I am a little surprised that nobody else has thought of this.

[Savannahmann]

I admit, it took me a few hours, but I realized it late last night. I decided to wait and see if anyone else thought about it.

Yesterday there was this thread. http://www.democraticunderground.com/10023000879

The backstory. A man is on trial, right now, for a Robbery. He says the metadata from his cell phone will prove he was no where near the location of the robbery at the time it happened. The Defense served a Subpoena to the prosecutor demanding the information. They said that the information was previously deleted by the cell phone company, and the Government could not provide the information. After the NSA revelations, the Defense is now demanding the information from the NSA.

At the time, my first impression was that this would shut down the program, because it would make it much harder for the Police to send innocent people to prison for crimes they did not commit. Then, I had a second thought much later.

Why not identify criminal organizations through the Metadata? I mean, you have not only the suspect's phone information, but everyone he was anywhere near. By mapping all that data, you can identify those who were in close proximity to the suspect, and then by tracking them, see if they came in contact with anyone else who was at some time close to the suspect. You could create links to the entire organization by tracking this data. The Police must be salivating at the idea of all this information at their fingertips.

I know, it will never happen right? But a defendant has the right to any and all evidence in the possession of the Government, and that evidence can not be withheld because that is grounds for an appeal, and to get the conviction overturned. Lets say that the Government says that information is top secret, and can't be released. Then in ten years, it is declassified. The Defense finally gets to see the information, and sure enough the Defendant was no where near the location of the robbery. The Government has withheld evidence vital to the defense, and allowed an innocent man to go to prison. How many other innocent men or women have gone to prison, people the Government could and should have provided evidence to show their innocence?

How many guilty are free because the Government is letting the local police spin their wheels while metadata of who was close to the location at the time of the murder is sequestered in a top secret file accessible only by idiots like Snowdon.

Oh, now the cat is out of the bag, and every defense attorney will be demanding to see the evidence, and every jury will hear how if only they had that information, the suspect could conclusively prove he was no where near the location of the crime. Some will be absolute BS. Some will be accurately truthful, and some will be just that last bit of doubt the jury needs to find not guilty.

The Prosecution can't do the same thing though, they have to have the actual evidence. They can't say that if only the Federal Government would cough up the data the bad guy would be facing an overwhelming case instead of the circumstantial case now presented.

This is what will get the program shut down. It will become, by court order, the very thing that everyone says it will never be. Because Judges will all sign orders requiring the Government to present the evidence to the Defense, or Prosecution, as part of the gathering of evidence for the trials. The Government can't claim it doesn't exist, and eventually the Supreme Court will rule, and how can they rule that the Government is allowed to withhold exculpatory evidence from the defense when an man, or woman's life is on the line.

Soon it will be every shoplifter the prosecution, and then the defense is demanding the information through subpoena.

[liberal N proud]

1. Like I asked earlier this week, if they are doing this and it is for our security

Why are they not solving crimes?

All I got was a bunch of feedback that said that didn't make sense. Why not, if we are losing liberty, then there should be a payback bigger than stopping the boogie man.

[randome]

4. Because they can't look at the data without a warrant.

Like surveillance. They don't prevent many crimes but they allow for events to be reconstructed after a crime.

[hr]
[font color="blue"][center]Stop looking for heroes. BE one.[/center][/font]
[hr]

[Savannahmann]

9. Which is what I am saying.

The Police will get access through the courts, and therefor you have to provide information to the Defense, or allow the Defense attorney to ask every Government witness if evidence within the NSA could prove the innocence of the defendant.

The only honest answer is yes, it could theoretically exist, although that possibility may be very remote.

[Jenoch]

53. I did not read your

entire thread because it is too long. I did not read the entire thread because it is too late to read that much on a phone.

The reason the feds are not using the NSA data for run of the mill crimes is because of national security issues and it would reveal too much in open court about procedures used by NSA.

[Savannahmann]

56. Procedures that everyone knows about, about Data that everyone is now aware is being collected

The secret is out. The news is old, and now the only question is are we going to continue pretending that nobody realizes that the Federal Government is collecting the data, or are we going to do the right thing, the legal thing, and comply with the subpoena's.

[rhett o rick]

12. You keep repeating that they "cant look at the data without a warrant." Where did you hear that?

From the NSA? From Clapper? Funny thing is that Snowden looked at the data without a warrant. I believe the data has been looked at by a lot of people without no stinking warrant.

[pnwmom]

18. Snowden SAYS he looked at the data without a warrant. But he's a proven liar. n/t

[Maedhros]

23. What is the proof?

Can you link to it?

[pnwmom]

31. Of what? That he lied. He lied about his salary and his educational background.

Do you really need a link for what should be common knowledge by now?

[Maedhros]

33. Yes - I hadn't seen it.

And what may be common knowledge to you may not be to others.

[pnwmom]

34. In addition to the lies about his education, which are detailed here

http://www.democraticunderground.com/10023009843

he also claimed that he left a job paying $200 K a year. Booz Allen says they were paying him $122 K.

[Maedhros]

49. Hmmm.

Seems a bit nit picky. Said he enlisted in 2003, records showed 2004. Meh.

Irrelevant to what he revealed, since the White House confirmed it.

[pnwmom]

50. The White House disputed many of the details of what he said.

For instance, Greenwald and Snowden were claiming that the slides showed the government had direct access into Google servers -- and that has turned out to be false. It was based on a misreading of the slide.

[Maedhros]

55. Is that a "lie"

or an error in interpretation?

[Live and Learn]

54. Betting he received a lot of overtime so

he quite possibly did make close to 200 k a year. Lost of people make a hell of a lot in ot and basically count it as their salary.

Plus, you are putting an awful lot of stock in a company that I wouldn't trust for beans.

[rhett o rick]

40. So you are saying that he had a warrant? nm

[pnwmom]

41. I'm saying that his claim that he could look at anyone's emails, including

the President's, from his desk, was false.

[rhett o rick]

44. And you are basing that on what?? nm

[pnwmom]

46. I'm basing it on the fact that he didn't provide a bit of proof of it;

he's lied about many other things;
other people I trust more than him say it's false;
and it's common sense that the President's emails would be protected.

Any of those points would be enough to discredit him, unless he actually produces such emails.

[rhett o rick]

48. I wish you the best. nm

[thucythucy]

30. Actually, it's in the warrant that Snowden produced

as evidence of his vast conspiracy to listen in on all our conversations.

"Telephony metadata does NOT include the substantive content of any communication, as defined by 18 U.S.C. 25100 (8), or the name, address, or financial information of a subscriber or customer."

The warrant authorizing the storage of metadata specifically prohibits looking into the details of any specific communication without a further warrant. (The warrant, BTW, is also time limited, it expires next month).

Thus far, though I keep asking for further evidence of all this amazing government eavesdropping on millions of people, the only thing people provide is what Snowden says. And what people say Snowden says. And what people are saying in reaction to what people say Snowden says. And when anyone questions Snowden's veracity--citing matters both large and small that he has been less than accurate about--they get accused of being haters of freedom, desecraters of the Constitution, sock puppets for the Stasi, etc.

As I've said now again and again, it's impossible to come to any conclusions about this without more information. Snowden says Snowden says Snowden says doesn't cut it. Even saying "Snowden looked at the data without a warrant" is based entirely on the word of, guess who? Snowden.

Now, if Snowden had produced some of the president's e-mails, like he said he could, or demonstrated how he had "the authorities" to tap into someone's phone calls or e-mails, or even, God help us, "bring down" the entire NSA in a single afternoon, we might have something. But he didn't. Not yet anyway.

Until I get more information from a more credible source, I'm not willing to hand the reactionary right a perfect cudgel with which to bring down this entire administration. Not after "palling with the terrorists," birthergate, death panels, ACORN, Benghazi, the IRS "scandal" that "goes right to the White House," etc. etc.

So produce something that shows me that "they" -- meaning the federal government -- are doing what you and Snowden say it's doing. Because simply saying "I believe the data has been looked at by a lot of people" doesn't cut it.

Not when we're talking about such a crucial matter as the life or death of the Fourth Amendment.

[rhett o rick]

42. But if you had been paying attention, Snowden isnt the only one confirming that

the NSA is recording data. Your rage against Snowden isnt very Democrat like. Your rage should be against anyone that would dare to violate our Constitution. In my book a true Democrat would be open minded and not pass judgement until we investigate the allegations. It's the conservatives among us that hate all challenges of the authoritarian leadership.

[pnwmom]

45. Who else is confirming Snowden and on what points?

He's been debunked on his claims that Prism applied to US targets; and there's no warrantless wiretapping going on. Are you talking about something else?

[rhett o rick]

63. Here are a few.

http://www.democraticunderground.com/10023030479

[thucythucy]

57. I have been paying attention, thank you very much.

And what I've read says the NSA has been requesting metadata for analysis by an algorithmic computer program, not tapping millions of specific conversations--which seems to be what all the paranoia here is about. "Listening to my phone calls" "reading my e-mails" is not the same as "saving my metadata among millions of others' in order to determine if there are patterns (such as, I don't know, calls back and forth from Boston to Chechnya?) that indicate a possible cause for suspicion, whereupon a further, specific warrant is requested showing due cause for tapping, recording, or otherwise noting specific and individual conversations."

I think this alone is over reach by the NSA. And yes, it has me troubled, but it isn't the same thing as all the speculation, accusations, conspiracy woo, that I've seen thrown around these threads the last few days. If we're going to begin reining in the national security state, it has to be on the basis of facts, not wild rumor. Especially if those rumors and speculation feed into your standard Teabagger meme that Obama has unleashed the Stasi on us, that he's another Hitler or Stalin, that he's amassing information as a prelude to the Fourth Reich, and blah blah blah.

And I'm not in a "rage" about anything. "Rage" is people on this thread saying Senator Feinstein can take her "camera" and shove it up a DUer's ass. (So now it isn't just listening to millions of phone calls, now it's video recording people in their bathrooms). Rage is people declaring they will never again contribute to, work for, or vote for a Democratic candidate for the rest of their lives, based on what Snowden has "revealed." "Rage" is day after day of anti-Obama posts, and attacks on Senator Feinstein, and now Senator Frank, based, thus far, on little more than Snowden's word.

I notice, too, you haven't linked me to anything providing the information I requested, other than to say, "Snowden isn't the only one." This is par for the course. I've made this request multiple times now, and every response has been, "But others say it too!" Based on what? On what documentation? Who else is saying that the NSA is listening in to millions of phones, and recording the conversations?

And I'm not passing judgment. Look at my previous posts. Look at the post you just responded to. I'm saying I'm NOT going to get all bent out of shape and throw a fit at Democrats in general and President Obama in particular until we know more. Until we get other sources as to the details of Snowden's charges, aside from Snowden. Until we see more of the documents, assuming they exist. And for this I'm being accused of being "authoritarian," a non-Democrat, a violator of the Constitution, etc. etc.

BTW, even if I WERE enraged, it would be "Democratic rage" not "Democrat rage." It's the "Democratic Party," not the "Democrat Party." It's "Democratic Underground," not "Democrat Underground." If you're going to accuse someone of being an authoritarian who isn't very Democratic, it's probably best not to use a favorite authoritarian right-wing expression.

[rhett o rick]

59. I was overly snarky. I got frustrated yesterday with all those that want to put everything

back in the box and forget it.

We know that meta-data exists.

We know that meta-data can be used to learn about people or some might call it spy.

We know that major corporations gather and use meta-data. We get unsolicited ads for items that we have shown an interest, etc.

Meta-data was used to determine who Gen Petraeus' mistress was. And IMO who Gov Spitzer was involved with.

The last I heard a bill, that would allow the sharing of internet data between corporations and the government passed the HOR and is being negotiated with the Senate -

The Cyber Intelligence Sharing and Protection Act (CISPA H.R. 3523 (112th Congress), H.R. 624 (113th Congress)) is a proposed law in the United States which would allow for the sharing of Internet traffic information between the U.S. government and technology and manufacturing companies. The stated aim of the bill is to help the U.S government investigate cyber threats and ensure the security of networks against cyberattacks.[1]

From http://www.ask.com/wiki/Cyber_Intelligence_Sharing_and_Protection_Act?o=2800&qsrc=999

People are claiming to know that what has been revealed is all there is. We dont know that. In fact I believe we are looking at a tip of the iceberg.

People are claiming that meta-data isnt important or revealing. That's out right wrong.

People claim that whatever data the corporations and NSA have cant been seen without a specific court order. Again wrong. Snowden proved that the data is accessible. If he can do it so can others that might use the data for criminal activities.

We know that corporations can lose control of data. How many times have we heard on the news that this banks or that insurance company lost control of millions of pieces of personal data?

We also know that the FISA court is a pretend oversight, rubber stamping thousands of requests for permission to spy further without ever turning down a request.

Those among us that are pointing to the iceberg are not the danger. Those among us that are asking to investigate the extent of the iceberg are not the danger. The danger is from those that want to close the shutters and pretend that the iceberg is harmless.

I apologize for my snark.

[thucythucy]

60. Thank you for the clarification

and the apology. It was very nice of you to do that, and I most certainly accept it.

Basically, I agree with most of what you're saying. While the warrant I've seen may be "legal" in the sense that it meets the requirements of the law, it's clear to me the granting of this warrant (and presumably there are others) was about eight bridges too far. The original FISA law, as I recall it, was crafted long before this sort of metadata became widely available. It stretches credulity to think the Congress that crafted and passed it had this in mind when the law was being debated. I'm glad the ACLU and hopefully others will challenge this in federal court. The discovery process alone should be illuminating.

Both FISA and the Patriot Act need to be overhauled, if not scrapped entirely so we can start over. FISA, as I said, was passed in a different era, and does nothing to meet the challenges posed by the digital revolution. The Patriot Act was passed in an era of hysteria brought on by the terrific trauma of 9-11, when Bush Cheney were able to ram through just about anything they wanted from an entirely compliant Congress.

This sort of overhaul can only happen if we stay sane and rational about all this. Which is why I keep telling people to be patient and wait on further developments. For all I know, it could be even worse than the worst speculation. But I'm afraid at this point only time will tell.

I hadn't heard about Cyber Intelligence bill. It seems to me that, unless there are some real privacy protections incorporated, this is another step in the very wrong direction.

Best wishes.

[sikofit3]

61. I agree 100 percent with you

I don't always agree with what you say but your right on this. However, they can actually get your text messages and such when key words are flagged which is another database but when discussing metadata its powerful because of those algorithms. Lets say someone made a wrong phone number to you and you happen to answer and that person is on the watch list. Or a friend of yours knows a friend who is also on the watch list and your friend uses your phone to call that person. You are now caught in the web of the NSA. This uncomforting to me and should be for everyone else and no one was doing anything wrong which is what everyone seems to say so why should we care? What if you had an arrest in the past when you were in college for marijuana or something else or some other activity, then the case file builds on character assassination and you now may get a phone call from someone. Once your in the system, even innocently and wrongly, you are in the system period. Data can be sold, borrowed and shared and as we are seeing with a lot of companies, they are more than happy to help the NSA for what ever egotistical reason they have or even just because they see it as being a good citizen. I don't care to engage on Snowdens angle or his character I am just thankful this has been brought to light and a conversation is started and people in those top secret buildings are going to have to do some back tracking and re think what they do and we have to make sure it is not just until this whole scandal blows over and another one takes place, which is probably being generated right now for this purpose I am sure, but we always have to be vigilant!

[pnwmom]

43. Excellent post. Thank you. n/t

[DevonRex]

32. Here About not getting FISA warrant on Tamerlan:

Last edited Fri Jun 14, 2013, 01:38 AM - Edit history (1)

"There’s a lot of information there that will get sorted through, like the indication of databases kept by the government for the purposes of data mining green-card holders (and American citizens?). But the ultimate fight between the Hill and the FBI, or perhaps the GOP and the White House, will hinge on how and why the FBI decided to conclude from their searches that Tamerlan wasn’t connected to international terrorism.

Under the Foreign Intelligence Surveillance Act (FISA) and the Patriot Act, in order to unlock powerful surveillance and investigative tools the FBI must show probable cause that an individual is engaged in international terrorist acts on behalf of a terrorist group. The foreign government seemed to believe that Tamerlan was. Did they supply sufficient evidence for the FBI to meet a FISA court judge’s standard of probable cause? Was the FBI going the extra mile to meet the probable-cause test? Initially it doesn’t look good for the FBI. The definition under FISA of international terrorist acts is that they must:

… transcend national boundaries, in terms of the means by which they are accomplished, the person they appear intended to coerce or intimidate, or the locale in which the perpetrators operate or seek asylum.

The classic example, experts say, of operating internationally is training in an al-Qaeda camp in the Pakistani hinterlands. To be sure, to get a FISA warrant the standard is higher for American citizens and green-card holders (like Tamerlan) — the FBI has to show the suspect is knowingly engaging in international terrorism or preparing for it on behalf of a terrorist group. If the suspect isn’t a citizen or green-card holder, then you just have to show the suspect is a member of terrorist group.

But FISA court judges don’t often reject warrant requests. And if the foreign government thought or knew that Tamerlan was traveling abroad to associate with “underground groups,” that could have been enough. Which raises the question how hard, if at all, the FBI and prosecutors in Boston tried to get a FISA warrant."

Read more: http://swampland.time.com/2013/04/20/why-the-fbi-white-house-will-face-hard-questions-about-their-boston-bombing-interviews/#ixzz2W95mM4jB

[dkf]

51. Haven't I heard meta data, such as location, doesn't require a warrant?

[thucythucy]

58. Then why did the NSA request a warrant to see it?

One of the "bombshells" Snowden released was the NSA warrant for collecting the metadata. You can view it on-line. It's four pages long, and while it's troubling in its scope it IS a warrant, obtained legally from a judge, presumably after some sort of review.

But if you've heard that metadata can be accessed by the federal government without a warrant, please let us know where you heard this. This would be another troubling aspect to this story.

[dkf]

62. You can't listen to the call or read the contents til you do

[avebury]

2. An interesting angle on the story. nt

[geek tragedy]

3. In general, anything the NSA collects as part of its national security

operations is inadmissible in criminal proceedings.

The telephone company should have that information--why wouldn't he subpoena them?

[Savannahmann]

6. The telephone company had already deleted the data prior to the request

The Prosecution said they did not have it, and could not provide it because the data did not exist. But it does exist, in the servers of the NSA.

[geek tragedy]

10. Supposedly it exists on the NSA servers.

State/local prosecutor is a different sovereign entity anyways . . .

[Savannahmann]

15. It was a Brinks Truck robbery

Which made it a federal case, like a bank robbery. So the Federal Government is in possession of evidence which could prove the innocence of a man on trial for Armed Robbery. Even if it was a State/Local prosecutor. Federal Law trumps state, and the Federal Government is in possession of evidence that could help prove the guilt, or innocence of people.

If the program is perfectly legal, overseen by the specially set up Court, then why can we not use the information in other courts to prove guilt, or innocence?

[geek tragedy]

16. if as a category NSA documents are inadmissible in court, that bites

both prosecution and defense in the butt, depending on the circumstances.

If you allow the defense to access the NSA database, then the prosecutors get to use it whenever they want.

Not sure we want to go down that road.

[Savannahmann]

19. We are heading down that road.

That's the point. The Defense in the trial has issued a subpoena signed by the Judge demanding the information. The first appeal, no matter how the trial turns out, will go through the appeals process to the Supreme Court. The data exists, everyone knows it, and it has been in the news. There is no reason not to allow the Courts access to the information, for at first, the Defense, except in an effort by the Government to deny a defendant a fair trial. Once the Defense has access, the Prosecution must have access as well. Even now, some helpful RW Politician is as we speak thinking of a way to allow the FBI and other Law Enforcement assets even more access.

Soon the NSA will be nothing more than a collector of data and an expert witness for both the defense, and prosecutions.

[geek tragedy]

20. government says "he was not the target of electronic surveillance ergo

not an 'aggrieved person' under the statute" and poof it goes away.

[Savannahmann]

21. But they also said

They collect all the Metadata, hence the Verizon Warrant that stared all this, and store it to make sure it isn't destroyed and the links lost for subsequent investigations. So the NSA has the data, according to the Verizon Warrant, and now the question is will the Government submit to the court the specific information requested by the Defense by subpoena?

Read the Warrant, it says all data for all numbers. http://www.guardian.co.uk/world/interactive/2013/jun/06/verizon-telephone-data-court-order

[bobalew]

5. Just because his cell phone is one place doesn't mean he's where It is....

A friend in the '80's a fellow techno-geek, had suggested a system of family pagers, to keep track of one's kids. One of my other brilliant collegues replied" What if you page little Johnny, and a friend's mother calls back & tells you: "Johnny's pager is here, but he's not!"....

[Savannahmann]

8. Certainly that's the next step

If it is not already in force. Between call forwarding and other tricks, the phone will not be wherever the suspect is. But the evidence does exist, and should be available through the court, it is a legal program after all right?

[rhett o rick]

13. But with the collection of meta-data that can be fed into a computer,

it can find out were Johnny is if he logs in somewhere, or uses a credit card or has a "Good to Go" commuter pass, or is carrying his I-phone or many other ways that will show up in meta-data.

If meta-data wasnt do valuable why do you think the govment is spending so much resources to collect and analyze it??

[riverbendviewgal]

7. Police do this already

in Canada with a warrant...

You know phone numbers talk to each other and leave a physical trail where calls are made from.
The records must be retrieved. Tech is improving the time to get these....but remember bad guys change phone numbers, use other people's identity..

An investigation could look like a huge web....with so many interconnections.

[JoePhilly]

11. A few things.

1) The police can get a warrant to track you already. And they can get additional warrants to track those with whom you associate.

2) In most cases, such warrants are not connected to national security, and so you don't need to go to the FISA court to get the warrants you need. A regular court would do.

3) In addition to tracking you, such warrants would also usually allow them to record your calls. Getting your voice recorded is critical to proving its YOU at the various locations, and not some one else who is using your phone.

And that last point is the rub. The fact that your phone went to location suggests that you were probably there, but its not sufficient confirmation on its own.

Similarly, the fact that on day X, your phone was at location Y, does not provide YOU with a very strong alibi. And as for demanding the records, the prosecution will give you the data for the day or days in question, and nothing else.

In the end, they'll use the meta data to help them get additional warrants which allow them much greater access to your life. The meta data won't be at the center of their case.

[Bluenorthwest]

26. Interesting stuff, but the OP is about defense uses of the information in court

after the commission of a crime, not about the Police using the information to track or investigate. Nothing I have read indicates that the 'metadata' is confined to cell phones, and thus 'your phone could be somewhere else' does not address the other data that could prove helpful to the defense. Who says the phone info is the only info? 'Metadata' itself implies otherwise as a word.
But again, you are speaking of the prosecution side, the OP is asking about the defense side issues, which are interesting. I don't know enough about the law to know how interesting but it sure smells like a wide world of possible motion filings to me.

[bvar22]

14. Excellent.

The next heist I plan,
I will make sure that an accomplice carries my cell phone to a distant town and makes a few calls from there!

IRONCLAD!!!

[HangOnKids]

25. Zing!

[dkf]

52. BUT...if he had the phone and made a call and they can test his voice then its good!

[Tx4obama]

17. I hope it isn't tied up in court too long because the NSA deletes their data after five years.

Five years is what they said on the news last night.

[Fuddnik]

22. Yeah, and J. Edgar Hoover purged his files every 5 years too.

I believes they're lying.

[SunSeeker]

24. I believe it is the phone companies that purge their data after 5 or fewer years.

Which is why the NSA intercepts it and stores it in case they need to go back to it for a period longer than the phone companies would have held it. The phone companies are not in the date storage business, they are money-making corporations. And holding data like this for years does not make them money, it only costs them money.

[Tx4obama]

29. The telecoms delete their meta-data after 30 to 90 days depending on which company.

That is why NSA is storing it longer, for five years.

[SunSeeker]

35. I know for certain AT&T here in Cali keeps it for at least 4 years. Not sure about elsewhere.nt

[Tx4obama]

36. Are you talking about the actual call conection meta- data OR 'billing info' regarding your bill?

[SunSeeker]

37. Individual customers' phone records, listing all their called numbers and time they called them. nt

[MiniMe]

27. The only thing it might prove is that his cell phone wasn't near the crime

Now, prove that he had his cell phone with him.

[Savannahmann]

28. But proving his cell phone was not at the crime

Could be enough reasonable doubt to find him not guilty. I mean, let's take a step back, aren't we sure we want to take every effort to make sure that the defendant is the one who committed the crime? Wouldn't the data be helpful to the prosecution if it showed the phone was there?

[GeorgeGist]

38. The feds always have the trump card ...

National Security.

[Savannahmann]

39. Looking a little weaker.

I mean, it is acknowledged that they have the data. Now, the only question is will the courts demand it? The answer to that is I believe, a yes.