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Old February 15, 2014, 04:41 PM   #1
jtmckinney
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NSA... Metadata & Government Withholding Evidence

I have been wondering about this for some time and maybe can get the answer here.

It is my understanding that the government has to hand over all evidence it has if they are charging you with a crime. Would that also include the metadata that the government is collecting via it's NSA programs?

I have heard some refferences to this (not on this forum) but not as a specific point of discussion.

Thanks in advance for any responses.
James
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Old February 16, 2014, 10:42 AM   #2
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Sigh...it's much worse than you realize.

The US DOJ has a set of published plans out to lie to the courts in systematic fashion, that have been leaked. It's called "parallel construction":

http://www.washingtonpost.com/blogs/...overing-it-up/

https://www.eff.org/deeplinks/2013/0...nce-laundering

http://www.reuters.com/article/2013/...97409R20130805

Short form: NSA illegal snooping finds you doing something naughty, maybe in a "breaking bad" sense. They learn you're going to turn over a bucket of pot to a buddy at midnight in the parking lot of a strip club.

NSA hands that to the drug war cops at DEA. DEA tail you to where you're dropping off the pot and come up with some reason to pull you over - or make one up. Whatever. They claim to "smell drugs", bring a doggie over, you're busted.

YOU think it was just bad luck, not realizing the entire arrest and evidence must be thrown out under clear US case law on illegal searches and seizures. But you have no way of knowing that you've been illegally snooped on.

The DEA is supposed to turn over what really happened to the prosecutors, who are in turn required to turn that over to your lawyers as "Brady material". But the DEA had a formal plan in place to violate this to preserve the secrecy of illegal evidence gathering.

Again: this is not theory, it's not speculation, we have the actual secret agreements under which they pull this stunt - a literal conspiracy to lie to every judge and defense attorney in the country in a systematic and illegal fashion.
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Old February 16, 2014, 12:44 PM   #3
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Jim, Thanks! That is what I was looking for. My searches also brought up this
< http://images.politico.com/global/20...coverymot.html > for a lawsuit filed this January.

Seems to me this also opens up another "appeal" can of worms if the Government denies they have this information, get a conviction and it is then later revieled they do have it, or should have had it. There is no way to put a value on the trust in our legal system not to mention our trust in Governmant.

Best Regards,
James
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Old February 16, 2014, 04:37 PM   #4
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Probably does not apply to state prosecutions. I have a hard time imagining that a federal secret agency like the NSA would cooperate with a local police department. For the locals, profiling seems to work just as well. Around here, the California Highway Patrol had a string of successes pulling over drug mules. Profiling was alleged and denied, and a local trial court concluded that it wasn't happening--but the number of busts out on the Interstate have dropped significantly since.
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Old February 16, 2014, 08:25 PM   #5
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I don't know if any state-level law enforcement are involved. I suspect very few but there may be some who have a personal connection of some sort back to the NSA and are considered "trusted enough" by the NSA to be brought into the scam.

But by and large, no, this is a federal thing.
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Old February 16, 2014, 09:15 PM   #6
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This may be a Federal thing but how would that play if you charged with a Federal crime like bank robbery or other Federal crimes? Are they somehow able to make themselves supena proof? When one of these cases does get to the Supreme Court are they going to have to come clean about what they are really doing? Does the Supreme Court have secret proceedings for something like this that has so many secrets at its core?

When this was done under the 1960's "Mission Impossible" type operation they had deniability but I am thinking that is pretty much gone.

Best Regards,
james
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Old February 16, 2014, 09:46 PM   #7
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You have to understand that if the scam works, and you're a defendant in a criminal trial (read: the ONLY one to have standing to challenge the scam) you will never, ever know you were scammed.

If it isn't clear yet: the United States federal government has conspired across multiple agencies to violate the hell out of the 4th Amendment, and commit mass perjury and fraud upon courts and defendants across the country.

This is just cause for civil war to restore the constitution.
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Old February 16, 2014, 10:56 PM   #8
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Quote:
It is my understanding that the government has to hand over all evidence it has if they are charging you with a crime.
Your understanding is incorrect. The government is constitutionally required to disclose information (not just "evidence") which is the hands of the prosecution team which is exculpatory (favorable to the defendant). It gets a bit complicated as to what constitutes the "prosecution team." It would include, for example, all exculpatory information in the hands of the police officer investigating the crime even if the prosecutor never learns of it. There are other cases where knowledge is not imputed to the prosecutor when the connection between the prosecutor and the person/agency holding the information becomes more attenuated. A discovery motion directing attention to specific agencies and/or specific types of information is advisable when possible.

The federal government and most (all?) states have additional rules which require some sorts of information be turned over to defendants. See Federal Rule of Criminal Procedure 16 for what the federal government must disclose.
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Old February 16, 2014, 11:02 PM   #9
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Jim, I got the conspiricy and scam part. Truth is that is so much bigger than I am with my one vote I don't even know how to begin to address it other than try to cast my vote hopefully to a candidate who actually opposes this kind of data collection on citizens that haven't broken any laws.

My question has to do with how come the metadata collected is not required to be part of every trial the Federal government brings to court. If the government has evidence my understanding is they have to make it available for the defence if not there is cause for a mistrial.

Gonna call it a night.
Thanks, James
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Old February 17, 2014, 12:16 AM   #10
Jim March
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Quote:
Your understanding is incorrect. The government is constitutionally required to disclose information (not just "evidence") which is the hands of the prosecution team which is exculpatory (favorable to the defendant). It gets a bit complicated as to what constitutes the "prosecution team." It would include, for example, all exculpatory information in the hands of the police officer investigating the crime even if the prosecutor never learns of it.
True. Thing is, evidence that there was a 4th Amendment violation from hell would absolutely be required as part of the turn-in, known technically as the "Brady disclosure file".

This isn't just "fraud" or "scam", this is a criminal conspiracy to undermine the constitution.
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Old February 17, 2014, 11:48 AM   #11
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Quote:
The government is constitutionally required to disclose information (not just "evidence") which is the hands of the prosecution team which is exculpatory (favorable to the defendant).
Does that mean that if they have information which is "not favorable to the defendant" that they wouldn't have to disclose it?

I can see where it would get confusing real quick.

I would also like to point out that having a written plan to do something, and doing that thing are not the same thing. We have a plan to deal with extra-terrestrial invasion, somewhere, I'm sure...

like a lot of people, I'm a bit foggy on the "meta-data" thing, but I can see a large possibility for both intentional and unintentional abuse and misuse.

Finding a document with a plan to do it is a serious wake up call, but only rock solid proof of illegality will allow anything to be done about it.

If their response to such a document is essentially "well, yes, we did write that up, kind of a "what if" study, and we never intended to implement it. It got filed, and you found it, that's all..." what can you do?

Other than watch closely from now on, or maybe seek to get the individuals responsible some other employment, without rock solid proof of actual wrong doing, not much.
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Old February 17, 2014, 02:13 PM   #12
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Quote:
If it isn't clear yet: the United States federal government has conspired across multiple agencies to violate the hell out of the 4th Amendment, and commit mass perjury and fraud upon courts and defendants across the country.
If that is indeed the case, you guys have some major issues on your hands. That is seriously scary stuff... Whatever happened to for the people and by the people?!
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Old February 17, 2014, 08:26 PM   #13
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Quote:
Does that mean that if they have information which is "not favorable to the defendant" that they wouldn't have to disclose it?
No, but as a practical matter most unfavorable information is disclosed because it is contained either in statements made by the defendant, results of scientific tests (DNA, ballistics, etc.), and documents or objects which may have to be disclosed. They only have to disclose the items, they don't have to explain how they might be used against the defendant.

Under the federal rules, statements made by witnesses don't have to be disclosed until after they testify. However, I've seen federal courts order disclosure shortly before a witness testifies (24 hours) to avoid delays. I'm sure there's some variance there. The government sometimes keeps witness names close to the vest and doesn't disclose them until trial. This can lead to continuances which judges never like. So, the government has to take that into consideration.

BTW, a defense request for discovery, other than exculpatory evidence, triggers reciprocal discovery obligations.
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Old February 17, 2014, 11:54 PM   #14
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Above the law?

Quote:
Originally Posted by 44 AMP
I would also like to point out that having a written plan to do something, and doing that thing are not the same thing.
I think it goes far beyond a Federal agency and one particular action. When you have a law enforcement agency make a formal plan that involves, among other things, circumventing the constitution and perjury on a large scale, I doubt most people would believe that agency could properly enforce the law.

Quote:
Originally Posted by 44 AMP
Finding a document with a plan to do it is a serious wake up call, but only rock solid proof of illegality will allow anything to be done about it.
I'm not sure how much proof you are going to have that agency X received warrantless collected information Y and acted on it for situation Z when, among other things, you have officials lying about it. The only way to fix the problem is to shut down all the warrantless collection of data like the NSA is currently engaged in...
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Old February 18, 2014, 01:13 AM   #15
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I'm a bit foggy on the "meta-data" thing
I'll try not to get too fancy, but basically metadata is data about data. For instance, this website as you see it and the information within it is data. If you have a Windows computer, hit Ctrl+U. The window that pops up is what the website is made up of, or the metadata.

You'll notice that you can still find posts within the websites metadata, but that's because this website is open source and full of information. The metadata in its rawest form is simply the framework of the site. In other words, if you were to be given only the raw metadata from this website, you would be able to reconstruct only a very small, insignificant portion of it with minuscule amounts of useful information, if any at all.

Hope this helps.
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Old February 19, 2014, 09:26 PM   #16
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so, meta-data is the framework of the sites we visit, not what we do or say there?

how is that sensitive information?

or am I still in the dark on this?
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Old February 19, 2014, 10:04 PM   #17
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Quote:
so, meta-data is the framework of the sites we visit, not what we do or say there?

how is that sensitive information?

or am I still in the dark on this?
As it applies to the internet, yes. A similar principle applies to other technologies, and in the end, it is all merely the framework, not what is said or done within it.

As for sensitivity, I'll use Facebook as an example. If you were to have the metadata from Facebook, you'd be able to see that stuff happens and when it happens, but not what happened, why it happened, or even where it happened. I don't think information like that is too terribly sensitive, but perhaps the perception of sensitivity is intensified with the expectation of privacy that anybody who's Facebook account you may be looking into has.
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Old February 20, 2014, 08:50 AM   #18
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Maybe the term "meta data" has been mis-used when talking about the NSA and its programs. When I started this thread I used the term I had heard and read I thought common use to describe the collecting of phone records including phone numbers, location of the persons making and receiving the call, emails, credit card purchases and I am sure other information about private citizens that have not committed a crime or suspected of committing a crime.

Someday it may be revealed they also have the content of phone calls. If not digital recordings then software that converts voice into text. I have been playing with such software for a couple of months and it works spooky good.

Above brings me back to my reason for starting this thread.
Scenario; Say you are charged with a bank robbery committed 6 months ago in a town you haven't been in for several years. You know you didn't do it but there is circumstantial evidence such as someone saying or video that someone that looked like you did the crime. If the government has collected through the NSA program or another data collection program information that would help your defense my understanding is they have to make this information available to the defense and courts.

I know we are not going to get any satisfaction here. A lot of very smart people have come out and said these programs are clearly un-constitutional.

As a working tax payer I guess I had better do some actual work.

Regards,
James
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Old February 20, 2014, 09:16 AM   #19
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Right, "metadata" generically means information about a file or data about other data. So, metadata about phone calls would be the numbers called from and to, the dates and times, length of calls, and even location of the parties during the conversation (via cell tower). That can be pretty powerful information by itself. Metadata about emails would include sender, recipient, subject line, length of message, when sent, when received and when read, and how the message was routed (locations, etc.).

When you take a photo with a digital camera or smart phone, there is normally metadata imbedded in the photo itself which will vary by device. It can include location information (GPS enabled smart phone), dates, shutter speeds (on some cameras), and other information. The metadata which websites may glean from your visits include your email address (depending upon browser settings), browser used, and your URL. They can also use tracking cookies to see other places you visit. A lot of sites use advertising which employs tracking cookies to see where you visit so they can target ads to you. All this is metadata.

The metadata about the website itself, or the webpage, often includes what html editor or other programs were used to create the page or website, version of html used, descriptive information that they hope search engines will pick up, and other information not displayed on the page itself in a browser. I doubt this is very useful to intelligence agencies on a widespread basis.
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Old February 20, 2014, 02:20 PM   #20
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So, the govt can know that phone A called phone B at 10:17PM Jul 17, the call lasted 4min 18sec, and both phones are in the 57th state Obama visited on his last campaign. That's meta data, and ok?

But if they listen to what was said in the call, that's "wiretapping" and needs a warrant to be legal?

Is that about right?

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Old February 20, 2014, 02:24 PM   #21
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44 Amp -- You've got it except the locations can be more precise than statewide.
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Old February 20, 2014, 04:32 PM   #22
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Yes, that is metadata. The actions of the government and the interpretation of law are beyond the scope of my comfort zone though.
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