Lots of you in Hawaii are either getting hammered by Tropical Storm Flossie or preparing for its arrival, but a bit of a morning diversion might be useful.
A reader posed this interesting scenario a couple of days ago.
I am sure that everyone, except for the killer, believes that the murderer of Mary Beth San Juan should be caught and punished as soon as possible.
Let us suppose for the sake of argument that the NSA has in its databank some intelligence information that could help solve the crime. Perhaps they have cellphone records that could pinpoint the location of the victim that could be traced to the ATM that the suspect used in the highly publicized video that is now being shown on the news. Perhaps the NSA has the actual phone conversations from the decedent’s cell phone. Perhaps the NSA has satellite photos that have such high definition that they can pinpoint the location of the Mercedes Benz that appears to have been taken from the dead woman. Whatever the information is, let us suppose for the sake of this argument that it could instantly solve this crime. The question is, if you had the power to order that this critical crime solving information to be made available by the NSA, would you do so?
I’ve got my own response, which I’ll try to add later today, weather and conditions permitting.
In the meantime, your viewpoints and analysis are invited.
And for those tracking the storm:
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Absolutely! That should be the only reason to rationalize NSA. But what about accountability. Thanks for raising this issue.
I detest hypotheticals. They are almost always worded in a way that asks the wrong question or supposes its own answer, even if it has nothing to do with reality.
A similar hypothetical was posed at a dinner party in Manoa right after 9/11. Although it was populated by professors, instructors, and students who you might ordinarily think would be far to the left end of the political spectrum, the group was almost unanimous in its belief that, if the government had in custody a terror suspect who knew the particulars of an imminent, devastating attack, torture of any type necessary to extract the info was justified.
Almost. One person took the position that hypos are for academics but that, in any event, we would be not be any better than the terrorists we oppose were we to engage in similar tactics. A heated argument ensued. The neighbors complained. The police came. But the dissident was unswayed.
Back to THIS hypo, it’s much simpler because it calls for a legal or constitutional judgment, not a moral one. Only evidence that is legally and constitutionally seized (the former being broader than the latter) may be admitted in a criminal trial. Rightly or wrongly, SCOTUS has previously held that bank depositors have no standing to object to the seizure of bank records because they are the BANK’s records, not the DEPOSITOR’s. Here, I can easily see a court holding that a mobile phone account holder has no standing to object to the seizure of metadata relating to the account holder’s calls. The person would have standing to object to seizure of the content of those calls, although there may be an exception to the warrant/wiretap requirements applicable (but too long to discuss) here. As for the satellite surveillance, I suspect that a court would find that, if the location is open/visible to the public and the conduct there visible to the naked eye, the surveillance images would be admissible even if shot from a different planet.
And, so it goes. What’s legal and constitutional is not necessarily right. If the info can’t be used to prosecute and convict the culprit, or even prevents a prosecution altogether (dismissal with prejudice for prosecutorial misconduct?), who cares if it’s “right” or not?
I was waiting for someone else to point this out to ohiaforest but it seems no one else is willing to do so. While it is true that when there is an expectation of privacy or where something is protected by law, a warrant issued upon probable cause is required, in order to obtain evidence that can be used in court, this rule may not apply to information is permitted to be collected under the law and such evidence would probably be admissible in court. This is untested as of yet, however. The reason why the NSA maintains that what they are doing is perfectly legal is because they are authorized to do so by the Patriot Act. Imagine if they have the ability to archiving the complete conversations of every single phone call ever made. The ironic thing is, while the govt may need a warrant to tape YOUR phone conversations, it does not need a warrant to record EVERYONE’s conversations. If everyone’s phone calls are legally collected and archived and subsequently a suspect is identified, they can then go back to their legally archived information and single out the conversations they are interested in. If that information is used to help them catch a terrorist there is no legal problem. The key point is so long as no single person is targeted when the information is collected no warrant is needed. The Patriot Act provides the legal basis that allows them to collect the information. Since the information was legally obtained there is no “fruit of the poisonous tree” problem in using that information to solve a crime if a suspect is not identified until later.
FO, maybe I’ve misheard exactly what NSA is doing or whether it is, in fact, authorized.
My understanding is that metadata is being collected, not conversations. Moreover, at least some have said that the Patriot Act does not authorize either of these activities. In any event, just because the Patriot Act may authorize collection of metadata and/or conversations as a matter of FEDERAL law, that does not make it admissible in a STATE court criminal proceeding.
The search and seizure provisions of the Hawaii Constitution have been interpreted to provide more protection of privacy than have the analogous provisions of the US Constitution. Moreover, the Hawaii Constitution contains an explicit privacy protection, added in 1978, that is directed toward electronic surveillance. The US Constitution does not contain such a provision. Thus, while it may be legal for the NSA to collect such information for intelligence purposes, that does not necessarily make it admissible in Hawaii criminal proceedings.
Just thought I’d “point that out.”
I don’t think that the NSA or any intelligence service has said exactly what they do or what information they collect but those who are familiar with the technology that is currently available would probably tell you that with enough money and armed with the power of govt authority it is possible to collect a lot more than just metadata, phone numbers, IP addresses. As far as privacy protection goes, think of it this way, suppose a Mr. N stands on a street corner taking recording videos of pedestrians as they walk by. Mr. B is one of those pedestrians who walk by and are captured on video. Would you say that he is violating Mr. B’s right to privacy in this situation? I doubt the Hawaii Constitution has any provisions that could be interpreted to say there is a violation of Mr. B’s right to privacy here. Now, imagine Mr. X standing at the same street corner taking videos but he focuses his camera in on only Mr. Y and follows Mr. Y around recording everything that Mr. Y does. When Mr. X singles out Mr. Y as his subject many would say that Mr. Y’s right to personal privacy has been violated. Let’s take it one step further and suppose a heinous crime has been committed and that the police are able to use Mr. N’s video of pedestrians walking by to determine that Mr. B who is now suspected of committing a heinous crime was at that particular street corner at a particular time and this evidence is vital in helping police solve the crime. Now imagine that Mr. N is actually the NSA and Mr. B is actually someone named Baker. Would you think there would be a problem with using Mr. N’s video as evidence in court?
Since they have been doing this since day one, could we get the transcripts and telephone records of all the players in the killing of JFK, the Watergate scandal, Martin Luther King, RFK, Malcolm X, OJ. Its all there. Only it is in the form of analog tape. Lets get going on the transcripts.