Popular wisdom holds that when government and industry amass trillions of terabytes of data about the routine activities of everyday citizens little good can come of the effort. Two recent cases, however, highlight the potential value of digital archives for defense against criminal charges.
The first case raises interesting questions about those millions of domestic telephone records the National Security Agency quietly collected until a contractor leaked details of the program to a British newspaper. Through his lawyer, a Florida man — Terrance Brown, 40 — sought to force the government to turn over his cell phone records gathered by the secret NSA program. The lawyer, Marshall Dore Louis, told a federal court the records could prove Brown was somewhere else during attempted Broward County bank robberies for which he was charged.
A federal trial judge ordered the government to surrender the records, but the result wasn’t the treasure trove defense attorneys had hoped to discover. Prosecutors responded with a filing asserting the NSA does not store the particular records Brown had requested. Brown’s attorney withdrew the request after prosecutors stated the NSA had not stored “information about where a cellular telephone was geographically located at the time a call was made.”
Paradoxically, federal laws seem to prohibit disclosure of the domestic spying program, but once knowledge of the program becomes public, other laws require the government to provide access to the information gathered through the program if it’s relevant in a criminal case. Before the British newspaper published the leaked document verifying the government had stored phone records, attorneys had no reliable means of showing the government had such records. Now that the cat’s out of the bag, so to speak, that probably won’t be the last time lawyers seek access to the NSA’s vast domestic telephone traffic database in a criminal case.
In fact, Congress in 1980 passed a law – the Classified Information Procedures Act – that spelled out procedures for courts and government agencies to follow when parties to a criminal case seek to introduce classified information in court. The law provides for closed “CIPA hearings” in which the judge can determine whether secretly held information is relevant to a case. If disclosure would compromise national security, prosecutors may dismiss charges to avoid disclosing vital secrets.
Classified Information Procedure Act (CIPA) Resources:
- Federal Judicial Center:
Keeping Government Secrets: A Pocket Guide for Judges on the State-Secrets Privilege, the Classified Information Procedures Act, and Court Security Officers (pdf download)
- Congressional Research Service:
Protecting Classified Information and the Rights of Criminal Defendants: The Classified Information Procedures Act (pdf download)
- United States Attorneys’ Manual:
Synopsis of Classified Information Procedures Act (CIPA)
Although the NSA’s controversial archive of American’s telephone activities didn’t make a decisive difference in Brown’s case, defense attorneys have suggested it’s just the first of many such requests the NSA will likely face. Another recent example of creative use of stored private information for criminal defense involves those safe-driver Snapshot devices one insurance company urges drivers to install in personal vehicles.
Progressive Snapshot Saves the Day
Flo, the effervescent sales clerk at Progressive Insurance’s abstract insurance retail store of TV commercial fame, urges drivers to install a Snapshot device that ostensibly records details of their driving habits. Plugged into a vehicle’s digital diagnostic port, the device records miles driven, driving times and braking patterns.
An attorney representing an Ohio man last week used the insurance company’s stored Snapshot information to persuade a jury to acquit his client of murder and child endangerment charges. Prosecutors alleged the man had suffocated his daughter in an attempt to make her cry, which prosecutors said was part of an efffort to awaken the child’s mother with whom they said the man wanted to have sex.
Using data from the Snapshot device installed in his car, the man’s defense attorney Michael Cheselka showed that the man had turned his car off for only three minutes. The data supported the man’s contention that he’d found the baby slumped over in a swing upon arriving at the house and quickly transported her to a hospital when he discovered something was wrong. The device – which some say invades the privacy of users and which others say can result in increased insurance rates – helped save 28 year old Michael Beard of Parma Heights, Ohio, from a potential 15-years-to-life sentence in a murder conviction.
In that case, evidence derived from stored data helped a defendant, but either side in a criminal case may find occasion to dig into digital archives. Records of computer search history are frequently introduced in criminal trials to show criminal intent or planning.
E-mail records and social media accounts have also become new sources of evidence in criminal cases. In certain circumstances, government investigators these days access those records without warrants. In the case of the NSA’s phone records, federal officials have attempted to assure the public those records won’t be used for spying on Americans, but similar records can be available to police without a specific warrant.
Police may get permission to use a “pen register” to record the time and source of telephone traffic to a particular number without obtaining a warrant. The USA-PATRIOT Act of 2001 expanded that authority to allow police to obtain internet traffic records with only a minimal showing that the records will reveal information likely to be useful in an ongoing criminal investigation.
Free Consultation: Tulsa Criminal Defense Attorney
If you’re charged with a crime these days, it’s more important than ever to have someone who understands the world of communication technology review your case. Stored data from personal communication or from various technologies that record our every move can doom a case or break open the doors of freedom, depending on what information is available and the skill of experts who review the information.
For a free, confidential consultation with a criminal defense attorney in Tulsa, Ok, contact the Wirth Law Office Tulsa criminal defense attorneys at (918) 879-1681. Our criminal defense team offers free, confidential consultations. You may also submit a written question using the form at the top right side of this page.