> "This data comprises the encrypted messages of all the users of AN0MS with a few exceptions," the document reads.
> Those exceptions included approximately 15 AN0M users in the United States.
Sounds like the FBI got the data of everyone except the US users.
> The affidavit noted that if any other AN0M handsets "landed in the US" the AFP agreed to monitor them "for any threats to life".
The FBI might not have been the one peeking in the window but they had friends willing to peek on their behalf. A mild inconvenience they can parallel construct around.
We hear about the cases where parallel construction worked because those cases are rare, and thus are news. We don't hear about the vast majority of cases where the police couldn't parallel construct their way around 4th Amendment violations.
> The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods. "Parallel construction is a law enforcement technique we use every day," one official said. "It's decades old, a bedrock concept."
https://web.archive.org/web/20130809014315/https://www.reute...
But at the local level where most crimes occur, parallel construction is a fantasy for the overwhelming majority of cases. Cops would absolutely love if they could just parallel their way around tainted evidence, but in most cases, there's only one crime, and only one trail of evidence, and there's no way to parallel around that.
(And I speak from experience; I was a public defender before I went into tax. I've seen many more failed attempts at parallel construction than successful attempts.)
In the real world parallel construction is not common. The cops simply don't have the resources to pursue it in the vast majority of cases at the local level, and many cases get tossed because of tainted evidence. Hell, plenty of manslaughter and gang cases get tossed because of tainted evidence.
At the federal level, parallel construction is more common, because the feds (a) have more resources to pursue alternative avenues of investigation, and (b) have jurisdiction over the types of crimes which lend themselves to having multiple avenues of investigation, like organized crime.
But on an absolute basis, even at the federal level parallel construction is still rare, because it is invariable easier to just pursue different charges. Al Capone, for example, was brought down by tax fraud. More recently, many federal charges against El Chapo were dropped because the evidence was tainted...but it was irrelevant because they just pursued a dozen different crimes instead.
Your claim is just absurd. In a successful use of parallel construction, the defendant and possibly even the prosecution should be unaware that it even occurred. Your experience as a lawyer is not a good reason to expect it isn't happening.
And though I agree that local use alone is likely rare, one of the common methods is for a federal agency to pass information to a smaller law enforcement agency. Additionally, using illegally collected evidence as a justification to pursue someone for an unrelated crime would still be parallel construction.
So how is this the "classic Five Eyes loophole"?
Although the US ANOM data wasn't sent to the FBI, presumably a foreign agency could see that data and tell the FBI which US citizens might be involved in illegal activity so they can be monitored/investigated in other ways.
Homeland Security specifically promises to delete any data once they've finished, but it doesn't say anything about the agencies that they presumably share it with.
Basically if the US wants data on particular people from the Five Eyes network, it can be arranged. And once it's in Langley, it can go anywhere.