Rasch, former head of the Department of Justice Computer Crimes Unit, and now an independent consultant. “You will have situations where the phone companies no longer have the data, but the government does, and lawyers will try to get that data.”
The Federal Government’s response is about what you’d expect:
On Wednesday, federal prosecutors filed a motion saying they cannot respond to Brown’s request because the federal government does not have the data the suspect seeks — cell site location information, or CSLI. The leaked court order which inspired the request included was unclear on which metadata phone companies turn over.
The government’s motion also invokes the Classified Information Procedures Act (CIPA), which allows the prosecutors to respond to such requests “in camera,” or privately with the judge, to explain what data it does or does not have.
“The (CIPA) allows the government to protect classified information by claiming that, first, the phone records are classified, and second, whether or not the government has phone records is also classified,” Rasch said.
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:
Different standards apply to discovery in civil cases, such as contested divorce, but Solove said it’s possible lawyers in those cases could also appeal to the NSA for evidence, now that they know the records exist.
While it might seem unusual to demand data from an agency that not long ago was invisible to most Americans, Solove said it’s important not to put the NSA on some kind of legal pedestal.
“The NSA is not above the law. It’s a government agency, just like every other government agency. Just because it has this Harry Potter-like disappearing cloak, it’s still an agency that is subject to the law,” Solove said.
Since there would be no Brady-like obligation to turn over evidence in such situations, the arguments that lawyers seeking discovery in these types of cases are going to have to be very different, and the Federal Government’s arguments that the information should be protected because it’s classified would arguably go be stronger. Additionally, there would be interesting questions about exactly how the metadata could be authenticated as required by the applicable rules of matter should a particular case go to trial. Nonetheless, as Solve says earlier in the linked article, now that attorneys know that this database exists, they’re going to try to gain access to it. The guys over at the NSA better be prepared to be served with some subpoenas over the coming years.
