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Secret Evidence and the Threat of More Warrantless Surveillance

US Government Is Pushing for Law But May Be Hiding Its Impact

A man is seen near cyber code and the U.S. National Security Agency logo in this photo illustration taken in Sarajevo March 11, 2015. © 2015 Reuters

Today, the US House of Representatives advanced a bill renewing and even expanding a highly controversial law that grants vast powers to the National Security Agency (NSA) and Federal Bureau of Investigation (FBI). The law, Section 702 of the Foreign Intelligence Surveillance Act, allows warrantless telephone and internet monitoring of non-US citizens abroad – itself a human rights problem – and the capture of potentially enormous amounts of communications of people in the United States.

In theory, if the government were using this surveillance data to investigate and imprison people in the US, defense attorneys would be able to find out and judges able to evaluate whether the surveillance was constitutional. That transparency would mean the public and Congress would be informed about the impact of this monitoring on people facing something as serious as the loss of their liberty.

In reality, this is not the case. As suggested by Human Rights Watch’s new report on secret evidence in US criminal cases, the government may be concealing its use of Section 702 surveillance by deliberately creating an alternative explanation for how it gathered evidence – a practice known as “parallel construction.”

Despite having run massive programs under Section 702 for years, the government has apparently notified fewer than a dozen defendants that it drew on this surveillance during the investigations in their cases. Due to the practice of parallel construction, the public and its elected representatives can’t be confident these are the only cases in which people have faced prison time after warrantless, intrusive Section 702 activities were used by investigators.

This is part of a bigger picture: as Senator Ron Wyden emphasized this week, the NSA and FBI have never provided essential details about how many communications of people in the US they have vacuumed up and searched as a result of Section 702 programs.

Human Rights Watch has called for an end to both Section 702 monitoring and parallel construction. As debates about the renewal of Section 702 move on to the Senate, everyone in the US should be keeping a close watch on whether their representatives are fighting for their right to be free from abusive surveillance, including in the criminal justice context. People in a rights-respecting democracy are entitled to nothing less.

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