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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.”
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.
The assertion in the motion that "at the outset, the government does not possess the CSLI data," is intriguing, as it clearly refutes the notion that the NSA obtains location data as part of its routine records acquisition from telephone companies. But it's unlikely this case will yield more clues about what data the NSA does have, as additional legal discussion will be private.
Even without location data, it's easy to imagine other cases where call records might help prove a suspect's innocence. Rasch says the NSA should expect to deal with a lot of new requests for evidence now.
"The thing was, in the past, no one knew these records were there. Now lawyers know, and they will ask for it,” he said.
It's all part of the hazard of becoming, effectively, a backup server for all the nation's technology companies, said Solove.
"This is a little bit of an awakening to the government, that you can't hold massive amounts of personal data with impunity," he said. "Once you do, a lot of obligations and responsibilities kick in. One of the consequences of keeping data is that now you open yourself up to discovery."
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.