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Comment by dsfyu404ed | Hacker News Reader

I have no problem with using dragnets to identify and disrupt activities that threaten national security.

I have a very big problem with the use of dragnets to get convictions in court by circumventing people's rights.

I don't see the need banning dragnets as a realistic option.

We need is a much stronger interpretation of fruit of the poisonous tree doctrine.

FWIW a metadata dragnet/haystack can be used to search for parallel construction needles the same way it's used to search for terrorist or insider trading needles, all three are just varying types people working together to get something done in secret. I'm not sure how to make incentives align so that actually works out in practice but it's technically feasible.

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But governments have shown they cannot be trusted to do this. One of the big arguments on favor of allowing mass surveillance was that it was only to be used for foreign intelligence purposes, which quickly got expanded to domestic terrorism purposes and today data gathered from dragnet programs is accessable and used in the investigation and sometimes even prosecution of normal domestic crimes in both the US and UK.

> "data gathered from dragnet programs is [...] used in the [...] prosecution of normal domestic crimes in both the US and UK."

I don't think this is true - sigint is not admissable in the UK (or US afaik).

The latest FISA law made FISA spying admissible in court. The FBI (and IRS, and SEC, and DHS, and other agencies) only needs to get a warrant after already seeing the data, at which point I'm not even sure what the purpose of the warrant is. The Fourth Amendment warrant was supposed to stop fishing expeditions.

In the US, there's the long-standing SOS program:[0]

> The unit of the DEA that distributes the information [from NSA] is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security. It was created in 1994 to combat Latin American drug cartels and has grown from several dozen employees to several hundred.

> "Remember that the utilization of SOD cannot be revealed or discussed in any investigative function," a document presented to agents reads. The document specifically directs agents to omit the SOD’s involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use "normal investigative techniques to recreate the information provided by SOD."

Which is aka "parallel construction".

Also, there's a great history of SOD online at the DEA Museum.[1]

0) http://www.reuters.com/article/us-dea-sod-idUSBRE97409R20130...

1) https://www.deamuseum.org/wp-content/uploads/2015/08/042215-...

I'm familiar with SOD - this supports my point not GP's point.

Well, maybe sigint isn't admissible in the US, but it certainly gets used, as the basis for parallel construction. And likely also in the UK.

I have a very big problem with the use of dragnets to get convictions in court by circumventing people's rights.

This is doable, I think. It's kind of the case now, and all it would take is a momentary parliamentary majority to enshrine it. But, it's honestly hard to see a consistent legal/theoretical justification for it, if all the data is sitting on a government server.

Are you saying that a court/prosecutor should not be able to demand someone's emails? What if they could be used to exonerate?

Somehow, I just think that once these datasets exist (they do) we will eventually get used to them.

I think "parallel construction" is the issue at hand, they can illegally search your emails with no cause or warrant, and then pretend they didn't and came by the evidence through other means. They can do this to everyone, and if you're targeted there's very little (nothing?) you can do about it.

https://en.wikipedia.org/wiki/Parallel_construction

>In August 2013, a report by Reuters revealed that the Special Operations Division (SOD) of the U.S. Drug Enforcement Administration advises DEA agents to practice parallel construction when creating criminal cases against Americans that are based on NSA warrantless surveillance. The use of illegally obtained evidence is generally inadmissible under the fruit of the poisonous tree doctrine.

I've been wondering for quite some time just how much of Bob Mueller's investigation into the President and Russian collusion is a meticulously produced example of parallel construction.

I'm not saying Trump and his people are innocent or that there's no Russian involvement, I just think it's highly unlikely that the set of evidence that we will see in these cases was obtained or produced with the publicized methods.

>Are you saying that a court/prosecutor should not be able to demand someone's emails

Not without a warrant.

>What if they could be used to exonerate?

Then the defense can present the evidence.

I meant, what if your emails would exonerate me. But, u guess that's sort of covered by warranty. I think it'd be very hard to prevent an internal security (FBI, in the states) and intelligence from accessing the data, but if courts are all you're worried about, I think that's doable. Isn't this the case now? Will a court accept unwarranted evidence?

> What if they could be used to exonerate?

As far as I understand the justice system (which, luckily, is not very well), the prosecution is not out to prove your innocence. It goes contrary to all their incentives, both the police and the actual prosecutor. All advice I've ever heard defense lawyers give on this topic points in the same direction: don't count on police or the prosecutor to seek the truth.

I may be wrong, of course. Thankfully, I haven't had the pleasure of finding this out for myself.

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