#211: Warrantless Spying & Parallel Construction

Tech Policy Podcast

TechFreedom

Technology

4.8 • 45 Ratings

🗓️ 5 January 2018

⏱️ 29 minutes

🔗️ Recording | iTunes | RSS

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Summary

Four years after the Snowden disclosures, Congress continues to wrestle with surveillance issues. These include an ongoing reform battle over Section 702 of the Foreign Intelligence Surveillance Act—a major intelligence surveillance law that targets foreigners but can result in warrantless spying on people in the US. Despite the size of the programs the government conducts under Section 702, and the fact that the FBI currently can query Section 702 data without a warrant, the government has provided notice of its use of 702 surveillance data in only about eight criminal cases. One reason notification may be so rare in Section 702 cases is a practice called “parallel construction,” which the government may also be using to conceal the use of even bigger or more problematic surveillance programs carried out under a separate authority called Executive Order 12333. We are joined by Sarah St. Vincent, Researcher at Human Rights Watch, their report on parallel construction comes out January 2018.

Transcript

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0:00.0	Welcome to Tech Policy Podcast. My name is Ashken Kazarian, and today is our first episode with all female participants.
0:09.6	So we have Sarah St. Vincent from Human Rights Watch. She's a researcher on U.S. national security, surveillance, and domestic law enforcement.
0:19.1	Thank you, Sarah, for being here.
0:20.6	Oh, thank you for having me. I'm excited to talk to you.
0:22.7	We're really excited to talk about parallel construction today.
0:26.3	Sarah, is parallel construction some sort of weird way government build roads, or what is it about?
0:33.9	So parallel construction is basically the government creating an alternative explanation for how it found a piece of evidence in order to conceal what it actually did.
0:45.8	So we've been researching parallel construction at Human Rights Watch for about 18 months.
0:49.2	I've written a report on it that should be coming out early next year in which we document the practice and sort of explain how it works and what some of the potential human rights problems are with it. But you can think of it
0:59.0	as the government creating a story for how it discovered something other than what actually happened.
1:05.4	So you're saying that government somehow gets access to evidence and then they lie about the way they got that evidence?
1:15.1	We do have multiple defense attorneys on the record in this report, characterizing this as a
1:19.5	fiction or lying. I think that, as I was describing to someone recently, it's certainly
1:25.0	omitting the truth. And so whether you think there's daylight between omitting the truth and lying, I think, is a question for you. I mean, law is full of
1:32.1	gray colors. So how common is this practice? Because it sounds terrifying. Our research suggests
1:39.1	that it happens daily, that it's actually a very frequent occurrence. Now, the question I think we need to
1:43.8	ask is,
1:44.5	what is it being used to conceal? And so my research was partly centered around trying to find out
1:49.6	how often it's used to conceal intelligence surveillance, some of the problematic types of programs
1:54.5	that we found out about, for example, through the Snowden disclosures. But parallel construction
1:58.3	can be used to conceal a lot of different law enforcement techniques.
2:01.6	It can be used to conceal the fact that there's a confidential informant in a case.
	...

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