What is parallel construction?
In criminal cases, prosecutors share evidence with defense attorneys in a process called “discovery.” The defense may launch challenges against evidence that was gathered in contravention of Fourth Amendment protections. This evidence would be suppressed from the case under the “exclusionary rule.” This process is a fundamental safeguard key to any fair adversarial legal trial. Parallel construction is the process by which law enforcement skirts this safeguard.
Generally, a criminal investigation starts with a “lead,” or a piece of information or evidence that kicks off a case. Each subsequent piece of evidence found can be thought of as a chainlink of information. Parallel construction is the process of concealing a particular link in the chain. An intelligence or law enforcement agency does this because they do not want to disclose a surveillance method to the court or general public. Oftentimes, these surveillance methods are illegal. Therefore, by employing parallel construction, law enforcement officers can come to the same conclusion by working backwards from the original tip they received from an intelligence agency. The fabricated process of investigation would be admissible in court.
For example, a DEA agent may receive a tip from the NSA that a driver is carrying illicit substances in his vehicle. The NSA received this information through a constitutionally questionable electronic surveillance method, like DAS. To hide this fact, a DEA agent is instructed to engage in parallel construction. This may look like the agent stalking the driver until they commit a small traffic violation. Upon pulling the driver over, they initiate a search and find the drugs they already knew were there. However, in court, the NSA tip would not be revealed, thus making the case appear as if the officer stumbled upon the illegal substance in the process of routine traffic enforcement. The defendant would not be able to suppress this evidence gathered from illegal surveillance because they would never know about it.
Our forthcoming issue brief on parallel construction will dive much deeper into the topic.
How would the GSRA remedy parallel construction?
Representatives Zoe Lofgren (D-CA, 18th District), Warren Davidson (R-OH, 8th District) and Senators Ron Wyden (D-OR) and Mike Lee (R-UT), along with our privacy and civil liberties coalition of more than 30 groups, have proposed the Government Surveillance Reform Act of 2023. It renews Section 702 of FISA for four years, where it will be set to expire September 30, 2027. The GSRA is a comprehensive reform proposal that, most significantly, would codify a warrant requirement for U.S. person queries of data collected under Section 702 and Executive Order 12333. It also strengthens statutory limits placed on government surveillance under the Electronic Communications Privacy Act of 1986. Below is a section-by-section breakdown of each relevant section of the GSRA and how its provisions have the potential to stop parallel construction in future cases:
Section 101 of the GSRA prohibits warrantless queries of U.S. persons’ communication. It outlines the process necessary for obtaining a judicially approved criminal warrant or a Title I FISA order to obtain Section 702 data. It reads: “…no officer or employees of the United States may conduct a query of information acquired under this section in an effort to find communications or information the compelled production of which would require a probable cause warrant if sought for law enforcement purposes in the United States…” Section 302 effectively proposes the same restrictions but applied to surveillance conducted EO 12333.
Section 101 is the bedrock principle of the GSRA. By limiting U.S. person queries through stricter procedural requirements in line with the Fourth Amendment, there would be many less opportunities for intelligence or law enforcement agents to query Section 702 data, for example, to find leads or evidentiary trails they intend to hide later.
Section 202 amends FISA to include required disclosure of relevant information for those surveilled under Section 702. FISA applications to FISC must include all relevant information, including possibly exculpatory information or information that would raise doubts or call the accuracy of the case into question.
Cases of parallel construction are built on an asymmetry of information between intelligence or law enforcement officials and criminal defendants, whose cases are damaged by withheld information. Section 202 would eliminate the ability of officials to do this. In sum, officials can longer lie to judges, either outright or by omission.
Section 204 clarifies proper notice requirements for FISA derived information and evidence. Any information that would not have been found if not for electronic surveillance, a physical search, or other means of surveillance “regardless of any claim that the information or evidence is attenuated from the surveillance… or was subsequently reobtained through other means” must be disclosed with proper notice.
This provision explicitly deals with parallel construction without employing the term. It precludes law enforcement from building alternative evidentiary chains that would be legally admissible in a court of law without disclosing the original source of the evidence in their possession. It eliminates the process altogether.
Section 210 establishes grounds for a U.S. person to file a civil action in response to the “acquisition, copying, querying, retention, access, or use” of information acquired under FISA if the person has a reasonable basis to believe that their rights have been or will be violated. This provision would allow a person to receive damages in known instances of parallel construction, which would be easier to do given disclosure and notice requirements outlined in Section 202 and Section 204.
Even more impactful in Section 210 is a provision that abrogates the state secrets privilege. The state secrets privilege is a common law evidentiary privilege that allows the head of a relevant government agency to prevent the discovery of certain information if it would prove to be a “reasonable danger” to national security. The Classified Information Procedures Act (CIPA) is the statute that outlines how information is withheld from criminal defendants (it also applies to civil cases). The state secrets privilege is regularly abused by intelligence officials to hide key information necessary for defendants to mount a defense, especially when seeking to suppress evidence illegally obtained. The government evoked state secrets in Wikimedia v. NSA, wherein the constitutionality of the NSA’s Upstream surveillance program was challenged.
The GSRA is a once-in-a-generation opportunity for comprehensive surveillance reform. It is a strong policy solution to diminish opportunities for parallel construction.