However disturbing the recently revealed individualsurveillance programs are, Reuter’s new documents detailing ParallelConstruction, a practice of reinventing how an investigation started, offers the first proof of definite, systemic abuse by the surveillance state. Parallel Construction embodies the dangers, lack of accountability, and opacity that many have feared the modern surveillance state would engender.
Federal agents are now de facto time travelers. That is, they can rewrite the past. Don’t laugh: history is written by the victors.
The Parallel Construction leak reveals the quick rot that overly expansive surveillance power brings. This newest revelation is fundamentally different than other surveillance leaks because the other information leaked, by Edward Snowden, for instance, reveals broad surveillance systems that appear ripe for abuse--but which we do not have definite proof are being abused.
Enter, as always, the Drug Enforcement Agency, an agency that continuously proves it is hell-bent on being appreciated as serious defenders of America’s national security, like an annoying teen that the FBI and NSA won’tletsitatthebigkid’stable. Never mind that the only thing more embarrassing than the DEA’s generallydisastrousenforcementfailure -- not to mention its specific failures, which range from the amusing to the deadly -- is our insistence on empowering them with horrible laws.
TheReutersleak unveils the practice of agencies sharing leads on new investigations with each other through a DEA unit called the Special Operations Division. Two dozen agencies are involved, including the DEA, FBI, NSA, and the IRS. This shoots a hole clean through the NSA’s defense that its invasive programs are necessary and only used for national security--unless you consider busting U.S. citizens in Florida in drug cases anti-terrorism. With a unit like the SOD in place, there can be no principled reason to believe in discrete surveillance among agencies. Still, this is not the abuse. Depending on how the information was originally collected, there are legalmethods of communication for information like this. Opaque as the SOD is right now, it falls again into the frustrating could-be-legal category.
What the SOD documents euphemistically call Parallel Construction, however, is the abuse and the time travel. In order to keep the SOD’s activities under wraps, recipients of tips--’gotothisplaceatthistime,’ for instance--are specifically instructed to invent a different (read: legal) basis for the stop. While certain surveillance laws provide for sharing among agencies, depriving a defendant of the ability to challenge the investigation that lead to his or her arrest is a gross destruction of foundational concepts of investigatory and prosecutorial fairness to defendants.
Allowing law enforcement to rewrite the history of how a defendant was arrested is, firstly, a flagrant inversion of our rights. It eviscerates a defendant’s opportunity to challenge how he or she was targeted for the investigation, which is the critical moment for a defendant to argue that the activity committed upon him or her constituted a search and/or that that search was unreasonable. This is, or at least was, our best defense against surveillance overreach.
Have you ever thought about how you might defend yourself if an officer claimed he saw you do something you didn’t do? Researchers have shown that police K9s, for instance, can be remarkably inaccurate, and officershaveadmitted to encouraging drug-sniffing dogs to ‘alert’ (pawing at or otherwise indicating contraband) which can establish the probable cause necessary to execute a warrantless search. (You can read an ACLU brief for the Supreme Court on K9 efficacy issues here.) Or say police pulled someone over because he was black. How would he prove that he wasn’t the subject of a ‘random’ stop?
The importance of challenging prosecutors at that foundational level cannot be overstated. The Department of Justice, which prosecutes cases investigated by agencies like the DEA, has a near-perfect record in court. Prosecutors aggressively pursue plea deals (another timebomb in the prosecutorial state), securing them for 97% ofcases in 2012. Defendants that hold out for a verdict face a 93% convictionrate (from 2010). It’s worth noting that in 2010, drug cases accounted for 20.6% of criminal cases filed by US Attorneys, while “Violent Crime” accounted for 16.6%, and “Terrorism/National Security Critical Infrastructure” a mere 0.3%.
But the stance that something like Parallel Construction is appropriate seems to hinge on whether one recognizes how deeply it undermines the Fourth Amendment. Reuters interviewednumerousexperts about Parallel Construction, but two that stood out were Nancy Gertner, who was a federal judge from 1994 to 2011, and two anonymous senior DEA officials. The former said “I have never heard anything like this at all,” and “It is one thing to create special rules for national security. Ordinary crime is entirely different. It sounds like they are phonying up investigations.”
The DEA officials? They called it a “technique we use every day,” and said “[Parallel Construction is] decades old, a bedrock concept.”
The DEA’s insidious subversion of the Fourth Amendment and fairness to the defendant is not unique to that agency and the SOD. The database era we’ve entered has de facto time travel written all over it, which is why we must clear up this disagreement over what is acceptable and legal.
To be clear, we should reject wholesale any idea that deprives a defendant of the right to challenge his or her prosecution and investigation, in their entirety. But we also must recognize that in the digital world, evidence is becoming more and more permanent, and the prosecutorial state has a deep interest in preserving it ad infinitum. The practice of Parallel Construction is not so different from the NSA’s ability to find a reason to investigate you (like you spoke to someone who once spoke to a terrorist), and then search through your private digital past, ‘collecting’ data that they didn’t have any right to possess in the first place. And now it turns out they might just be sharing what they find with the DEA, or IRS, or a host of other acronyms.
The two in tandem portend an awful future. And a pessimist’s reading of these leaked documents indicates that this future may already be upon us.
Think of it like the inversion of Minority Report. Everything is recorded today. Screw up once--give the government probable cause for anything--and you have opened the door for all relevant information in your past to be accessed. It’s investigatory time travel. If the Reuters leak is to be believed, we now know that agencies go back through a breathtaking amount of your past, all while looking for new justifications to have initiated that search in the first place, because they’ve been tracking you all along.
Sean Vitka holds a Juris Doctor from Boston College Law School, was a legal fellow at the Open Technology Institute, and is a Google Policy Fellow at Georgetown Law's Institute for Public Representation. He’s been published in numerous places, including the IEET, Slate and the Washington Post.
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