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DOJ: Defendant Has No Standing To Oppose Use of Phone Records 396

Posted by Unknown Lamer
from the defense-is-futile dept.
An anonymous reader writes with news of a man caught by the NSA dragnet for donating a small sum of money to an organization that the federal government considered terrorist in nature. The man is having problems mounting an appeal. From the article: "Seven months after his conviction, Basaaly Moalin's defense attorney moved for a new trial, arguing that evidence collected about him under the government's recently disclosed dragnet telephone surveillance program violated his constitutional and statutory rights. ... The government's response (PDF), filed on September 30th, is a heavily redacted opposition arguing that when law enforcement can monitor one person's information without a warrant, it can monitor everyone's information, 'regardless of the collection's expanse.' Notably, the government is also arguing that no one other than the company that provided the information — including the defendant in this case — has the right to challenge this disclosure in court." This goes far beyond the third party doctrine, effectively prosecuting someone and depriving them of the ability to defend themselves by declaring that they have no standing to refute the evidence used against them.
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DOJ: Defendant Has No Standing To Oppose Use of Phone Records

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  • Just remember... (Score:5, Insightful)

    by Forbo (3035827) on Monday October 14, 2013 @08:06PM (#45127575)
    Anything they suck up in their endless surveillance will only ever be used AGAINST you, never for your defense.
    • by Jeremiah Cornelius (137) on Monday October 14, 2013 @08:19PM (#45127697) Homepage Journal

      Not just a provocative Slashdot Discussion Title... But the horrible inevitability you live in today.

      • by tuxgeek (872962)

        Yep, my thoughts exactly!
        Welcome to the Divided Police States of America where you are guilty of anything the gestapo can think up against you, until you can prove yourself innocent .. which isn't going to happen.

        If you're an American, probably best to find yourself a remote hole to crawl into until the big meteor or comet that's headed our way hits the planet and resets the game back to start.

        • by noh8rz10 (2716597)

          i don't understand, is this summary about the argument that the prosecutor is making, or is this the ruling by the judge.

          • by Aighearach (97333) on Monday October 14, 2013 @11:27PM (#45128881) Homepage

            It is, or will be, both, in this case. This is nothing new, even if it is pushed as "news." The way it works, if a company has records about you, those records do not belong to you. And if they are being searched, the search warrant deals with who owns the records. So a defendant can oppose admitting something as evidence, but they cannot challenge the search warrant, because it is not their record; it is a record about them. It is the phone company that has standing to challenge the search warrant itself.

            I don't see why people keep making a fuss about this part, the details seem pretty clear, easy, and correct to me. I'm against the broad warrants, but I don't see why having an opinion one way or the other about if the practice should be allowed should change the factual analysis of who has legal standing to challenge it in court.

            And even if he had standing, this isn't the sort of thing that would give him a new trial. Even if he had standing, and even if that warrant was improper, it doesn't bring his guilt into question. It would not, for example, get rid of the bank records of his financial transactions with terrorists.

            • by tftp (111690) on Monday October 14, 2013 @11:34PM (#45128915) Homepage

              It would not, for example, get rid of the bank records of his financial transactions with terrorists.

              Charities and other money-collecting entities are put on the list of terrorist groups all the time. Who can tell if some charity is on that list? Who will check? How close the match has to be? What if you send money on Jan. 01, and the group is declared terrorist on Jan. 05? Or a year later?

              The safest mode of operation is to not send money to anyone.

            • Re: (Score:3, Insightful)

              by Anonymous Coward

              We NEED to be allowed to challenge stuff like that in court. If you cannot challenge evidence being used against you just because it does not explicitly belong to you, the road this opens is quite fatal. Anyone can use anything against you so long as it's not yours and you're not allowed to fight back? That means you can't even get false evidence dismissed, let alone get a mistrial out of it. That stuff is now 'real', and uncontested.

              Now when the king accuses you of treason, you either say yes, or you are n

            • by girlintraining (1395911) on Tuesday October 15, 2013 @12:16AM (#45129057)

              don't see why people keep making a fuss about this part,

              They're making a fuss about it because companies don't give a flying fuck through a rolling doughnut about your civil rights, or anyone else's. They're only too happy to cooperate with the government, or anyone else with money. These records contain more personal information than would often be obtained if I ransacked your house. And having a phone, internet, etc., is essential for surviving in today's society. It isn't optional if you want a job, friends, or anything other than living in the woods. Corporations track everything about you; Bank records, cell phone records, medical records -- everything you do has a record of it kept by a corporation, somewhere.

              It's an attempt to deprive someone of their rights against unreasonable search and seizure by simply asking somebody else to do it. And by attempt, I mean they already did it. And by already did it, I mean they've been doing this since the 1960s; but improvements in technology now mean they can do this globally, against everyone, for next to nothing. It's like the argument about how sharing music, etc., was legal... until advances in technology made it trivially easy, and suddenly, we had to throw people in jail for decades at a go and fine them hundreds of millions of dollars for doing the exact same thing, except they were doing it faster, and better, now.

              Now personally, I don't care that the government wants to collect 'all the things', but they need probable cause to search all the things. In other words, collect everyone's cell phone records if you want, but you need a reason to look at them that passes constitutional muster. Because if we allow this to stand, then everyone will be a criminal in some fashion, and the government can, via selective enforcement, get rid of anyone they want.

              The fact is, the laws are so complex that even our own government can't keep track of them all. If you let them gather evidence on everyone in bulk, you've created a system of efficiently removing political adversaries under the guise of the justice system. It all but destroys the democratic process.

              THAT, is why people keep making a fuss; They can't create eloquent arguments to explain this, but it doesn't mean their fears are any less justified!

            • by hot soldering iron (800102) on Tuesday October 15, 2013 @12:29AM (#45129111)

              An improper warrant results in dismissal of the evidence it produces. It's called "fruit of the poisoned tree". I'm not a lawyer, but our lawyer used it in court once to keep my brother out. When police raid a house without a warrant, everyone walks. When police get evidence without a proper warrant, it is removed with prejudice. A proper warrant is a vital requirement for the collection of evidence.

              This is basically accepting someone else's word, their records about you, as evidence. It is now legally acceptable for the government to enter "hearsay" as evidence against you. You aren't even allowed to challenge it, like you can any other evidence. It basically boils down to, "You're guilty because we say you are. Now take it like a bitch!"

              • by Fjandr (66656) on Tuesday October 15, 2013 @06:01AM (#45130323) Homepage Journal

                There are now decisions on record allowing the use of tainted evidence so long as the police obtained it by "accidentally" violating procedural rules.

                Now it's only thrown out if the defendant can prove the police violated due process intentionally, which is a much higher bar for getting evidence thrown out. Of course, with the process above, you may not even be able to see the evidence, let alone contest it.

                • by Hatta (162192)

                  Not only that, but "parallel construction" allows the use of evidence obtained through knowingly illegal methods. What they do is illegally search everyone's records, find some suspects, and make up a story about how they found those suspects legally. They tell that lie to the court, and get a warrant based on complete fiction.

                  Since you can't prove that, e.g. an anonymous tip was not placed that lead the police to request your phone records and search your garbage (both of which are legal without a warra

    • Well I guess you still have a right to remain silent even when on personal phone calls.

  • Scary (Score:4, Insightful)

    by bob_super (3391281) on Monday October 14, 2013 @08:06PM (#45127579)

    "when law enforcement can monitor one person's information without a warrant, it can monitor everyone's information, 'regardless of the collection's expanse.' "

    -- totalitarian cliche goes here --

    • Re:Scary (Score:5, Insightful)

      by gweihir (88907) on Monday October 14, 2013 @08:24PM (#45127753)

      The really scary think is that they can make claims like this in the open without fear of repercussions. Totalitarian bureaucrats all over the world must be so proud to have the US finally in their ranks.

    • Re:Scary (Score:5, Insightful)

      by Anonymous Coward on Monday October 14, 2013 @08:36PM (#45127839)

      This is actually a good development. This is the type of case - supported by our government's pubic declaration that no more privacy actually exists (with or without a warrant) - that will end up in the SCOTUS. We may finally get this crap struck down ... or we'll all get the officially sanctioned OK to rise up against our oppressive government.

      • Re:Scary (Score:5, Insightful)

        by Desler (1608317) on Monday October 14, 2013 @08:37PM (#45127849)

        SCOTUS striking this down? You're joking, right?

      • by Anonymous Coward

        Are you talking about the same Supreme Court that ruled the ACA's provisions forcing everyone to purchase something as constitutional, when it clearly isn't? Or a different Supreme Court?

        • Re:Scary (Score:4, Informative)

          by Anonymous Coward on Monday October 14, 2013 @09:23PM (#45128161)

          Or a different Supreme Court?

          It's the one that ruled that government has the right to tax people to pay for something it was already paying for. Namely, hospital visits that the patient is unable to pay for. You know, since we won't allow the hospitals to refuse treatment to people who are unable to pay.

          I know you're upset at no longer getting a free ride, but please, give it a rest.

          • However, the federal government does not have that 'right', nor does it have that 'authority'. It is allowed to do what the Constitution allows it to do. Forcing American citizens to buy products from private companies is not one of the powers listed.

            • Re: (Score:3, Interesting)

              by adamstew (909658)

              You're not forced to do anything. It is a tax for not buying health insurance. Your choice is to either buy health insurance or pay more tax.

              Not very dissimilar to the tax credit for mortgage insurance. One could argue that the government is forcing people to have a mortgage. Not true. They are encouraging people to take out mortgages by giving people with mortgages a tax break. The choice is to either buy a mortgage or pay more tax.

              It really is an argument of semantics, but if you boil that all away,

              • Re:Scary (Score:5, Interesting)

                by amiga3D (567632) on Monday October 14, 2013 @11:10PM (#45128773)

                Kind of like someone putting a gun to your head and saying "pay me ten grand or I blow your brains out!" No one is forcing you to pay, you can always take the other choice. Listen to yourself. If they gave you a tax deduction for buying insurance your analogy would be fair. In fact, years ago people got tax breaks for their insurance premiums. They took that away and their answer is "buy insurance or pay a tax" so that now you get penalized on the back side as well as the front side. Think before you post.

                • Re:Scary (Score:5, Interesting)

                  by adamstew (909658) on Monday October 14, 2013 @11:28PM (#45128887)

                  Like I said before... it's an argument of semantics... getting a tax break for buying insurance is, for all intents and purposes, the same thing as having a tax penalty for not buying insurance. Either way, you are paying more in taxes for not buying health insurance...Just like you are paying more in taxes for not buying a mortgage...or paying more in taxes for not putting money in to your 401k...etc...etc...

                  To put it in terms a programmer can understand:

                  $tax=$tax+1000; if (hasInsurance($citizen)) { $tax=$tax-1000; }

                  is the same thing as

                  if (!hasInsurance($citizen)) {$tax=$tax+1000;}

                  Either way, if hasInsurance($citizen) is false, then the tax goes up by 1000.

                  • Re:Scary (Score:4, Interesting)

                    by amiga3D (567632) on Tuesday October 15, 2013 @12:10AM (#45129041)

                    You really can't see the difference? If I buy a 700 dollar a month policy (what I have now) then I pay 700 bucks for that insurance. I already paid tax on that money when I made it through payroll deduction. Now if I decide not to take insurance and instead stick that money in my pocket they will take the original tax PLUS more money as a fine to penalize me for not doing what they want me to do. That is Double taxation. Now we go to the other scenario. I pay tax on the 700 dollars through payroll deduction when I make it. I pay my 700 dollars to the insurance company and at the end of the year 1 take a deduction for 700 dollars times 12 for buying Insurance. See the difference. Under scenario number two I actually get a break for doing what they wanted me to do instead of the assfucking I got in scenario one or the neutral effect that I had before the "Affordable Care" act. If they really wanted to be fair they would have used scenario 2 but instead they're fucking me. I know it and I fucking don't like it. Maybe I have to take it but I'm pissed about it and I don't give a shit who knows it.

                    • Re: (Score:3, Insightful)

                      by Anonymous Coward

                      You really can't see the difference? If I buy a 700 dollar a month policy (what I have now) then I pay 700 bucks for that insurance. I already paid tax on that money when I made it through payroll deduction. Now if I decide not to take insurance and instead stick that money in my pocket they will take the original tax PLUS more money as a fine to penalize me for not doing what they want me to do. That is Double taxation. Now we go to the other scenario. I pay tax on the 700 dollars through payroll deduction when I make it. I pay my 700 dollars to the insurance company and at the end of the year 1 take a deduction for 700 dollars times 12 for buying Insurance. See the difference. Under scenario number two I actually get a break for doing what they wanted me to do instead of the assfucking I got in scenario one or the neutral effect that I had before the "Affordable Care" act. If they really wanted to be fair they would have used scenario 2 but instead they're fucking me. I know it and I fucking don't like it. Maybe I have to take it but I'm pissed about it and I don't give a shit who knows it.

                      By *not* purchasing insurance you are placing the costs of the risk that you may need significant medical attention on society rather than on yourself. As such, you are externalizing the risk of injury and the medical costs associated and "assfucking" your neighbors in your haste to accumulate wealth.

                    • by Hatta (162192)

                      If you're not buying insurance, the only party getting fucked is the rest of us when we have to pay for your hospital stays. Why do you expect to "get a break" just for paying your fair share?

                • by Hatta (162192)

                  No, it's like someone putting a gun to your head, and saying "pay into this system that benefits us all, or pay a small fine that in no way comes close to covering your continued access to hospitals".

            • by iamhigh (1252742)
              So if it was government run, and it was a tax, the argument that it is unconstitutional goes away, correct?
              • Re:Scary (Score:4, Interesting)

                by I'm New Around Here (1154723) on Monday October 14, 2013 @11:16PM (#45128823)

                More or less, yes, that is correct.

                But it isn't government run, and requiring me to buy a product from a private company is in no way a tax. The fact that the fine for not buying a product is paid to the IRS does not make the fine into a tax.

              • by kpoole55 (1102793)

                Thats' correct, SCOTUS decided that the ACA was not a fee driven system but a tax driven system so it was within the government's domain to impose such a system. The only thing that everyone should remember was Obama's no new taxes rallying cry that got him elected. Turns out it wasn't true. Oh wait, he's a politician, so we don't have to be surprised. do we?

            • by Shavano (2541114)

              The authority is under the authority to impose income taxes -- you pay it as part of your income taxes and you're exempted if either (a) you don't have enough income or (b) you are somehow providing for health insurance, whether it's through your employer or otherwise.

      • by wjcofkc (964165)
        I fear it's the latter, but I'll give the course of events their chance to play out in our favor.
  • Really? (Score:4, Interesting)

    by PapayaSF (721268) on Monday October 14, 2013 @08:11PM (#45127625) Journal

    This goes far beyond the third party doctrine, effectively prosecuting someone and depriving them of the ability to defend themselves by declaring that they have no standing to refute the evidence used against them.

    IANAL, but this statement seems overheated and inaccurate. Of course the defendant can "defend themselves" and "refute the evidence used against them": they can claim they didn't make those phone calls, for instance. What this case seems to say is that they can't simply have the evidence thrown out. That seems like a critical distinction.

    • Re:Really? (Score:5, Insightful)

      by ebno-10db (1459097) on Monday October 14, 2013 @08:17PM (#45127683)

      The argument makes sense to me. AFAIK a defendant has the right to know specifically how the evidence against him was collected, and to be given any potentially exculpatory evidence. If you want to claim "national security", then you can't prosecute.

      • Poisonous tree (Score:5, Interesting)

        by gd2shoe (747932) on Monday October 14, 2013 @08:31PM (#45127803) Journal

        We know (now) how the evidence was collected. We also know that most of it was collected without probable cause. The issue isn't the method of collection, but the justification for it. This isn't exculpatory evidence that they're withholding; it's evidence that they're using, but was obtained through improper means.

        This is the "fruit of the poisonous tree" argument. It doesn't matter if it's true or not; evidence illegally collected by the government can't be used in court because of the "slippery slope" precedence that it sets.

        • Re:Poisonous tree (Score:5, Informative)

          by Jason Levine (196982) on Monday October 14, 2013 @09:12PM (#45128085)

          The issue isn't the method of collection, but the justification for it. This isn't exculpatory evidence that they're withholding; it's evidence that they're using, but was obtained through improper means.

          Actually, it's both. From the article:

          FBI Deputy Director Sean Joyce recently revealed to Congress that the FBI had also conducted another investigation into Moalin's activities in 2003 and ultimately concluded that there was “no nexus to terrorism.” This evidence was kept from the defense during trial.

          So not only didn't they collect evidence wrongfully, but the evidence they collected showed that he was innocent and they hid this from the defense. This isn't just slippery slope, this is greasing the slope and then shoving the American people down it!

          • by gd2shoe (747932)

            Hmm. Ok.

            Just to be contrary, I wonder if the NSA was sharing data with the FBI in 2003. We know they weren't prior to 9/11, and they have been trying hard to keep this program secret. (when did this program start, I wonder?) It's possible there was no evidence to be had in 2003, or that most FBI agents were cut out of the loop.

          • Re: (Score:3, Informative)

            by cold fjord (826450)

            Actually, it's both. From the article:

            FBI Deputy Director Sean Joyce recently revealed to Congress that the FBI had also conducted another investigation into Moalin's activities in 2003 and ultimately concluded that there was “no nexus to terrorism.” This evidence was kept from the defense during trial.

            So not only didn't they collect evidence wrongfully, but the evidence they collected showed that he was innocent and they hid this from the defense. This isn't just slippery slope, this is greasing the slope and then shoving the American people down it!

            You didn't get that right. They closed the case in 2003 and a new one was opened after they were tipped off based on new evidence showing a connection to terrorism. In this case it appears to have been based on direct contact with an overseas terrorist. That would seem to be proper.

            Hearing of the Senate Judiciary Committee on Strengthening Privacy Rights and National Security: Oversight of FISA (Foreign Intelligence Surveillance Act) Surveillance Programs - July 31, 2013 [tumblr.com]

            MR. JOYCE: ...... So initially the FBI opened a case in 2003 based on a tip. We investigated that tip. We found no nexus to terrorism and closed the case. In 2007 the NSA advised us, through the business record 215 program, that a number in San Diego was in contact with an al-Shabab and east — al-Qaida east — al-Qaida East Africa member in Somalia. We served legal process to identify that unidentified phone number. We identified Basaaly Moalin. Through further investigation, we identified additional co-conspirators, and Moalin and three other individuals have been convicted — and some pled guilty — to material support to terrorism.

            So based on this it doesn't appea

        • Re:Poisonous tree (Score:5, Insightful)

          by Rich0 (548339) on Monday October 14, 2013 @10:48PM (#45128669) Homepage

          We know (now) how the evidence was collected. We also know that most of it was collected without probable cause. The issue isn't the method of collection, but the justification for it.

          Actually, the method is also important. If the government claims they intercepted an email sent by the defendant, how does a jury know whether he actually sent that email if the defense can't subject the government's methods to scrutiny. For all they know the government mixed up the email addresses/etc.

          You can't just present evidence against somebody in court without defending the methods under which the evidence was collected.

      • Re:Really? (Score:5, Insightful)

        by PapayaSF (721268) on Monday October 14, 2013 @08:40PM (#45127883) Journal

        A little more background, courtesy of the Daily Mail. [dailymail.co.uk] The Slashdot summary is a bit vague, referring to "donating a small sum of money to an organization that the federal government considered terrorist in nature." Apparently Mr. Moalin once missed a telephone call from "Aden Hashi Ayrow, the senior al Shabaab leader," which makes it likely that a little more was going on than merely the donation of "a small sum of money." You may recall al Shabaab as the group behind the recent slaughter at the Westgate Mall in Nairobi. So to say "an organization that the federal government considered terrorist in nature" is to omit some rather important background. By any rational definition, al Shabaab is certainly a terror group.

        • Is this important? (Score:5, Insightful)

          by Okian Warrior (537106) on Monday October 14, 2013 @09:21PM (#45128153) Homepage Journal

          Apparently Mr. Moalin once missed a telephone call from "Aden Hashi Ayrow, the senior al Shabaab leader," which makes it likely that a little more was going on than merely the donation of "a small sum of money."

          Is this important?

          He's claiming not that the evidence is wrong, he's claiming that it was collected illegally.

          It's often been said that the defense of freedom is the defense of scoundrels (H. L. Mencken [quotationspage.com]). We believe that a kiddie porn merchant has the right to a fair trial, the KKK has the right to assemble, and Rosa Parks [wikipedia.org] has the right to sit in the front of the bus.

          Should we base the legitimacy of rights and freedoms on the character of the accused party?

          • by PapayaSF (721268)

            He's claiming not that the evidence is wrong, he's claiming that it was collected illegally.

            If this guy's calls were to friends in Minnesota and were swept up in one of those "all Verizon records for this three-month period" warrants, I'd say it was illegal. But it seems to have been multiple calls with a terrorist leader in Somalia, so the collection looks legal to me. The 4th Amendment doesn't cover foreigners engaging in war against the US or our allies, and the NSA is supposed to be looking for things like this.

            Mencken notwithstanding, it is not defending freedom to claim that phone conversati

            • by Hydian (904114) on Monday October 14, 2013 @11:05PM (#45128743)

              First, terrorism is not war. It is crime. War is something that occurs between nations. Terrorism has only been treated as an act of war since 9/11 because doing so allows the government to do things that they couldn't otherwise do and it helps to keep the sheep scared enough to not look too closely. If this didn't happen and we treated it like crime (as it should be and always had been in the past) then we would probably be safer than we are now and still have the rights that have been taken away from us for this illusion of security.

              Second, unless my reading comprehension has gone to crap, the 4th amendment doesn't say anything about foreigners. Nor does it apply differently to citizens and non-citizens. This is because just like with all of the Bill of Rights, it is not granting rights to anybody, but limiting how the government may infringe upon those rights. Rights being something inherent in being human and not something that can be granted to you, your citizenship does not play a factor into whether or not you have them. And since the articles in the Bill of Rights do not specify citizenship, the government is equally restricted no matter who the person is (not that it stops them).

              As for the immediate question...it does matter how the evidence was collected whether the man is guilty of what he is accused of or not. Those protections are there for a reason and everybody benefits from them even if it means that a bad guy gets away once in a while. The alternative is for the system to be tilted even further in the direction where innocent people get accused and convicted of things they did not do. It already happens too often.

        • Re:Really? (Score:5, Insightful)

          by ebno-10db (1459097) on Monday October 14, 2013 @09:25PM (#45128167)

          You may recall al Shabaab as the group behind the recent slaughter at the Westgate Mall in Nairobi.

          As terrible as that was, I wish I could say that qualified as a major slaughter in Africa. Are you aware of what's happened in, for example, the Congo in recent years? The Second Congo War was the bloodiest war since WWII, and most Americans have never even heard of it. I don't know if the US should have gotten involved to stop it, but it didn't. Now we're sanctimonious about a mall shooting? That's called a political agenda, not a concern for human life.

        • Apparently Mr. Moalin once missed a telephone call from "Aden Hashi Ayrow, the senior al Shabaab leader," which makes it likely that a little more was going on than merely the donation of "a small sum of money.

          Really?

          Was it really A.H.A. who called?

          Was he really calling the defendant? Or did he misdial the number?

          And I could go on for pages.

          What the government is claiming is that the defendant has NO RIGHT TO ASK for the information necessary to CHECK whether that is what happened, NO RIGHT TO CHECK whethe

          • Re: (Score:2, Informative)

            by PapayaSF (721268)

            Was it really A.H.A. who called? Was he really calling the defendant? Or did he misdial the number?

            From the FBI press release: [fbi.gov]

            At trial, the jury listened to dozens of the defendants’ intercepted telephone conversations, including many conversations between defendant Moalin and Aden Hashi Ayrow, one of al Shabaab’s most prominent leaders who was subsequently killed in a missile strike on May 1, 2008. In those calls, Ayrow implored Moalin to send money to al Shabaab, telling Moalin that it was “time to finance the Jihad.” Ayrow told Moalin, “You are running late with the stuff. Send some and something will happen.” In the calls played for the jury, Ayrow repeatedly asked Moalin to reach out to defendant Mohamud—the imam—to obtain funds for al Shabaab.

            The United States also presented a recorded telephone conversation in which defendant Moalin gave the terrorists in Somalia permission to use his house in Mogadishu, Somalia, telling Ayrow that “after you bury your stuff deep in the ground, you would, then, plant the trees on top.” Prosecutors argued at trial that Moalin was offering a place to hide weapons.

            When Moalin cautioned, however, that the house could be easily identified from afar, Ayrow replied, “No one would know. How could anyone know, if the house is used only during the nights?”

      • by AHuxley (892839)
        The way many countries will be looking to get around out dated notions of "evidence", "collected", "embarrassing" or "potentially exculpatory evidence" is to have a short list of cleared legal defence teams.
        In your name they will view evidence (at their limited clearance levels) with the gov and judge in a secure area. Your lawyer will get back to you and give you the gist of your case in 'public' terms.
        You are now fully aware of any exculpatory evidence in a public court room setting and all your rights
    • by AHuxley (892839)
      So you will be facing the full force of a domestic surveillance state. All your calls get logged and put in a nice 'locked box'. A computer and bureaucrat decides your 'free speech' or 'freedom to assemble' or 'grievances' or 'joke' reaches a where court investigation becomes allowable.
      Your funds are frozen, you are transported around the USA a few times away from your family, friends and your legal team.
      You face court. You have a lawyer of sorts and your going to demand to see what evidence? Expectin
      • Re:Really? (Score:5, Interesting)

        by PapayaSF (721268) on Monday October 14, 2013 @09:18PM (#45128141) Journal

        Look, I'm not cheerleading for the NSA, or defending their dragnet surveillance, which I consider a "general warrant" and thus a violation of the 4th Amendment. I'm just saying that in this case, it looks like they got someone who did a bit more than donate a little money to a questionable organization. When the head of a major terrorist organization calls somebody in San Diego on the phone, that's a pretty big red flag. Noticing that a foreign terrorist leader is calling someone in the USA is exactly what the NSA is supposed to be doing. Did the government do something underhanded to convict Mr. Moalin? It's unclear. It's very possible that this is another Al Capone situation: they couldn't get Capone for the major crimes they knew he had committed, so they got him for tax evasion. (Capone's official story was that he made his money in the second-hand furniture business.) In the Moalin case, it does look like they convicted someone who deserved it.

        • Re: (Score:3, Interesting)

          by ebno-10db (1459097)

          It's very possible that this is another Al Capone situation: they couldn't get Capone for the major crimes they knew he had committed, so they got him for tax evasion.

          And they did it without violating the 4th Amendment. Perhaps in those days school kids actually paid attention when they learned about the Constitution.

        • by Hatta (162192)

          Whether they deserved it is irrelevant. What matters is whether the government obeyed the law.

    • Re:Really? (Score:4, Insightful)

      by Jason Levine (196982) on Monday October 14, 2013 @09:03PM (#45128037)

      One of the big corner stones of the criminal justice system is that both parties have equal access to the evidence and witnesses. If you were charged with murder, the prosecution couldn't have a surprise witness appear, give testimony, and then leave without your lawyer having the ability to cross-examine. If the prosecution has a potential witness, they need to disclose this to the defendant's lawyers ahead of time so that the defense can prepare.

      What the government is essentially saying with this is "we can present 'a witness' (the phone records) but won't allow the opposing side to 'cross-examine' said evidence to cast any doubt that it isn't true." So the jury will be left with the government's side ("these phone records show he's guilty") and the defense's side (shrugs). Who do you think they'd go with?

      Even worse, the article states that the government looked into the defendant's actions again and concluded he had no link to terrorism. This was done before his trial and was kept from the defense. Going back to the murder analogy, this would be like the police finding a gun with prints on the scene, realizing the prints were NOT the defendant's, and then hiding said gun so that the defense couldn't use it to acquit. Actions like this undermine our criminal justice system.

      • Re:Really? (Score:4, Interesting)

        by the eric conspiracy (20178) on Monday October 14, 2013 @09:52PM (#45128319)

        > What the government is essentially saying with this is "we can present 'a witness' (the phone records) but won't allow the opposing side to 'cross-examine' said evidence to cast any doubt that it isn't true."

        Not true at all. The defense certainly can challenge the accuracy of the evidence. What they don't have is standing to challenge the government supoena of the evidence. Basically once you disclose the evidence to a third party you lose any right to claim privacy on something unless there is some kind of privilege, such as doctor patient in force.

        It's actually horrifying that Slashdot is getting so wrought up over this. It's old law, i.e. United States v. Miller (1976).

        Now some people have proposed that this be updated for more modern times. Something that's worth discussing. But the idea this is new is poppycock.

    • The evidence in this particular case was specifically the metadata collected by the phone company; metadata involving terror suspects outside the US. That metadata led the NSA to tip the FBI - " the investigation you dropped in 2008.. well it appears your subject is now connected with a 'hot' number in Somalia (strongly implicated in terror activities). " That led to the FBI re-opening their investigation with this added lead, and through normal channels they escalated to wiretaps and physical searches
  • by Alain Williams (2972) <addw@phcomp.co.uk> on Monday October 14, 2013 @08:11PM (#45127631) Homepage

    get a job at the NSA, cook up something incriminating and toss it over the wall to the CIA/.... The guy who you want to stiff will never see what you made up and so will be banged up without a chance to defend himself. Can't be bothered to get a job there, a package of greenbacks in a brown envelope to a NSA employee with health problems or going through a divorce will do the job.

    Exaggerated, improbable ? Maybe, but not impossible.

    • by Bomarc (306716)
      Don't need to go that far. Just get a phone in their name. Go to the local library, sign in w/ their name, and look up some web sites that might be questionable - call them with the phone in their name. When you get tired of it, make sure the phone is "lost" at their house (or car).
  • The provider almost certainly has a clause in their ToS/Contract specifying that they may turn over records for law enforcement purposes. I am going to guess that legally speaking, Basaaly Moalin does not have a leg to stand on.

    The state security apparatus views third-party services as a way to circumvent pesky legal red tape like warrants. We need more companies that actually fight gag orders and warrantless data requests.

    • The provider almost certainly has a clause in their ToS/Contract specifying that they may turn over records for law enforcement purposes.

      So what? ToS don't trump the Constitution, and "may turn over records for law enforcement purposes" can mean records that are subpoenaed.

      We need more companies that actually fight gag orders and warrantless data requests.

      That would be nice, but I don't think we should rely on the XYZ Communications Corp. to enforce the Constitution. That's the job of the courts, and it'll be interesting to see how this appeal goes.

      • by Meditato (1613545)

        So what? ToS don't trump the Constitution, and "may turn over records for law enforcement purposes" can mean records that are subpoenaed.

        You are confusing private contracts with government charters- the two don't necessarily relate. A private entity can give your data to whoever they want so long as you agree to it by accepting the ToS (provided they include the permission in the fine print). It's not wiretapping. You're giving the private entity free reign, and the private entity is giving the government free reign. Yes, it's legal. Yes, it's constitutional (according to current judicial precedent). The Constitution does not ban your ISP fr

        • You are confusing private contracts with government charters

          No, I'm not.

          The Constitution does not ban your ISP from tattling on you to the government as long as you agree to allow them by accepting their ToS.

          Correction: SCOTUS does not ban it - the Constitution is another matter. Let us not forget that SCOTUS is the same institution that, amongst many other abominations, held for almost 100 years that "separate but equal" was Constitutional.

          BTW, ToS has no bearing in such a matter. That's a matter of civil law. If their ToS doesn't allow that, it doesn't prevent the government from using it as evidence. It means you can sue your ISP from a prison cell.

  • So, if I understand this argument correctly, the only evidence that I would have standing to challenge would be evidence provided directly by me? Isn't virtually all evidence '3rd party' in that it's collected by somebody else, often from something that the suspect doesn't themselves own?
  • This guy knew straight-up he was funding terrorist activities, and is trying to use a technicality to get out of it. This is an abuse of our legal system, but, that just goes to show what a good legal system we have. As insulting as it is that we have to entertain this "appeal", we are entertaining it, entirely seriously, which goes to show who we are as a nation and our commitment to the rule of law and justice.

    Read up on the case, it's enlightening: http://www.fbi.gov/sandiego/press-releases/2013/san-di [fbi.gov]

    • Re: (Score:3, Interesting)

      by kesuki (321456)

      there are a lot of people who send money overseas to poor relatives. i realize in this case it's a real guy trying to fund terrorists but how is that any different from sending money to a relative who happens to be islamic and might someday take up arms against american interests over seas? where does the slippery slope begin and where is the point of no return?
      there are people who can't get jobs because the big companies won't hire qualified americans and insist on h1b visas to fill jobs, it makes me sick

    • which goes to show who we are as a nation and our commitment to the rule of law and justice.

      The fact that we have people getting molested at airports, shoved off into free speech zones, and spied on by the NSA should tell you who we are as a nation; liars. We are not 'the land of the free and the home of the brave'; that is mere propaganda, just like the DOJ's name.

    • by ebno-10db (1459097) on Monday October 14, 2013 @09:13PM (#45128095)

      This guy knew straight-up he was funding terrorist activities

      I don't give a damn. I could care less if he's as guilty as sin. The Constitution is more important than catching some two-bit financial contributor to an organization the US government has labelled terrorist. You want the terrorists to win? Just keep wiping your ass with the Constitution. Then the terrorists win by getting us to abandon what's been the organic law of this country for over two centuries, and which every school child in this country is taught the importance of (apparently many people didn't pay attention in class).

      As insulting as it is that we have to entertain this "appeal"

      We won't know if it's being seriously entertained until he's granted a new trial, and the court takes his case seriously.

      And what's insulting about it? I'll posit that he's guilty. It's still a defense attorney's obligation to try to get his client off. It wouldn't be the first time that evidence was tossed out because of a Constitutional violation. It's more important to defend the Constitution than it is to not let one or two criminals off.

      Read up on the case, it's enlightening

      What better source to get unbiased information than the FBI. Even believing everything the FBI says, this case is penny ante. Why not give them the same strict punishment that HSBC got for knowingly laundering billions of dollars over a period of years for terrorist organizations? I'd worry a lot more about that than a contribution that most people could put on their credit card.

  • Speech (Score:2, Interesting)

    by Anonymous Coward

    If money is speech as is precedent in the U.S, why is his donation to a terrorist group not protected under the first amendment?

    • Re:Speech (Score:5, Insightful)

      by ebno-10db (1459097) on Monday October 14, 2013 @08:24PM (#45127737)

      If money is speech as is precedent in the U.S, why is his donation to a terrorist group not protected under the first amendment?

      Touché.

    • by PapayaSF (721268)

      If money is speech as is precedent in the U.S, why is his donation to a terrorist group not protected under the first amendment?

      Because some forms of speech, even in the form of money, are illegal. I can't buy heroin. I can't claim I own a stolen car, sell it to you, and then use free speech as a defense after the police tow it away, give it back to the rightful owner, and arrest me. I can't solicit someone to murder you and use free speech as a defense.

      • Re:Speech (Score:5, Insightful)

        by ub3r n3u7r4l1st (1388939) on Monday October 14, 2013 @11:04PM (#45128733)

        The list of banned organizations are not public. The Electronic Frontier Foundation could be considered a "terrorist organization" under a secret NSA list. Once you donated to that organization and later the government declares that organization is considered "Terrorist organization" it is too late. It is now for you to sell all your belongings to get a good lawyer just to stay out of jail.

  • by gweihir (88907) on Monday October 14, 2013 @08:22PM (#45127727)

    Obviously they _want_ a police and surveillance state where everybody is a perpetrator and everybody needs to be constantly afraid and keep their mouth shut. The steps to come are extreme behavioral regulations, an one-party system, removal of most personal freedoms, death camps for anybody undesirable etc. Just look a bit at history (Germany, USSR under Stalin,...), or at what North Korea is doing to see where the US will be in 20 years or so if this is not stopped _now_.

    • by roc97007 (608802)

      an one-party system

      I think we've already got this one.

    • by AHuxley (892839) on Monday October 14, 2013 @08:58PM (#45128021) Homepage Journal
      One generation sees "something" and all the rights get weakened to the point of been useless. Color of law, giving more weight to the domestic surveillance findings, a NSL, our allies use the same methods, they where going to protest without the city paperwork and telling the police first.
      Now the legal rights after arrest are been hurriedly closed off.
      No basic rights to protest, no basic rights during the investigation and interrogation, no legal secrecy standing before the court, no public trial with fully presented evidence, make a fuss and other medical options become available.
  • When do they become the DoI... the Department of Injustice?

    • by dbc (135354)

      If one has been paying attention, one would have to conclude that this is the most corrupt DOJ in the nation's history. Yet the press doesn't call them on it, or investigate any of the many curious leads.

  • by DaveV1.0 (203135) on Monday October 14, 2013 @08:31PM (#45127801) Journal
    He is not claiming the evidence is wrong, which is a refutation. He is claiming the evidence was collected illegally, which would allow the court to exclude the evidence. The government is claiming that he doesn't have standing to claim the collection was illegal, only the company the data was collected from can do so because the data doesn't belong to him but rather to the company.
  • Wow. Time to start stocking up on the fourth box [wikipedia.org].

    These dumb fucks in charge really plan to see this through to the end. Not cool.
  • You are guaranteed the right to challenge the ACCURACY and the prosecution's INTERPRETATION of the evidence used against you. You can't challenge the government's ability to get that evidence from a third party. If you could, no one would ever be convicted of anything.

  • Comin' again to save the motherfuckin' day yeah!

  • it's not what is known about you, it's if and how it's used against you. if we aren't now, we will soon be in an age where it's *impossible* to retain your privacy. if you are still trying to retain your privacy, you've probably already lost. if you haven't lost, you're living an increasingly non-technological lifestyle.

    i don't care what the gov't and corporations know about me. i do care if they can use that info to deny me home loans, insurance, health care, etc.

    as for Mr. Moalin, i'd be outraged if he wa

  • If we actually had a department of justice, the entire NSA would already be behind bars and awaiting trial. What Holder is running is an obedience enforcement persecution agency.

    -jcr

  • by speedlaw (878924) on Monday October 14, 2013 @10:15PM (#45128447) Homepage
    Germany, 1930's was a state with rule of law. Bit by bit it was dismantled. We know the end result, but the end result was due to very deliberate chipping away at the underlying laws and through "correct" Judge selection. Really, now that the political class KNOWS that NSA and others are reading all of THEIR mail, who will challenge them ? None of them, and if they play nice, they might get a "tidbit" about their adversary. Osama Bin Laden succeeded beyond his wildest dreams, even if he is dead.
  • by ulatekh (775985) on Tuesday October 15, 2013 @12:50AM (#45129223) Homepage Journal

    When the government chooses to conduct its affairs with such ruthless disregard for its citizens, I'm glad it's shut down, and I hope it defaults on its debt. Nothing else is going to stop these abuses.

    Apparently, the percentage of people that advocate a debt default is up to 10 to 20 percent [ap-gfkpoll.com]. That's a lot of support for something widely perceived as drastic and destructive.

The 11 is for people with the pride of a 10 and the pocketbook of an 8. -- R.B. Greenberg [referring to PDPs?]

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