Our New Brief on Parallel Construction

In a recent House Judiciary Committee hearing, “Oversight of the Federal Bureau of Investigation,” Rep. Tom McClintock asked FBI Director Christopher Wray a simple question: “Can you describe the term parallel construction as it relates to evidence produced in FISA searches?” Wray avoided the question altogether:

“Parallel construction? I’m not sure I’ve used the term before…I’m just not sure about the use of the term.”

McClintock pried further and asked, “Has the FBI ever employed that particular tactic in prosecuting American citizens?” Wray lied in reply, saying, “Not to my knowledge.”

Our latest brief is dedicated to explaining what parallel construction is and the harm it poses to our Fourth Amendment liberties.

Parallel construction, also referred to as “alternative construction,” occurs when law enforcement officials use an illegal method or technology, which they intend to hide, to search for criminal activity. They cover their tracks by later using a legal way to access the same or similar evidence. The act of concealing illegal surveillance methods by instead using subsequent legally acquired evidence to launch an investigation is called parallel construction or “evidence laundering” because, like money laundering, it involves converting illegal evidence into legal evidence.

Intelligence and law enforcement officials employ parallel construction to shield the surveillance programs they abuse from judicial or public scrutiny. These programs include Executive Order 12333, FISA Section 702, and Data Analytical Services.

Parallel construction is a relatively new revelation about the abuses of the surveillance state. Restore The Fourth’s issue brief on the topic comes at a crucial time, when FISA Section 702 renewal hangs in the balance between reform and reauthorization prior to its expiration in April 2024.

Our issue brief is the first to analyze current federal policy proposals as they relate to parallel construction. We provide a comprehensive analysis of both the Government Surveillance Reform Act (GSRA) and the Protect Liberty and End Warrantless Surveillance Act (PLEWSA), both of which contain provisions aimed at stopping parallel construction.

Our issue brief also provides a Fourth Amendment based legal analysis of parallel construction. We draw on current legal scholarship and case law to build an concise and legible argument for why parallel construction is corrosive to our civil liberties. We hope our brief illuminates the deepest abuses of the surveillance state, and galvanizes our activists across the country to take action.

You can read our parallel construction issue in full here.