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National Security

NACDL recognizes that under the banner of the “war on terrorism,” America’s fundamental constitutional protections have been under unprecedented attack.  Since the tragedy of 9/11, the government has engaged in unparalleled assaults on a range of constitutional rights, including the right to due process and the right to privacy. NACDL seeks to resist this trend on both on a systemic and case-by-case basis to expose and combat the ongoing incursions into our civil rights in the name of national security.


Watch NACDL’s Webinar “Unknown Unknowns: How to Expose the Government’s Evidence Laundering.” On May 23, 2018, NACDL held a free webinar about the practice of government evidence laundering, known as “parallel construction.” When the U.S. government launders the origin of evidence obtained in criminal cases, it is able to obscure secret surveillance technology or potentially unconstitutional investigative methods from the accused in criminal cases. The webinar featured Brian Pori, a federal public defender from New Mexico with extensive experience leading trainings on government evidence laundering, and Sarah St. Vincent, the author of Human Rights Watch’s comprehensive investigative report “Dark Side: Secret Origins of Evidence in US Criminal Cases.”

Watch the recording of the webinar here.

CBP updates directive on border searches of digital devices 

On January 4, 2018, Customs and Border Protection (CBP) released a new directive on the border searches of digital devices. The new directive makes significant changes to the practices that NACDL detailed last fall in “Protecting Your Digital Devices at the Border: A Criminal Defense Lawyer's Primer.” The directive includes specific procedures to protect attorney-client privilege and work product doctrine, as well as a dangerous new provision that asserts travels have an "obligation" to provide CBP with their device passwords. You can find the directive here. NACDL will shortly update the primer. In the meantime, you can learn more about the directive from Esha Bandari at the ACLU, the Deeplinks blog at the Electronic Frontier Foundation, and Edward Hasbrouck's two-part analysis of the password provision

Watch NACDL's webinar "Privileged Means Privileged: Keeping the Government Out of Your Digital Devices at the Border" 

U.S. Customs and Border Protection (CBP) searches the digital devices of people at border crossings and at ports of entry without a warrant and without suspicion. Criminal defense lawyers are uniquely exposed to abuse in this context, as their devices store privileged communications and work product. The National Association of Criminal Defense Lawyers (NACDL) recently released a primer on the border searches of electronic devices. Drawing from the primer, this webinar aims to empower members of the defense community to be proactive in protecting their sensitive documents and communications when re-entering the country. 

 Watch the recording of the webinar here. 

privileged means privileged

The webinar was presented by Esha Bhandari, a staff attorney with the ACLU Speech, Privacy, and Technology Project, where she focuses on litigation and advocacy relating to online speech, academic freedom, privacy rights, and the impact of big data. She is counsel for the plaintiffs in Alasaad v. Duke, a challenge to the government’s practice of conducting warrantless searches of electronic devices at the border. Esha was previously an Equal Justice Works Fellow with the ACLU Immigrants’ Rights Project, where she was involved in litigating cases concerning a right to counsel in immigration proceedings, detainer policies, and discriminatory state and local laws. She has also been a staff attorney at the Center for Reproductive Rights, where she worked on two trials challenging a Texas law limiting women’s access to reproductive health care. Esha is a graduate of McGill University, the Columbia University Graduate School of Journalism, and Columbia Law School, and served as a law clerk to the Hon. Amalya L. Kearse of the U.S. Court of Appeals for the Second Circuit.

Protecting Your Digital Devices at the Border: A Criminal Defense Lawyer’s Primer

Courts have long made it clear that agents can search the bags of people entering the country. For the past decade or so, U.S. Customs and Border Protection (CBP) has applied that logic to digital devices. NACDL members are uniquely exposed to abuse in this context: digital devices store materials and information subject to the attorney-client privilege and attorney work-product doctrine, as well as information on overseas clients and witnesses, and other extremely sensitive materials that could be covered by Rule 1.6 of the Model Rules of Professional Responsibility.

 NACDL recently released a primer will educate attorneys about the implications of CBP's claimed powers and offer strategies that will help them comply with their ethical obligations and responsibilities to their clients when entering the U.S. Along with the primer, NACDL compiled a resource of district court cases that deal with the border search exception and digital devices, with special attention paid to the influence of Riley v. CaliforniaRead "Protecting Your Digital Devices at the Border: A Criminal Defense Lawyer’s Primer" here and find the companion case list here. 

On January 4, 2018, U.S. Customs and Border Protection issued a new directive on border searches of electronic devices. You can find it here. Please stay tuned for an updated version of our primer.  

 Section 702

The Open Technology Institute published an excellent visualization of all recorded compliance violations of Section 702 of the Foreign Intelligence Surveillance Act. View "A History of FISA Section 702 Compliance Violations" at the New America website here. NACDL recently signed a letter in opposition to the first version of the USA Liberty Act, a House Section 702 reform bill that fails to strengthen the warrant requirement for searching databases containing Section 702 content. The USA Liberty Act also increases sentences for knowingly removing classified documents and creates a new crime of negligently removing such documents. Use NACDL's tool to contact your Representative today to urge them to strengthen the USA Liberty Act or let Section 702 sunset! 

NACDL has published a guide on challenging evidence seized by government-installed computer malware, authored by the American Civil Liberties Union with input from NACDL and the Electronic Frontier Foundation. The guide, “Challenging Government Hacking in Criminal Cases,” examined recent court decisions on the government’s use of malware in the context of Fourth Amendment protections from unreasonable searches. NACDL hosted a webinar on the guide featuring the expertise of Colin Fieman, an Assistant Federal Public Defender and lead counsel in the first “Operation Pacifier” cases, and Paul Ohm, a law professor and specialist in information privacy, computer crime law, intellectual property, and criminal procedure. 

     Government hacking webinar 
Watch our new webinar "Defending Government Hacking Cases" here. 
Read the guide “Challenging Government Hacking in Criminal Cases" here. 

Surveillance Self Defense - A Series of NACDL Primers

The Fourth Amendment is being redefined in the digital age. Surveillance programs and technologies that were ostensibly created and implemented to combat terrorism are being used in every aspect of the criminal justice system. NACDL is producing a series of primers to introduce different surveillance programs and techniques to defense lawyers and provide strategies and resources to combat them in cases. This is an ongoing project and will be updated periodically.

News Of Interest

"N.S.A. Contractor Who Hoarded Secrets at Home Is Sentenced to Nine Years in Prison," by Scott Shane, New York Times, July 19, 2019.

" Judge Urged to Block Warrantless Tech Searches at Border," by Zack Huffman, Courthouse News Service, July 18, 2019.

"Expansion of Secrecy Law for Intelligence Operatives Alarms Free Press Advocates," by Charlie Savage, New York Times, July 10, 2019.

"Border officials not told of massive surveillance breach until three weeks after subcontractor was first alerted," by Drew Harwell, Washington Post, July 10, 2019.

"Mystery of NSA leak lingers as stolen document case winds up," by Tami Abdollah and Eric Tucker, Associated Press, July 6, 2019.

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