I am a little surprised that nobody else has thought of this. [View all]

[Savannahmann]

I admit, it took me a few hours, but I realized it late last night. I decided to wait and see if anyone else thought about it.

Yesterday there was this thread. http://www.democraticunderground.com/10023000879

The backstory. A man is on trial, right now, for a Robbery. He says the metadata from his cell phone will prove he was no where near the location of the robbery at the time it happened. The Defense served a Subpoena to the prosecutor demanding the information. They said that the information was previously deleted by the cell phone company, and the Government could not provide the information. After the NSA revelations, the Defense is now demanding the information from the NSA.

At the time, my first impression was that this would shut down the program, because it would make it much harder for the Police to send innocent people to prison for crimes they did not commit. Then, I had a second thought much later.

Why not identify criminal organizations through the Metadata? I mean, you have not only the suspect's phone information, but everyone he was anywhere near. By mapping all that data, you can identify those who were in close proximity to the suspect, and then by tracking them, see if they came in contact with anyone else who was at some time close to the suspect. You could create links to the entire organization by tracking this data. The Police must be salivating at the idea of all this information at their fingertips.

I know, it will never happen right? But a defendant has the right to any and all evidence in the possession of the Government, and that evidence can not be withheld because that is grounds for an appeal, and to get the conviction overturned. Lets say that the Government says that information is top secret, and can't be released. Then in ten years, it is declassified. The Defense finally gets to see the information, and sure enough the Defendant was no where near the location of the robbery. The Government has withheld evidence vital to the defense, and allowed an innocent man to go to prison. How many other innocent men or women have gone to prison, people the Government could and should have provided evidence to show their innocence?

How many guilty are free because the Government is letting the local police spin their wheels while metadata of who was close to the location at the time of the murder is sequestered in a top secret file accessible only by idiots like Snowdon.

Oh, now the cat is out of the bag, and every defense attorney will be demanding to see the evidence, and every jury will hear how if only they had that information, the suspect could conclusively prove he was no where near the location of the crime. Some will be absolute BS. Some will be accurately truthful, and some will be just that last bit of doubt the jury needs to find not guilty.

The Prosecution can't do the same thing though, they have to have the actual evidence. They can't say that if only the Federal Government would cough up the data the bad guy would be facing an overwhelming case instead of the circumstantial case now presented.

This is what will get the program shut down. It will become, by court order, the very thing that everyone says it will never be. Because Judges will all sign orders requiring the Government to present the evidence to the Defense, or Prosecution, as part of the gathering of evidence for the trials. The Government can't claim it doesn't exist, and eventually the Supreme Court will rule, and how can they rule that the Government is allowed to withhold exculpatory evidence from the defense when an man, or woman's life is on the line.

Soon it will be every shoplifter the prosecution, and then the defense is demanding the information through subpoena.