NBC News alerts us to a man who insists that he is not guilty of the charges against him -- and that the NSA can prove it. "A defendant in a Florida murder trial says telephone records collected by the NSA as part of its surveillance programs hold evidence that would help prove his innocence, and his lawyer has demanded that prosecutors produce those records," the network reports. "On Wednesday, the federal government filed a motion saying it would refuse, citing national security."
National security, eh?
As commenter Michael Freddoso notes, "Now that the existence of the data mining program is public knowledge, the fact that the NSA has the records in its possession is no longer a secret, much less a state secret vital to national security. And the contents of the records will not relate to national security in the vast majority of cases where these requests are made. Also, in many cases, particularly criminal cases where the defendant is asserting an alibi, the only person whose privacy would be affected is the person seeking the information." If the records of Terrance Brown, the defendant, were collected, how would it possibly compromise national security to turn them over to his defense attorneys? Citing "national security" doesn't seem to make sense. Of course, that doesn't mean that the government won't win anyway in court by invoking it.
But can that attitude toward NSA data last for long?
Regardless of how it's decided, this case shows how powerful the incentives will be to tap into NSA records for reasons other than counterterrorism. If this man's data really was hoovered up by the NSA -- we have no way of knowing for sure -- liberating it could save an innocent man from prison. Are we prepared to say that the government can hoover up information about you, try you for a crime, and withhold potential evidence of your innocence that it collected and possesses? That prosecutors can use data from NSA spying n some cases, but use of the data by defendants poses an intolerable threat to national security for reasons unclear to everyone?
As a former DOJ lawyer told NBC, "This opens up a Pandora's box. You will have situations where the phone companies no
longer have the data, but the government does, and lawyers will try to
get that data." There are, as well, plenty of cases where prosecutors will want the data first. Society may not give in to the pressure to use the information immediately. But how long will we resist? How long until the surveillance state creeps into more and more areas of American law?