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DOJ: Defendant Has No Standing To Oppose Use of Phone Records
An anonymous reader writes with news of a man caught by the NSA dragnet for donating a small sum of money to an organization that the federal government considered terrorist in nature. The man is having problems mounting an appeal. From the article: "Seven months after his conviction, Basaaly Moalin's defense attorney moved for a new trial, arguing that evidence collected about him under the government's recently disclosed dragnet telephone surveillance program violated his constitutional and statutory rights. ... The government's response (PDF), filed on September 30th, is a heavily redacted opposition arguing that when law enforcement can monitor one person's information without a warrant, it can monitor everyone's information, 'regardless of the collection's expanse.' Notably, the government is also arguing that no one other than the company that provided the information — including the defendant in this case — has the right to challenge this disclosure in court."
This goes far beyond the third party doctrine, effectively prosecuting someone and depriving them of the ability to defend themselves by declaring that they have no standing to refute the evidence used against them.
Anything they suck up in their endless surveillance will only ever be used AGAINST you, never for your defense.
"when law enforcement can monitor one person's information without a warrant, it can monitor everyone's information, 'regardless of the collection's expanse.' "
-- totalitarian cliche goes here --
IANAL, but this statement seems overheated and inaccurate. Of course the defendant can "defend themselves" and "refute the evidence used against them": they can claim they didn't make those phone calls, for instance. What this case seems to say is that they can't simply have the evidence thrown out. That seems like a critical distinction.
Q: What does the "B." in Benoit B. Mandelbrot stand for? A: Benoit B. Mandelbrot
get a job at the NSA, cook up something incriminating and toss it over the wall to the CIA/.... The guy who you want to stiff will never see what you made up and so will be banged up without a chance to defend himself. Can't be bothered to get a job there, a package of greenbacks in a brown envelope to a NSA employee with health problems or going through a divorce will do the job.
Exaggerated, improbable ? Maybe, but not impossible.
Not just a provocative Slashdot Discussion Title... But the horrible inevitability you live in today.
"Flyin' in just a sweet place,
Never been known to fail..."
This guy knew straight-up he was funding terrorist activities, and is trying to use a technicality to get out of it. This is an abuse of our legal system, but, that just goes to show what a good legal system we have. As insulting as it is that we have to entertain this "appeal", we are entertaining it, entirely seriously, which goes to show who we are as a nation and our commitment to the rule of law and justice.
Read up on the case, it's enlightening: http://www.fbi.gov/sandiego/press-releases/2013/san-diego-jury-convicts-four-somali-immigrants-of-providing-support-to-foreign-terrorists
If money is speech as is precedent in the U.S, why is his donation to a terrorist group not protected under the first amendment?
Obviously they _want_ a police and surveillance state where everybody is a perpetrator and everybody needs to be constantly afraid and keep their mouth shut. The steps to come are extreme behavioral regulations, an one-party system, removal of most personal freedoms, death camps for anybody undesirable etc. Just look a bit at history (Germany, USSR under Stalin,...), or at what North Korea is doing to see where the US will be in 20 years or so if this is not stopped _now_.
Most ACs are not even worth the keystrokes to insult them. Be generically insulted by this and ignored otherwise.
He is not claiming the evidence is wrong, which is a refutation. He is claiming the evidence was collected illegally, which would allow the court to exclude the evidence. The government is claiming that he doesn't have standing to claim the collection was illegal, only the company the data was collected from can do so because the data doesn't belong to him but rather to the company.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
We know (now) how the evidence was collected. We also know that most of it was collected without probable cause. The issue isn't the method of collection, but the justification for it. This isn't exculpatory evidence that they're withholding; it's evidence that they're using, but was obtained through improper means.
This is the "fruit of the poisonous tree" argument. It doesn't matter if it's true or not; evidence illegally collected by the government can't be used in court because of the "slippery slope" precedence that it sets.
I won't join Slashcott. OTOH, If Beta goes live, I just won't be back until it's fixed. Sorry Dice.
So what? ToS don't trump the Constitution, and "may turn over records for law enforcement purposes" can mean records that are subpoenaed.
You are confusing private contracts with government charters- the two don't necessarily relate. A private entity can give your data to whoever they want so long as you agree to it by accepting the ToS (provided they include the permission in the fine print). It's not wiretapping. You're giving the private entity free reign, and the private entity is giving the government free reign. Yes, it's legal. Yes, it's constitutional (according to current judicial precedent). The Constitution does not ban your ISP from tattling on you to the government as long as you agree to allow them by accepting their ToS. The Constitution only pertains to scenarios where the government wants to search someone or their possessions directly. If you give your possessions over to someone, and you sign a contract with them saying they can give it to the government, then it's not illegal for the government to take it.
I'm obviously not defending this, but this is just the current legal reality. Current common law precedent and overly-permissive DoJ civil law interpretation have conspired to allow this sort of loophole.
Apparently Mr. Moalin once missed a telephone call from "Aden Hashi Ayrow, the senior al Shabaab leader," which makes it likely that a little more was going on than merely the donation of "a small sum of money."
Is this important?
He's claiming not that the evidence is wrong, he's claiming that it was collected illegally.
It's often been said that the defense of freedom is the defense of scoundrels (H. L. Mencken). We believe that a kiddie porn merchant has the right to a fair trial, the KKK has the right to assemble, and Rosa Parks has the right to sit in the front of the bus.
Should we base the legitimacy of rights and freedoms on the character of the accused party?
Apparently Mr. Moalin once missed a telephone call from "Aden Hashi Ayrow, the senior al Shabaab leader," which makes it likely that a little more was going on than merely the donation of "a small sum of money.
Really?
Was it really A.H.A. who called?
Was he really calling the defendant? Or did he misdial the number?
And I could go on for pages.
What the government is claiming is that the defendant has NO RIGHT TO ASK for the information necessary to CHECK whether that is what happened, NO RIGHT TO CHECK whether the information was collected legally, and NO RIGHT TO GET IT THROWN OUT if it wasn't.
Says the government: We get to use this against you and you can't challenge it.
Seems to me that anyone being prosecuted with such information NECESSARILY has standing to challenge it. Nobody else could POSSIBLY have more standing.
To claim that the defendant doesn't have standing is to claim that NOBODY has standing. It's to claim that the government can make up ANYTHING IT WANTS, enter it into evidence, and NOBODY can check it.
The government needs to put up or shut up.
= = = =
There used to be a solid division between the intelligence services and law enforcement. That let the intelligence services collect information for fighting wars under looser rules which, though they might not be constitutional, at least didn't vaporize the constitutional rights of defendants in criminal trials.
Then the congress passed laws for, first the "drug war", then the "war on terror", that tore down this boundary. So now we have the end game, where the NSA and the federal prosecutors light their cigars with burning copies of the Fourth Amendment.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
Corporations and other non-governmental third parties can willingly give the government any information they want and the Constitution has no bearing.
Because SCOTUS conveniently decided there was no reasonable expectation of privacy in phone records, where only 10 years before they'd ruled that there was. SCOTUS has spent much of the last forty years discovering clever loopholes in the Bill of Rights. There is no particular logic, consistency or common sense to these decisions, but who cares? Nobody can overrule SCOTUS.
Germany, 1930's was a state with rule of law. Bit by bit it was dismantled. We know the end result, but the end result was due to very deliberate chipping away at the underlying laws and through "correct" Judge selection. Really, now that the political class KNOWS that NSA and others are reading all of THEIR mail, who will challenge them ? None of them, and if they play nice, they might get a "tidbit" about their adversary. Osama Bin Laden succeeded beyond his wildest dreams, even if he is dead.
It is really hard to tell who is a terrorist now a days.
No, it is quite easy. Someone from another country is a "terrorist". Someone from our country who displays the qualities of being what would have been called a "patriot" 50 years ago, is a "domestic terrorist". Someone who says "baaaaa" and is covered in wool is not a terrorist (unless they are from another country).
If you are not allowed to question your government then the government has answered your question.
When the government chooses to conduct its affairs with such ruthless disregard for its citizens, I'm glad it's shut down, and I hope it defaults on its debt. Nothing else is going to stop these abuses.
Apparently, the percentage of people that advocate a debt default is up to 10 to 20 percent. That's a lot of support for something widely perceived as drastic and destructive.
"Once we've identified and embraced our sickness, we'll have strength...and that's when we get dangerous." - John Waters
They started looking into this guy at least 2 months before they declared the organization he donated money to to be "terrorist". They are actually quite right to call it that, because this is the organization that went on a shooting spree in a mall in Africa a few weeks ago, but that's beside the point. They messed up their evidence and fabricated rules to make it stick anyway.
I was promised a flying car. Where is my flying car?