The FBI has entered its explanation for its declaration that it won't discuss the NIT (Network Investigative Technique) in open court or with the defense -- no matter what. Its decision to run a child porn website for two weeks while it deployed the NIT has backfired immensely, resulting in successful challenges of the warrant and the evidence obtained. For the most part, the NIT warrant used by the FBI has been declared invalid because it violates Rule 41's limitations on deployment: a warrant obtained in Virginia can't be used to search computers located in other jurisdictions.
The FBI says it will only discuss the NIT with the judge in an ex parte in camera proceeding, cutting the defense entirely out of the loop. It also argues against the defendant's portrayal of the agency as inherently untrustworthy, what with its long history of hiding information from the courts, starting with its Stingray NDAs.
While not directly related to the subject matter at hand, Jay Michaud's lawyer is buttressing his arguments against the agency's trustworthiness with a wealth of released documents showing the FBI routinely demanded law enforcement agencies hide Stingray-related information from defendants, judges -- even other prosecutors.
Michaud's defense also submitted emails obtained with a FOIA request that showed the agency even hid information on surveillance tech from other FBI agents and federal prosecutors. The choice to cut the latter out of the chain of evidence was based on a supposed trend of prosecutors examining FBI surveillance technology/methods before retiring to work as defense lawyers.
What's most hilarious about the FBI's arguments is the fact that it openly questions the legitimacy of documents it released to Brad Heath and USA Today.
The actual emails (assuming they are genuine) show no improper concealment.
This is an awfully strange thing to say about documents originating from its own offices and released, presumably after a review, to a FOIA requester. If the FBI is forced to assume the emails it released are genuine, it argues that they don't actually say what they appear to say -- which is that information about FBI surveillance techniques must be hidden from damn near everybody but especially those who might be called to testify in court.
Nothing in the email suggests that anyone should be deceived or misled. Rather, the email merely urges the common-sense practice of not disseminating sensitive information unless there is a reason to do so. This concept is called “need to know.” It is familiar to anyone who has worked in the military or law enforcement, and it is an entirely proper way to protect sensitive information.
The government says this shows the FBI does disseminate this info, but only on a "need to know" basis. But it says nothing as to why the "need to know" list doesn't include judges, defendants or prosecutors involved in these cases.
And its other arguments are just as terrible, but at least they don't include the FBI raising doubts as to the legitimacy of documents it generated itself. It claims -- as it has in the past -- that the restrictive NDAs it forces law enforcement to sign before using Stingray equipment aren't restrictive and don't heavily hint (if not state outright) that agencies are to let perps walk rather than introduce Stingray-related evidence in court.
[A] careful reading of this material shows no evidence that the FBI has deceived or misled courts or prosecutors.
Technically true. But plenty of law enforcement agencies have. And when these omissions are challenged, they tend to excuse them by citing the FBI's NDA. So, the FBI ties up agencies with NDAs in hopes of limiting disclosures. Then it throws them under the bus when disclosures aren't made.
[T]he FBI made no false or misleading statements to courts, prosecutors, or anybody else in the Andrews investigation. The pen/trap application and related statements in Andrews were made by local law enforcement and local prosecutors.
Yes, but only because they felt they needed to do so, or because they may have been explicitly told to do so after asking the FBI. The FBI cites only this case because Michaud's defense only cites this case. There are countless others where it's been made apparent evidence of Stingray use has been hidden from everyone but the agency deploying the device.
We don't know what the outcome will be yet, but it's apparent the FBI will not be discussing the details of its NIT in court -- even as it tries to make itself out as a paragon of transparency in this filing. It even says it would prefer to handle this in an adversarial fashion (in the "allow the defense to participate" sense of the word) but simply cannot because it would presumably allow any number of criminals to escape its NIT tentacles in the future.
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