Linda Lye, ACLU attorney (Jason Doiy)
SAN FRANCISCO — When law enforcement agents show up in the right place at the right time, defense lawyers get suspicious.
And the past year’s headlines about secret government surveillance programs have given the defense bar a host of new reasons to question the tactics used to nab their clients. Media reports have offered glimpses of just how sophisticated the government’s toolkit has gotten: Metadata from the National Security Agency. A DEA database of calls that reaches back even further. Stingray devices that mimic cellphone towers to scoop up data.
Now, local defense lawyers are rallying to determine whether the shadowy surveillance programs outlined in news articles have crept into their cases.
Fights are unfolding in two Northern District criminal cases that could mark the first shots in a showdown over tactics that have yet to be fully reviewed by the courts. Meanwhile, dozens of lawyers in the Bay Area received notices from the American Civil Liberties Union late last year that clients in cases now closed had been subject to warrantless cellphone tracking. Several defense lawyers said the possibility that nontraditional surveillance may have been used in an investigation is a new lens through which they now view all their cases.
“It’s a novel question you’ve got to ask about every case you currently have and every case that comes in the door,” said Edward Swanson of Swanson & McNamara in San Francisco.
Of course, trying to determine whether a secret program has been employed in a criminal investigation is a bit like trying to find an iceberg without radar, which is why defense lawyers are working alongside groups like the ACLU and the Electronic Frontier Foundation to wrest disclosures from the government. They are also banding together, pooling information and developing standardized language for discovery requests to draw out information about surveillance methods.
By proving that newly exposed tactics were used against their clients, defense lawyers hope to suppress the evidence that was gleaned and, eventually, to challenge the constitutionality of the surveillance.
It’s likely to be an uphill fight, said Linda Lye, staff attorney at the ACLU of Northern California. The ACLU only recently extracted the information on warrantless cellphone tracking after years of litigation. Upon receiving a list of cases that ended in convictions or guilty pleas, the organization notified defense lawyers that the tactics had been used. For many attorneys, it was the first they had heard of the surveillance.
If defense lawyers don’t get the opportunity to challenge evolving surveillance practices in open court, Lye fears the development of the law could be stunted as technology surges forward.
“What effectively happens is that the government gets to make law on its own and in secret,” she said.
U.S. Attorney Melinda Haag declined to comment on her office’s use of new surveillance technology, saying the issue is the subject of active litigation.
Technology is a critical weapon in the war on crime, and from the government’s perspective, it makes little sense to pass up a new tool, said Leo Cunningham, a former prosecutor who is now a partner at Wilson Sonsini Goodrich & Rosati.
Prosecutors have higher priorities than responding to discovery motions based on mere suspicion that some new-fangled surveillance method was used, Cunningham said. “That takes their time and only impairs their process in preventing crime and catching criminals.”
One government program making waves in the Bay Area defense bar is the Hemisphere Project, exposed last fall by The New York Times. Under the program, sponsored by the U.S. Drug Enforcement Administration, the government pays AT&T to access a vast database of calls. The program helps agents keep track of suspects as they discard their cellphones, according to the Times.
Oakland defense lawyer David Andersen said documents provided to him by the government in discovery reveal that the Hemisphere Project was used to investigate his client, Justin Whipple, an accused murderer and member of San Francisco’s notorious 500 Block Gang.
But even after the disclosure, the government resisted demands for more information. Northern District prosecutors in United States v. Ortiz, 12-119, moved to quash a defense subpoena for all communications between law enforcement and the Hemisphere Project as well as the call records that were produced.
In December, U.S. District Judge Susan Illston upheld the subpoena and officials at AT&T told Andersen they are processing his request. He has been careful not to get his hopes up.
“I trust that some records will come,” Andersen said. “The question of course is whether or not all the records will come.”
Defense lawyers in a separate case, United States v. Diaz-Rivera, 12-030, suspect the Hemisphere Project was also used to investigate their clients. Nearly 750,000 calls were analyzed during the investigation of a drug trafficking ring that stretched from California to the Pacific Northwest. But the government supplied defendants with court orders authorizing the collection of data from just 52 of the 643 unique phone numbers it queried.
Joined by the EFF and the ACLU, Jeffry Glenn of Berman, Glenn & Haight in San Francisco filed a motion in October to compel discovery on behalf of his client, Fortunato Rodelo Lara, and the other remaining defendants in the case.
But prosecutors flatly deny the use of the program. At a December hearing on the discovery motion, Assistant U.S. Attorney S. Waqar Hasib told U.S. Magistrate Judge Elizabeth Laporte the government gathered the phone data using routine “pen trap orders” and administrative subpoenas. Hasib insisted the government should not have to indulge the defense’s suspicions.
“We have to draw the line somewhere,” he said.
Laporte agreed to spot-check the government’s documentation. Not only did the subpoenas appear to be in order, but the information yielded was fully within bounds, Laporte wrote in a Jan. 16 order.
That may be the end the inquiry for the magistrate judge. But the ACLU’s Lye said reviewing administrative subpoenas does not answer the question of whether the Hemisphere Project was used.
According to training slides published by the Times, federal employees are instructed never to refer to the program in official documents. They are also advised to protect the Hemisphere Project by tracking down the information they obtain from an additional source—a technique known as “parallel construction” that further insulates the secret program.
“By hypothesis, the administrative subpoenas are the post-hoc cover up,” Lye said.
‘NOT POTTED PLANTS’
The secrecy shrouding the government’s surveillance programs has led many defense lawyers to wonder if they are the only ones being kept in the dark. It is unclear who in the government knows about the program, the ACLU’s Lye said. It’s possible agents are not sharing the true source of their tips with prosecutors.
For defense lawyers, that means crafting the right questions is just the beginning.
“There’s a real question: Even if we ask, will they tell?” Swanson said. He adds that he and his colleagues are worried about “believing they’ve been given everything when in fact they haven’t.”
Judges want to make sure they are operating with full information as well.
At a December hearing in the 500 Block Gang case, Illston pressed Assistant U.S. Attorney W.S. Wilson Leung for details on the Hemisphere Project. He began to read from a recent story in The Wall Street Journal. Illston stopped him.
“Do you know, Mr. Leung?” she asked. “You’re the U.S. government in this courtroom. I’m asking you.”
In Diaz-Rivera, Laporte was disturbed by the defense suggestion that the “source of information” referenced in the government subpoenas might not be an informant, as typically presumed, but a database. Federal prosecutors reassured her that the source had indeed been human.
“The court has some inherent authority to police the truthfulness and the transparency of the applications that are made,” Laporte said. “Whenever I’ve seen ‘SOI,’ I’ve always assumed that was a person. I would not want to find out it was a machine.”
For EFF Staff Attorney Hanni Fakhoury, the exchange called to mind the controversy last spring over federal agents’ use of so-called stingrays, which pinpoint the location of wireless devices by simulating a cell tower. The ACLU and EFF argued last year that documents submitted in a federal criminal case in Arizona revealed that federal agents in the Bay Area were not informing the court of their use of stingrays.
Although criminal cases can give advocates an opening to drag government secrets into the light, some defense lawyers fear their cases are the wrong venue for litigating the broader Fourth Amendment concerns raised by the government’s surveillance programs.
Government programs like the Hemisphere Project, for instance, appear to capture the records of plenty of law-abiding citizens as well as suspected drug offenders.
“The worry is that judges aren’t always clear-eyed in these contexts about the big issues such as privacy interests when you have some really bad facts,” said Nanci Clarence of Clarence Dyer & Cohen. “The heat of a criminal case isn’t where policy should be forged.”
Moreover, defense lawyers advocate not for society, but for their clients. Still, the fight to pry information out of the government is one the defense bar knows and relishes.
“The government takes steps that aren’t 100 percent by the book, and the leash needs to be snapped to pull them back into line,” Clarence said. “Defense lawyers are not potted plants here. We have a vital role to play in this arena.”
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