According to slides released by EFF, law enforcement agencies have been using Hemisphere, a secret phone records monitoring database, to build criminal cases against defendants and then cover it up by “fortuitously” happening across other evidence gained through legitimate channels. The 24-page slide deck describes the program, along with the elaborate techniques used to conceal the true source of evidence from judges, prosecutors and criminal defendants.
Funded by the Office of National Drug Control Policy (ONDCP), the Hemisphere program is powered by a massive phone metadata monitoring database with advanced pattern-recognition algorithms designed to track individual targets, including location. Features include:
No need for a warrant! Near realtime-access to phone records and metadata
Pattern recognition to identify individuals, even when they change phones
Location information for “tracking targets and placing them in certain areas at certain times.”
Sounds great, right? The only problem, which the presentation skillfuly dances around without explicitly acknowledging, is that it’s most likely illegal and unconstitutional. That’s why you “DO NOT mention Hemisphere in any official reports or court documents.” Instead, you use Hemisphere to gather the evidence you need, and then, by sheer luck, get the documents you need through official channels, or pull the right car over at the right place and right time. This is an evidence-laundering technique known as parallel construction, or as the Hemisphere presentation puts it, “Parallel Subpoenaing.” The presentation goes to great lengths to describe this, emphasizing how the program must remain secret.
Under the U.S. Constitution, criminal defendants are entitled to due process of law, which means both that evidence against them must be obtained through legitimate means, and that they must be given a chance to challenge it in court. The Hemisphere program flies in the face of both of these requirements. Obtaining evidence through warrantless mass surveillance clearly violates the Fourth Amendment. Parallel construction conceals the true origin of evidence (illegally obtained evidence), making it impossible for defendants to challenge the practices of law enforcement agents.
Under “Fruit of the poisonous tree” doctrine, if criminal evidence is gathered through illegal means, it’s inadmissible, and any further evidence obtained as a result of that evidence is also inadmissible. This is a legal precedent designed to prevent exactly what the government is doing with the Hemisphere program. On paper, our criminal justice system realizes that it’s better to let a few criminals walk free than allow the Constitutional rights of everyone to be systematically violated by shady law enforcement practices. Unfortunately, when evidence is concealed from the courts, it’s impossible for them to put a stop to this, and justice cannot be served.
what can we do to stop them?
Demand information on their use of Hemisphere via Freedom of Information Act. Since the DEA will not use records from Hemisphere as evidence in trial, they'd probably have a hard time withholding the records on the usual grounds that doing so would interfere in one or more criminal investigations (they totally don't use Hemisphere for evidence-gathering! It's just for fun! track use only.) Hmm, now I have something fun to work on this weekend.