Intelligence Laundering and the Constitution: How NSA Spying Affects You in Court

edward-snowdenEdward Snowden and the revelations about widespread NSA spying have been big news these last couple of months. While interesting and infuriating, that’s not normally something we would ponder working in criminal defense.

Or so one would think, anyway.

Turns out that data from arguably unconstitutional NSA spying gets filtered through to organizations like the Drug Enforcement Administration and the Internal Revenue Service for use in criminal investigations. You can read the article from the Electronic Frontier Foundation here.

Here’s the gist of it: NSA surveillance data gets passed to federal law enforcement agencies (such as the DEA and / or IRS) for use in regular, run-of-the-mill criminal investigations not related to terrorism or national security. The agents who receive that data are then instructed to essentially lie about it to defense attorneys, prosecutors, and judges so as not to reveal how they obtained the information.

Normally, law enforcement and prosecutors have an obligation to turn over information on how an investigation began to the defense, so that the defendant can meaningfully challenge the government’s case. For example, under the Supreme Court’s precedent set forth in Brady v. Maryland, there exists an obligation to turn over exculpatory evidence. If the defense attorney doesn’t know how an investigation actually began, it undercuts the ability of the attorney to know what evidence might be exculpatory. This goes double if the agent is lying to the prosecutor as well, since the prosecutors are the ones with the obligation.

What investigators are reportedly trained to do is to re-create the data that they obtain from the NSA using typical investigative methods, then to report to the prosecution, the courts, and the defense that this re-created investigation is how their investigation actually proceeded, leaving out any mention of NSA data. The EFF has coined this sort of investigative trickery as “intelligence laundering.”

So what’s the big deal? For one thing, while most people assume that this surveillance is only being used against terrorists, the reality seems to be that it is being used against American citizens, with very little oversight from the courts.

Most importantly, it is likely that this sort of intelligence laundering is gutting the Fourth Amendment protections against unreasonable search and seizure.

Here’s a hypothetical: In Kentucky, the government will need to get a warrant in order to read your e-mails. Warrants are special documents that a judge signs off on, after he or she is convinced that there will be evidence of a crime found wherever the police are looking.

But suppose that the NSA obtains your e-emails, and those of a few hundred thousand other Americans, and reads through them. That’s a blatant violation of the Fourth Amendment, so any information obtained would be useless in a criminal investigation. An agent wouldn’t be able to present those e-mails in court. Even more importantly, they wouldn’t be able to use anything they found as a result of those e-mails, since the e-mails were obtained illegally.

Suppose in one of these e-mails, though, the NSA sees evidence of drug dealing, and passes it on to the DEA? The DEA agents then “re-create” the data they receive via legal means…such as through just happening to pull a drug courier over on the highway, thanks to the illegally obtained data.

Normally, if they said that they knew who to pull over as a result of illegally obtained information (i.e., beating someone up), then anything they found during the stop would get thrown out. However, since the agents lie about how they happened to find the evidence, no one is the wiser.

This should worry anyone who cares about the rule of law, the only thing that stands between us and tyranny.

What can you do? Contact your Kentucky U.S. House Representative and demand he support bringing back and co-sponsoring the Amash-Conyers amendment to Stop NSA’s Blanket Surveillance of Americans. It failed in July by a narrow margin: 217-205. Because of citizen outrage, there is enthusiasm for having another go at it.

Kentucky did not do well for citizen privacy in the last vote. Here’s how your U.S. House Representative voted:

  • Voted YES to protect your privacy: Yarmuth (D-3) and Massie (R-4)
  • Voted NO to allow the NSA to continue spying on you unabated: Barr (R-6), Guthrie (R-2), Rogers (R-5), Whitfield (R-1)

Click this link and let them know what you think right now. Otherwise, they’ll keep getting it wrong.

Tucker Richardson

Tucker Richardson

Tucker is a founding member and managing partner of Baldani, Rowland and Richardson. He practices in all areas of state and federal criminal defense, from capital murder defense to DUI defense. You can reach Tucker at 859-259-0727.
Tucker Richardson

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