[tptacek]

How does parallel construction allow:

(i) intelligence agencies to make any criminal allegations

(ii) criminal allegations that turn out to be false

Can you be as specific as you can? There's plenty of rational arguments to make about why "parallel construction" is bad, but too many people argue about it without understanding at all what it is.

[glimcat]

> criminal allegations that turn out to be false

That's not the issue. The problem is that it gives the government the ability to arbitrarily circumvent the usual ethical safeguards and legal protections which come into play when bringing a criminal allegation.

Since the practice obfuscates at least part of the evidentiary chain, there's no way for a private citizen's legal defense to audit it for compliance with ethical and legal standards.

Also, given sufficient surveillance data and complexity of law, you can probably come up with some criminal charge against any arbitrary person under surveillance at any time when it would be useful to do so.

> intelligence agencies to make any criminal allegations

"Here's some data, that guy is inconvenient to us, please accuse them of this list of legal violations which we have just given you supporting evidence for."

If you know a reason why it wouldn't work like that - one which can still be enforced in open court, not a secret court known for rubber-stamping virtually anything brought before it by the government - I would love to hear it.

[tptacek]

Prosecutors are required to present potentially exculpatory evidence, but they have never been required to present all the data they generate in their investigations. Defendants have never had access to the entire "evidentiary chain" using the definition you present here.

Meanwhile: prosecutors "accuse", and to do it, they need evidence. They can't use evidence from NSA or DEA "fusion"; the whole point of "parallel construction" is that they need a chain anchored by probable cause to do anything.

[msandford]

Yes that's true. But the idea that there's an entity which can "magically" drum up a precise interdiction point where probable cause should be manufactured by law enforcement isn't good.

If a police officer wouldn't suspect you of a crime without the special instructions given to him by someone with access to sensitive information then you've just done an end-run around probable cause. Sure the police can manufacture probable cause to stop and search nearly everyone all the time. But they don't because they'd prefer to have some kind of actual probable cause because that gives them a much higher chance of not being on a wild goose chase. Subverting this limitation due to resources also subverts the even application of the law which is a bad thing.

The idea that drug dealers can't be caught the old fashioned way and spying on all American citizens in order to catch some people engaged in largely victimless criminal activity is laughable at best and terrifying at worst.

[rosser]

Speaking only for myself, the problem with Parallel Construction, from an "implications for law enforcement" perspective (thus leaving aside your legitimate concerns about warping the NSA's mission) is simply the dishonesty of it. It bakes yet more deceit into a prosecutor's job.

I think there's already quite enough of that as things stand, thanks so much.

[ctdonath]

Considering an administration which admittedly inflicts baseless tax audits on political adversaries just as a ploy to harm them, I'm more concerned about

(i) intelligence agencies identify broad population of law-abiding political opposition (say, grep "impeach the president" on all private phone calls)

(ii) bureaucratic abuses inflicted on said opponents follows (say, IRS & zoning board & child protective services "receive suspicious information" and proceed to spend months investigating someone who literally can't afford it).

Not exactly parallel construction, but very close: the source of the identification & targeting remains secret, while some "innocent" explanation for the target's consequential hardship emerges and is acted on without articulable suspicion.

[EthanHeilman]

(i). Intelligence Agency informs police that someone might be doing something bad. Police hide the source of the tip using parallel construction. Thus, an intelligence agency has made an allegation of criminal wrong doing.

(ii). The initial allegation may turn out to have been a mistake, but it is never examined in a court of law. Whatever evidence they "construct", such as anonymous tips or circumstantial evidence may be very hard to refute in court. The investigation begins to take on a life of its own.

[tptacek]

The police make arrests. Prosecutors make charges. Charges need to be accompanied by evidence. Evidence often comes from arrests; arrests circumvent the search warrant requirement ("search incident to arrest"), meaning that the cause for an arrest is subject to challenge. Intelligence agencies can't generate cause for arrest and they can't generate charges.

Anonymous tips don't remain anonymous in court. The way you get evidence from a CI is to use their info to request a warrant. The warrant identifies the CI. Surveillance data can't be a substitute for a CI in that scenario, because a warrant can't issue from surveillance data the way it can from a CI. And, of course, for someone to be charged based on an anonymous tip, the search effected by the warrant has to turn up evidence of a crime.

[wan23]

It's like the episode of The Wire where Herc and Carver plant a remote microphone inside a tennis ball to listen in on some drug dealers and attribute their evidence to a non-existent confidential informant named 'Fuzzy Dunlop'. They need to invent a CI because they hadn't previously convinced a court of the need to surveil those persons and so they had nothing they could use in a trial. I'm not a lawyer so I can't say if the legal issues depicted were depicted accurately, but I recommend the show to anyone interested in the topic of surveillance for the purposes of law enforcement (as opposed to intelligence gathering) and how things can potentially go wrong despite their good intentions.

[DelightfulScone]

"Anonymous tips don't remain anonymous in court."

Evidence can and is withheld from defense using mechanisms like States Secrets.

[tptacek]

State secrets is a mechanism to exclude evidence, not introduce it.

[DelightfulScone]

That's why I said withheld, yes.

[tptacek]

So how do state secrets privileges introduce anonymous evidence? Maybe at this point it would be helpful for us to have a specific case to refer to. Could you point us to one?

[DelightfulScone]

"but too many people argue about it without understanding at all what it is."

Oh tell us then since you have the inside track of knowledge on the issue. You know you are chomping on the bit to do so.