The revelation that the National Security Agency is collecting the phone records of Verizon customers wholesale has been called an outrage and a violation of the U.S. Constitution. But for one Florida man accused of robbery, the government's data collection could provide a winning alibi.
Terrance Brown is one of five defendants currently on trial in federal court in Fort Lauderdale, Florida on charges of conspiring to rob a series of armored trucks. The prosecution is using the cell phone records of the accused to prove they were in the same vicinity when the robberies were planned and executed. The problem, however, is that by the time investigators came calling on Metro PCS--the service provider of two cell phones linked to Brown--the carrier had already purged its records for July 2010, when one of the attempted bank robberies took place.
Brown remains implicated, and believes the Metro PCS records will prove he wasn't in the vicinity of the robbery--and now his attorney, Marshall Dore Louis, is looking to the NSA for help. On Sunday, Brown's defense filed a motion arguing that the government probably does have Brown's records, but may not even know it.
The motion cited The Guardian report from June 5 revealing that the NSA was engaging in widespread data collection of millions of Verizon customers' phone records every day. Brown's defense alleges that because the NSA program probably includes all U.S. cell providers, and that the program could go as far back as 2006, it's likely the NSA has Brown's phone records somewhere.
Cell phone records are commonly used in criminal proceedings, as they can indicate where an individual (or at least his or her phone) was on any given day. In 2002, the Los Angeles Times reported that cell phone location data was becoming a regular piece of evidence in criminal trials. And this March, a Tampa Bay, Florida man was convicted of murder in part thanks to cell phone data showing he was in the vicinity of the crime, according to The Ledger. Location data was also used in April to convict a West Virginia man of murder, according to the Dothan Eagle.
But can a criminal defendant realistically expect to acquire data from one of the most secretive arms of the U.S. intelligence community? After all, even the U.S. Congress is hard-pressed to get answers from the government's top spooks. The answer is yes, says David Oscar Markus, a Miami-based criminal defense attorney who first wrote about the Brown case on his firm's blog. "The government should not be able to use secret surveillance as a sword to investigate, and as a shield to keep helpful information from the defense," Markus told TechHive. "What's good for the goose is good for the gander."
That sounds right from a common sense perspective, but when you get down to the technical legal requirements, can a criminal defendant compel the NSA to fork over its secretive data trove? "These sorts of motions are always an uphill battle," says Markus. "But the defendant has a great, creative lawyer and a scholarly judge, so I wouldn't count him out. The fact that it has gotten this far is a victory in itself."
The NSA's data collection is assumed to be widespread, so Brown's case raises the question of whether more criminal defendants will ask the NSA to fork over more phone data in the future. Markus, for one, doubts we'll see criminal defendants making these kinds of requests very often. "Most of the time it's easy enough to get phone records," Markus says. "In this case, it was a little tricky, necessitating the motion."
The prosecution in Brown's case was originally due to respond to the defense's request by Wednesday, June 12. The judge has since extended the deadline to allow the prosecution more time to formulate a response.