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ACLU: Defendants not being told when evidence derived by wiretap

Federal criminal defendants are being denied their full right to confront the evidence against them, according to a lawsuit recently brought by the American Civil Liberties Union. This is because the U.S. Department of Justice doesn't notify defendants when evidence against them was obtained via secret wiretaps and other surveillance under the Foreign Intelligence Surveillance Act or the Wiretap Act.

The lawsuit follows a Freedom of Information Act request the ACLU filed in February, which sought records related to a Justice Department policy memo entitled "Determining Whether Evidence Is 'Derived From' Surveillance Under Title III or FISA." That memo supposedly outlines the DOJ's understanding of when it must notify defendants that information about them was obtained without a warrant.

According to the ACLU, Title III of the Wiretap Act and Section 7 of FISA authorize "hundreds of thousands of secret wiretaps and other searches" every year. Those searches supposedly target foreign surveillance subjects, but hundreds of millions of communications are collected annually through FISA alone.

A 2013 New York Times report found that the Justice Department had a specific policy of not notifying defendants when evidence presented in their cases was obtained via warrantless surveillance. In 2013, however, the agency changed that policy because the solicitor general at that time determined there was no legal justification for refusing such disclosures.

Since then, however, the department's policy has been shrouded in secrecy. Only 10 defendants have been notified of being surveillance subjects under FISA Section 702, the ACLU says. That tiny number gives them good cause to suspect the agency is not notifying people as required by law.

The records the ACLU is seeking must be made public so it can be determined "whether individuals have an opportunity to seek judicial review of this surveillance in the public courts," and whether Congress needs to strengthen the notification requirements or to rein in the secret surveillance itself.

If you have been accused of a federal crime, you have the right to fully understand and confront the evidence against you. If that evidence includes private emails, social media posts or other electronic information, it may not be clear to you how it came to be used as evidence in a criminal case. To get to the bottom of this, you need to seek assistance from an attorney who has experience in federal court.

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