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When Everyone Wears a Wire...



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Andy and I disagree on the NSA’s 300 million-wide dragnet, but let no one say the American spirit does not thrive even in adversity. Meet Terrance Brown, currently on trial for armed robbery in Fort Lauderdale:

The FBI and federal prosecutors are using cellphone records in court to try to prove that the five accused men were all nearby when the robbery attempts and planning occurred, as Moss, who is cooperating with the U.S. Attorney’s Office, testified.

The prosecution had told defense attorneys that they were unable to obtain Brown’s cellphone records from the period before September 2010 because his carrier, MetroPCS, had not held on to them.

Not so fast, Brown’s attorney Marshall Dore Louis argued in court documents filed in Fort Lauderdale days after the National Security Agency surveillance program was revealed last week…

Louis argued in court Wednesday that the government should be forced to turn over phone location records for two cellphones Brown may have used because it could prove he was not present for one of the attempted bank robberies, on July 26 on Federal Highway in Lighthouse Point.

“The president of the United States has recognized this program has been ongoing since 2006 … to gather the phone numbers [and related information] of everybody including my client in 2010,” Louis said.

Mr Louis has a point. The phone company no longer has the records, but the government does – the same government that’s prosecuting his client:

 ”The government must be ordered to turn over the records for the two telephones that it attributes to Mr. Brown for the dates which are relevant to this case – the month of July of 2010,” attorney Louis wrote in the motion to compel.
     The attorney claims the records are in the government’s possession, and that it is required to turn them over.
     ”The records are material and favorable to Mr. Brown’s defense; they are evidentiary and relevant to the issues in trial; they are not otherwise procurable by exercise of due diligence; the application is made in good faith and is not intended as a general fishing expedition; and, the records are necessary for Mr. Brown to meet the government’s evidence in this matter,” Louis wrote in the motion.
     He asked the court to subpoena the NSA if it determines that the records are not within the government’s possession or control.

In other words, whatever its other uses, the NSA is now the one-stop shop for all your alibi needs. Needless to say, the US Attorney is being awfully prissy about coughing it up:

U.S. District Judge Robin Rosenbaum agreed to give prosecutors an extra week or two to respond fully after they said they needed more time.

“There are security procedures that must be followed,” Assistant U.S. Attorney Michael Walleisa said of the special protocols the Department of Justice follows when dealing with information, usually used to identify possible terrorist activity, that may have been secretly obtained under the Foreign Intelligence Surveillance Act.

Yeah, yeah, but what’s sauce for the government goose is surely sauce for the accused gander, no?



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