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7-2014

Digital Innocence
Joshua A.T. Fairfield
Washington & Lee University School of Law, [email protected]

Erik Luna
Washington and Lee University School of Law, [email protected]

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Recommended Citation
Joshua A.T. Fairfield and Erik Luna, Digital Innocence, 99 Cornell L. Rev. 981 (2014).

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DIGITAL INNOCENCE

Joshua A.T. Fairfield† & Erik Luna††

Recent revelations have shown that almost all online activity and in-
creasing amounts of offline activity are tracked using Big Data and data
mining technologies. The ensuing debate has largely failed to consider an
important consequence of mass surveillance: the obligation to provide access
to information that might exonerate a criminal defendant. Although infor-
mation technology can establish innocence—an ability that will only im-
prove with technological advance—the fruits of mass surveillance have been
used almost exclusively to convict. To address the imbalance and inform
public dialogue, this Article develops the concept of “digital innocence” as a
means of leveraging the tools of Big Data, data mining, ubiquitous con-
sumer tracking, and digital forensics to prevent wrongful convictions and to
provide hard proof of actual innocence for those already convicted.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 982 R
I. THE CONCEPT OF DIGITAL INNOCENCE . . . . . . . . . . . . . . . . . . . 987 R
II. THE TECHNOLOGY OF DIGITAL SURVEILLANCE . . . . . . . . . . . . . 995 R
A. Growth of Databases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 996 R
B. Increase in Types of Information . . . . . . . . . . . . . . . . . . . 1001 R
C. Aggregation and Cross-Referencing of Databases . . . . 1005 R
III. THE LAW OF DIGITAL SURVEILLANCE . . . . . . . . . . . . . . . . . . . . . 1007 R
A. Surveillance and the Fourth Amendment . . . . . . . . . . . 1007 R
B. Surveillance and FISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011 R
C. Mass Surveillance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019 R
IV. DEFENSE RIGHTS AND POTENTIAL BARRIERS . . . . . . . . . . . . . . . 1024 R
A. Government Surveillance and Defense Rights . . . . . . . 1025 R
B. Barriers to Digital Innocence . . . . . . . . . . . . . . . . . . . . . . . 1032 R
1. State Secrets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032 R
2. Agency Alignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038 R
V. ESTABLISHING DIGITAL INNOCENCE . . . . . . . . . . . . . . . . . . . . . . . 1043 R
A. Access to Information at Trial . . . . . . . . . . . . . . . . . . . . . . 1044 R
1. CIPA and CIPA-like Processes. . . . . . . . . . . . . . . . . . . . . . 1045 R
2. Obtaining Information from Private Third Parties . . . 1054 R
3. Obtaining Information from the United States as a
Third Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1065 R
B. Post-Conviction Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1070 R

† Professor of Law, Washington and Lee University School of Law.

†† Sydney and Frances Lewis Professor of Law, Washington and Lee University School
of Law.

981
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1. Habeas and AEDPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1071 R

2. Actual Innocence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1074 R
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1076 R

INTRODUCTION

The recent National Security Agency (NSA) data scandal has re-
vealed what technologists have long suspected: every aspect of online
life is tracked and recorded. The NSA maintains programs that cover
“nearly everything a typical user does on the internet”1 and collect
“pretty much everything it can”2—e-mail and text messages, voice and
video chats, photos and videos, file transfers, social networking infor-
mation, Internet browsing histories and searches, and so on—render-
ing all of this data searchable by the government.3 Pursuant to secret
court orders, Americans’ telephone and Internet metadata records
are being proactively recorded, stored, parsed, and searched.4 From
the massive datasets derived from this data, it is possible to determine
whom people talk to, where they are, what they are interested in, and
even to predict what they might do next.5 Outside of the NSA con-
text, government monitoring has expanded through the use of
third-party data and by the creation of state-run databases. Digital sur-
veillance is increasing offline as well. For example, some police cars

1 Glenn Greenwald, XKeyscore: NSA Tool Collects “Nearly Everything a User Does on the
Internet,” THE GUARDIAN (July 31, 2013, 8:56 AM), http://www.theguardian.com/world/
2013/jul/31/nsa-top-secret-program-online-data (quoting NSA materials on XKeyscore
program) (internal quotation marks omitted).
2 James Ball, NSA Collects Millions of Text Messages Daily in “Untargeted” Global Sweep,
THE GUARDIAN (Jan. 16, 2014, 1:55 PM), http://www.theguardian.com/world/2014/jan/
16/nsa-collects-millions-text-messages-daily-untargeted-global-sweep (quoting document
on NSA’s Dishfire program) (internal quotation marks omitted).
3 See, e.g., id.; Greenwald, supra note 1; James Glanz, Jeff Larson & Andrew W. R
Lehren, Spy Agencies Tap Data Streaming from Phone App, N.Y. TIMES, Jan. 28, 2014, at A1;
Barton Gellman & Ashkan Soltani, NSA Collects Millions of E-mail Address Books Globally,
WASH. POST, Oct. 15, 2013, at A1; Glenn Greenwald & Ewen MacAskill, Revealed: How US
Secretly Collects Private Data from AOL, Apple, Facebook, Google, Microsoft, Paltalk, Skype, Yahoo
and Youtube, THE GUARDIAN, June 7, 2013, at A1.
4 See Barton Gellman, The Architecture: Four-Pronged U.S. Approach Relies Heavily on Data
Behind Internet, Phone Communications, WASH. POST, June 16, 2013, at A1 (Internet and te-
lephony metadata); James Ball, Verizon Court Order: Telephone Call Metadata and What It Can
Show, THE GUARDIAN (June 6, 2013, 10:12 PM), http://www.theguardian.com/world/
2013/jun/06/phone-call-metadata-information-authorities (telephony metadata).
“Metadata” can be defined as data about data. In the context of electronic communica-
tions, metadata is information about a communication—the addresses and identities of an
e-mail sender and recipient, for instance, and the time, duration, and relevant numbers of
a phone call—but it does not include the communication itself.
5 See Barton Gellman & Ashkan Soltani, NSA Maps Targets by Their Phones, WASH.
POST, Dec. 5, 2013, at A1; James Risen & Laura Poitras, N.S.A. Examines Social Networks of
U.S. Citizens, N.Y. TIMES, Sept. 29, 2013, at A1.
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now use license plate readers to create a database of driver locations.6

New overhead camera technology permits tracking of the location
and activities of everyone in an entire city for hours.7 In the Boston
bombing investigation, street cameras, cellphone recordings, and
even a municipal facial recognition system were employed in pursuit
of the culprits.8
Largely due to the disclosures of Edward Snowden, the nation is
now engaged in a wide-ranging discussion about the balance between
national security and individual privacy. The responses include major
reports,9 several legal challenges,10 numerous congressional hear-
ings,11 and a high-profile presidential address.12 These contributions
often point in different directions, sparking objections and further
controversies.13 There is disagreement not only about what should be
done but also as to the factual predicates for decision making, includ-
ing whether the NSA’s programs have prevented acts of terrorism.14

6 See You Are Being Tracked: How License Plate Readers Are Being Used to Record Americans’
Movements, AM. C.L. UNION, https://www.aclu.org/alpr (last visited Aug. 23, 2013).
7 See Craig Timberg, High Above, an All-Seeing Eye Watches for Crime, WASH. POST, Feb.
6, 2014, at A1.
8 See Mariel Myers, Boston Bombings: How Facial Recognition Can Cut Investigation Time to
Seconds, CNET (Apr. 18, 2013, 5:56 PM), http://www.cnet.com/news/boston-bombings-
how-facial-recognition-can-cut-investigation-time-to-seconds/.
9 See PRIVACY & CIVIL LIBERTIES OVERSIGHT BD., REPORT ON THE TELEPHONE RECORDS
PROGRAM CONDUCTED UNDER SECTION 215 OF THE USA PATRIOT ACT AND ON THE OPERA-
TIONS OF THE FOREIGN INTELLIGENCE SURVEILLANCE COURT (2014); PRESIDENT’S REVIEW GRP.
ON INTELLIGENCE & COMMC’NS TECHS., LIBERTY AND SECURITY IN A CHANGING WORLD (2013)
[hereinafter PRG REPORT].
10 See Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013); ACLU v. Clapper, No. 13
Civ. 3994 (WHP), 2013 WL 6819708 (S.D.N.Y. Dec. 27, 2013).
11 See, e.g., Examining Recommendations to Reform FISA Authorities: Hearing Before the H.
Comm. on the Judiciary, 113th Cong. (2014); Strengthening Privacy Rights and National Security:
Oversight of FISA Surveillance Programs: Hearing Before the S. Comm. on the Judiciary, 113th
Cong. (2013).
12 See Barack Obama, U.S. President, Remarks by the President on Review of Signals
Intelligence, Address at the Department of Justice (Jan. 17, 2014), available at http://www.
whitehouse.gov/the-press-office/2014/01/17/remarks-president-review-signals-intelli
gence; see also Presidential Policy Directive 28: Signals Intelligence Activities, The White
House (Jan. 17, 2014), available at http://www.whitehouse.gov/sites/default/files/docs/
2014sigint_mem_ppd_rel.pdf (directive accompanying President Obama’s remarks).
13 Compare PRG REPORT, supra note 9, at 24–27, 36, 86–94, 200–08 (proposing various R
changes to the Foreign Intelligence Surveillance Court (FISC)), with Letter from John D.
Bates, Dir. of the Admin. Office of the U.S. Courts, to Dianne Feinstein, Chairman of the
Senate Select Comm. on Intelligence (Jan. 13, 2014), available at http://www.feinstein.
senate.gov/public/index.cfm/files/serve/?File_id=3bcc8fbc-d13c-4f95-8aa9-09887d6e90ed
(criticizing proposals).
14 Compare Klayman, 957 F. Supp. 2d at 40–41 (noting the “utter lack of evidence that
a terrorist attack has ever been prevented because searching the NSA database was faster
than other investigative tactics”), PETER BERGEN ET AL., NEW AM. FOUND., DO NSA’S BULK
SURVEILLANCE PROGRAMS STOP TERRORISTS? 1–3 (2014) (rejecting government claims that
mass surveillance has kept the United States safe from terrorism), and PRG REPORT, supra
note 9, at 104 (“[T]he information contributed to terrorist investigations by the use of R
section 215 telephony meta-data was not essential to preventing attacks and could readily
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984 CORNELL LAW REVIEW [Vol. 99:981

What is largely missing from the debate, however, is any discussion of

the consequences of mass surveillance for the rights of those accused
and convicted of crime.
In trying to bolster the argument for one controversial surveil-
lance statute, a federal lawmaker cited a series of criminal cases as
proof that the law was effective at thwarting terrorism.15 As it turns
out, the defendants in those cases had not been notified that the
NSA’s programs provided information in the underlying criminal in-
vestigations.16 Later revelations showed that the government has been
engaged in a long-term ruse in which law enforcement covers up the
source of information provided by the intelligence community.17 This
strikes at the heart of the American criminal justice system and likely
violates a number of constitutional provisions. But these practices
also demonstrate a gross hypocrisy: the government is using digital
surveillance to build its case for conviction while refusing to disclose
that fact to the defendant, let alone providing him the content of the
surveillance and access to the relevant databases. This is not just a
matter of procedural fairness, however. The government’s high-tech
tools of incrimination—the use of “Big Data,”18 data mining, ubiqui-
tous consumer tracking, and digital forensics—can also provide hard
proof of actual innocence for the wrongfully accused or convicted.
Consider the Occupy Wall Street protests, lauded by some for
raising political awareness and doubts,19 chided by others as the law-

have been obtained in a timely manner using conventional [methods].”), with Clapper,
2013 WL 6819708, at *25–26 (citing government’s purported successes and stating that
“[t]he effectiveness of bulk telephony metadata collection cannot be seriously disputed”),
Michael Morell, Correcting the Record on the NSA Review, WASH. POST, Dec. 29, 2013, at A17
(former CIA Acting Director arguing that bulk surveillance “would likely have prevented
9/11” and “has the potential to prevent the next 9/11”), and Benjamin Wittes, A Critique of
the New America Foundation’s Recent NSA Report, LAWFARE (Jan. 23, 2014, 10:47 AM),
http://www.lawfareblog.com/2014/01/a-critique-of-the-new-america-foundations-recent-
nsa-report/ (criticizing report by BERGEN ET AL., supra).
15 158 CONG. REC. S8384 (daily ed. Dec. 27, 2012) (statement of Sen. Diane Fein-
stein); see also Ellen Nakashima, NSA Surveillance Questioned in Plot Case, WASH. POST, June
22, 2013, at A2 (quoting and discussing Sen. Diane Feinstein’s comments concerning
reauthorization of 50 U.S.C. § 1881a); infra notes 270–82 and accompanying text (discuss- R
ing 50 U.S.C. § 1881a).
16 See infra notes 290–91 and accompanying text. R
17 See infra notes 387–89 and accompanying text. R
18 See, e.g., JAMES MANYIKA ET AL., MCKINSEY GLOBAL INST., BIG DATA: THE NEXT FRON-
TIER FOR INNOVATION, COMPETITION, AND PRODUCTIVITY 1 (2011) (“‘Big Data’ refers to
datasets whose size is beyond the ability of typical database software tools to capture, store,
manage, and analyze. This . . . incorporates a moving definition of how big a dataset needs
to be in order to be considered big data . . . . [A]s technology advances over time, the size
of datasets that qualify as big data will also increase.”).
19 See, e.g., Rose Aguilar, Occupy Has Raised Class Consciousness: Now What?, TRUTHOUT
(Feb. 13, 2012), http://truth-out.org/news/item/6628-occupy-has-raised-class-conscious
ness-now-what (stating that the Occupy movement has “raised awareness about the widen-
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lessness of neo-ne’er-do-wells.20 In the ensuing arrests of protesters in

New York City and elsewhere, the account of events by law enforce-
ment differed markedly from those of the protesters.21 But some de-
fendants had digital proof of their innocence.22 Witnesses had
recorded the protests, often on cellphone cameras, creating footage
that might absolve or condemn in the eyes of the law.23 When the
recordings were made available through defense requests, most of the
footage proved useless for those arrested. Yet a few recordings dis-
played the relevant events exactly as they occurred and, most impor-
tantly, offered proof of protestor innocence.24 Inadvertently, Occupy
Wall Street showcased the role of technology in preventing wrongful
convictions.25 Social network tools, mobile computing, and consumer
recording offer the prospect of findable exculpatory evidence for
those facing criminal trial and punishment.
Such stories are not part of the dueling narratives in America’s
current debate over pervasive government surveillance, which, de-
pending on one’s perspective, either leads to a dystopian panoptic
society or prevents another 9/11. The choice is pitched as whether
the information should be gathered, and, if so, when, where, and how
much. A different question needs to be asked: Who will have access to
the data? For the most part today, only the government and corpo-
rate entities gather and tap the stores of information about the popu-
lace. This creates a dangerous imbalance where only the most
powerful public and private actors may draw upon data about the gen-
eral population. Some experts have argued for the tables to be turned
by increasing the capacity of individuals to find out information about

ing wealth gap, inequality, rising student debt, criminal activity on Wall Street, poverty and
home foreclosures”).
20 See, e.g., Kate Zernike, Wall St. Protest Isn’t Like Ours, Tea Party Says, N.Y. TIMES, Oct.
22, 2011, at A1 (discussing portrayal of Occupy protesters as, among other things, “messy,
indolent, drug-addled,” “unemployed, uneducated, and uninformed”).
21 See Nick Pinto, Jury Finds Occupy Wall Street Protester Innocent After Video Contradicts
Police Testimony, VILLAGE VOICE (Mar. 1, 2013, 2:53 AM), http://blogs.villagevoice.com/
runninscared/2013/03/jury_finds_occu.php (noting discrepancies between law enforce-
ment officials’ account of an arrest and video evidence).
22 Id.
23 Id.
24 See id. (discussing how video evidence undercut police testimony and resulted in a
not guilty verdict for protester); see also Nick Pinto, In the First Occupy Wall Street Trial, Acquit-
tal, VILLAGE VOICE (Mar. 16, 2012, 9:29 AM), http://blogs.villagevoice.com/runninscared/
2012/05/in_the_first_oc.php [hereinafter Occupy Trial ] (discussing another case in which
photographic evidence contradicted police testimony).
25 See Radley Balko, Tech-Savvy Occupy Protesters Use Cellphone Video, Social Networking to
Publicize Police Abuse, HUFFINGTON POST (Oct. 29, 2011, 1:26 PM), http://www.huffing
tonpost.com/2011/10/29/occupy-protesters-armed-with-technology_n_1063706.html (“In
both [civil and] criminal proceedings . . . it’s likely that any significant protest will have
independent video . . . to ferret out what actually happened.”).
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986 CORNELL LAW REVIEW [Vol. 99:981

their surveillance.26 If the powerful are going to spy on us and collect

data about our lives, shouldn’t we know what information is being
gathered and have access to the resulting databases?
This argument takes on a constitutional dimension when the in-
formation is wielded by law enforcement to accuse, convict, and pun-
ish. Modern surveillance technology can provide both inculpating
and exculpating evidence. Electronic eavesdropping can catch the
guilty red-handed, but it can also provide alibis for the wrongfully ac-
cused and convicted. With citizens’ lives increasingly logged and
tracked, online and off, the chance of finding evidence tending to
prove innocence only increases. The breadth and depth of corporate
and government surveillance seem to guarantee the existence of ex-
onerating evidence, stored somewhere, proving the innocence of sus-
pects and defendants. Assuming computer engineers can refine the
tools necessary to find it, proof of innocence will be uncovered in
some yet-to-be-determined number of cases. This Article calls for the
development of a new concept—digital innocence—seeking to leverage
the tools and content of Big Data to prevent wrongful convictions and
provide hard proof of actual innocence for those already convicted.
To be clear, the following is not an apologia for data gathering in
service of national security or commercial interests. State and corpo-
rate invasions of individual privacy have clear and much-discussed
costs for society.27 And needless to say, the government’s unprece-
dented level of secret, suspicionless monitoring of personal communi-
cation raises myriad legal, political, and philosophical issues. We
think the practice is anathema to a liberal, open democracy and in-
consistent with the framework and rights protections of the U.S. Con-
stitution. The present argument is different, however, serving not as a
paean to surveillance but as a kind of warning. If the government
gathers information about its citizens, it cannot use that data solely to
accuse and convict—or worse yet, hide the information or obfuscate
its source—leaving the individual with no defense. Consistent with
well-established rights of evidentiary access, the information must be
made available to defendants to protect against wrongful convictions
and to exonerate those who have already been convicted.
Indeed, far from supporting mass surveillance, the concept of
digital innocence complicates government efforts to use surveillance
data only to investigate and prosecute. The President’s Review Group

26 See, e.g., DAVID BRIN, THE TRANSPARENT SOCIETY 80–84 (1998) (discussing concept
of “reciprocal transparency”); Steve Mann et al., Sousveillance: Inventing and Using Wearable
Computing Devices for Data Collection in Surveillance Environments, 1 SURVEILLANCE & SOC’Y 331
(2003) (discussing concept of “sousveillance”).
27 See Ron Wyden et al., Op-Ed., End the N.S.A. Dragnet, Now, N.Y. TIMES, Nov. 26,
2013, at A25 (three U.S. Senators discussing danger of mass surveillance).
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on Intelligence and Communications Technology recommended that

government should base its surveillance decisions on “a careful analy-
sis of consequences, including both benefits and costs.”28 One impor-
tant consequence of government surveillance is the legal requirement
of reciprocal access to information, which carries a real cost for the
law enforcement and intelligence communities. There is also a conse-
quence and cost for commercial acquisition of people’s data: any com-
pany that collects such data must be prepared to provide information
that might help exonerate a criminal defendant.
This Article proceeds in five parts. Part I discusses the conceptual
gap in the legal academic literature regarding digital innocence, while
Part II provides an overview of the relevant technology. Part III then
discusses the legal foundation for government exploitation of Big
Data. Part IV considers defendants’ right to access and use this infor-
mation and the challenges they will face in trying to exercise this
right. Finally, Part V describes how defendants can establish digital
innocence, based on a measured analysis of case law and statutory
authority.

I
THE CONCEPT OF DIGITAL INNOCENCE

In 2005, San Francisco introduced cameras at hotspots through-

out the city as a way of bringing down the overall crime rate. But the
cameras were soon put to a different purpose. “[M]ore than just a
crime-fighting tool,” the cameras “have also become a tool exploited
by defense lawyers who often seek footage from the cameras to exon-
erate falsely accused clients.”29 In one case, a man was cleared of a
murder charge when footage showed him defending a disabled
woman.30 Public defenders are now trained to ask for the data, with a
third of all requests for footage coming from defense attorneys.31
A similar phenomenon is unfolding around law enforcement re-
cording, typically done by citizens filming police in action.32 Mobile
recording devices have become a check on abuse of power and, as was
the case for some Occupy Wall Street protestors, a means of proving

28 PRG REPORT, supra note 9, at 16, 50; see also id. at 42, 50–51, 257–58 (recom- R
mending cost-benefit analysis and risk-management approaches).
29 Joshua Sabatini, San Francisco’s Crime Cameras Zoom in on the Innocent, S.F. EXAMINER
(July 8, 2011), http://www.sfexaminer.com/sanfrancisco/san-franciscos-crime-cameras-
zoom-in-on-the-innocent/Content?oid=2177815.
30 See id.
31 See id.
32 See Balko, supra note 25. R
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988 CORNELL LAW REVIEW [Vol. 99:981

one’s innocence.33 Elsewhere, dashboard-mounted video cameras

have become indispensable for motorists who rely upon the captured
images as a means to protect themselves against erroneous or crooked
traffic enforcement.34 At times, however, the government’s own re-
cordings have helped free the innocent. In a recent case, a New
Jersey man charged with resisting arrest and assault was cleared after
the defense requested and received a police dash-cam video, which
both exonerated him and exposed wrongdoing by several officers.35
“If we hadn’t had the tapes in this case,” defense counsel said, “an
innocent man would be in jail today.”36
These examples are merely the faintest ripple of a coming tide of
digital evidence. An important report by the National Academy of
Sciences (NAS) described the development of “an emerging forensic
science discipline”:
The proliferation of computers and related devices over the past 30
years has led to significant changes in and the expansion of the
types of criminal activities that generate digital evidence. Initially,
computers were either the weapon or the object of the
crime. . . . As computers became more popular, they became stor-
age containers for evidence. . . . Finally, digital media have become
witnesses to daily activities. . . . As a result, almost every crime could
have digital evidence associated with it.37
Clearly, digital evidence can incriminate the guilty. But the NAS re-
port—which documented the possibilities and perils of other forensic
disciplines for the factually innocent38—failed to discuss the potential
of digital evidence to exonerate the wrongfully accused and convicted.
Part of the problem is that the concept of digital innocence is
under-theorized. We are aware of no academic article that discusses
the use of Big Data to prove innocence. This is a marked and startling
gap. The defense bar has begun to recognize that a client being on
camera, or being recorded, or being geolocated, can be a good

33 See Joshua Holland, How Video of Police Behaving Badly Made Occupy Wall Street a
Global Phenomenon, ALTERNET (Oct. 24, 2011), http://www.alternet.org/story/152856/
how_video_of_police_behaving_badly_made_occupy_wall_street_a_global_phenomenon.
34 See Tom Balmforth, Cops, Cars, and Videotape: Russians Embrace Dash-Cam Craze, RA-
DIO FREE EUR. (Nov. 24, 2012), http://www.rferl.org/content/dash-cams-russia-fighting-
corruption-and-scams-car-crashes/24780355.html (describing how dashboard-mounted
video cameras have become “an essential accoutrement for Russian motorists,” who “use
these dash cams as a tool to help fight their corner against Russia’s notoriously corrupt
traffic police”).
35 Sarah Wallace, Exclusive: Dashcam Video Clears NJ Man, WABC-TV (Feb. 21, 2014),
http://abclocal.go.com/wabc/story?section=news/investigators&id=9440401#.
36 Id. (quoting defense attorney Steven Brown).
37 NAT’L RESEARCH COUNCIL OF THE NAT’L ACADS., STRENGTHENING FORENSIC SCIENCE
IN THE UNITED STATES: A PATH FORWARD 179–80 (2009) [hereinafter NAS REPORT].
38 See id. at 4–5, 37, 42–48, 100.
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thing.39 The growth of data collection, connection, and parsing capa-

bilities could transform Big Data technologies into an important tool
for establishing innocence.
The extant relevant literatures fall into two rough categories.
The first is the discussion of privacy and the Fourth Amendment,
which to date has dominated the discussion of the intersection be-
tween surveillance technology and criminal defense. The idea of digi-
tal innocence has lagged behind for at least a couple of reasons.40
The scholarship has spoken consistently to the invasion of individual
rights and interests by Big Data data mining and mass-market con-
sumer surveillance, often focusing on proposals to restrict govern-
ment access to information as a means to protect privacy and
vindicate Fourth Amendment interests.41 The privacy conversation is
vitally important, all the more so in light of recent revelations about
massive government spying. But it has also created a blind spot of
sorts to the exonerating potential of digital information.42
This shortcoming in the literature is understandable. To broach
the topic of digital innocence in the age of Big Data, rights-minded
scholars would have to confront yet another temptation in a Faustian
bargain that already trades privacy and liberty for knowledge, conve-
nience, and security.43 Alternatively, scholars might have to assume
arguendo that mass surveillance will continue despite powerful objec-
tions. As seen in our introductory caveat, we are deeply troubled by
the massive and relentless tracking of people’s interactions, particu-
larly when done by the government. But we are also concerned that

39 See Bob Sullivan, Lawyers Eye NSA Data as Treasure Trove for Evidence in Murder, Divorce
Cases, NBC NEWS (June 20, 2013), http://www.nbcnews.com/technology/lawyers-eye-nsa-
data-treasure-trove-evidence-murder-divorce-cases-6C10398754?franchiseSlug=technolog.
40 See James S. Liebman et al., The Evidence of Things Not Seen: Non-Matches as Evidence of
Innocence, 98 IOWA L. REV. 577, 619–22 (2013) (noting that the civil liberties issues with
data mining have focused more on the use of such information to target specific
individuals).
41 For a strain of this conversation, see Orin S. Kerr, Congress, the Courts, and New
Technologies: A Response to Professor Solove, 74 FORDHAM L. REV. 779 (2005); Orin S. Kerr, The
Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102
MICH. L. REV. 801 (2004) [hereinafter Kerr, The Fourth Amendment]; Deirdre K. Mulligan,
Reasonable Expectations in Electronic Communications: A Critical Perspective on the Electronic Com-
munications Privacy Act, 72 GEO. WASH. L. REV. 1557 (2004); Daniel J. Solove, The Coexistence
of Privacy and Security: Fourth Amendment Codification and Professor Kerr’s Misguided Call for
Judicial Deference, 74 FORDHAM L. REV. 747 (2005). For an excellent, fairly recent summa-
tion of the debate and literature, see Joshua S. Levy, Towards a Brighter Fourth Amendment:
Privacy and Technological Change, 16 VA. J.L. & TECH. 502 (2011).
42 See, e.g., Marc J. Zwillinger & Christian S. Genetski, Criminal Discovery of Internet Com-
munications Under the Stored Communications Act: It’s Not a Level Playing Field, 97 J. CRIM. L. &
CRIMINOLOGY 569, 571–72 (2007).
43 Cf. Robert Weisberg, IVHS, Legal Privacy, and the Legacy of Dr. Faustus, 11 SANTA
CLARA COMPUTER & HIGH TECH. L.J. 75, 75–77 (1995) (discussing the Fourth Amendment
tradeoff—privacy rights balanced against security concerns—in the context of Intelligent
Vehicle Highway Systems).
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990 CORNELL LAW REVIEW [Vol. 99:981

the current debate has failed to take into consideration an important

cost of mass surveillance: the non-derogable obligation to provide ac-
cess to potentially exonerating information. By exploring the concept
of digital innocence, this Article seeks to make clear that government
and corporate entities will have to pay a price if they intend to (and
are allowed to) monitor the entirety of people’s lives.
The second scholarly category offers an analogous enterprise to
the one we have undertaken here: the literature on the DNA revolu-
tion in wrongful convictions.44 This scholarship is not concerned with
the concept we have described as digital innocence and only hints at
the possibility,45 but it still serves as a good example of how technolog-
ical advance can change the legal debate surrounding innocence, sug-
gesting how our concept might fit into the overall scheme of the law.
In fact, the path of DNA technology through legal institutions may
serve as a trail for digital innocence.46 Proof-of-innocence technolo-
gies exert a unique influence on the criminal justice system. Although
prosecutors do not always respond well to wrongful conviction
claims—especially those premised on human error, such as false con-
fessions and mistaken witness identifications—hard scientific proof of
innocence is more likely to move the government to drop charges or
acquiesce to the release of an inmate.47 The DNA technology litera-
ture therefore sets the stage for a discussion about the broader role of
technology in establishing innocence.
The literature also provides insights on the application and pace
of technological advance.48 Evidence in criminal cases changes with
technology,49 as developments help finger the guilty but also have the
power to exonerate the wrongfully accused or convicted. Typically,
however, new technology is first used to convict and only years later, if
ever, used to acquit.50 Moreover, lags in the exoneration of defend-

44 For prominent works in this area, see BRANDON L. GARRETT, CONVICTING THE INNO-
CENT: WHERE CRIMINAL PROSECUTIONS GO WRONG (2011); BARRY SCHECK ET AL., ACTUAL
INNOCENCE: FIVE DAYS TO EXECUTION AND OTHER DISPATCHES FROM THE WRONGLY CON-
VICTED (2000); Samuel R. Gross et al., Exonerations in the United States: 1989 Through 2003, 95
J. CRIM. L. & CRIMINOLOGY 523 (2005); Richard A. Leo & Jon B. Gould, Studying Wrongful
Convictions: Learning from Social Science, 7 OHIO ST. J. CRIM. L. 7 (2009).
45 Cf. Julie A. Singer et al., The Impact of DNA and Other Technology on the Criminal Justice
System: Improvements and Complications, 17 ALB. L.J. SCI. & TECH. 87, 118–20 (2007) (consid-
ering the idea that non–DNA technology might provide strong evidence of innocence).
46 See Jules Epstein, “Genetic Surveillance”—the Bogeyman Response to Familial DNA Investi-
gations, 2009 U. ILL. J.L. TECH. & POL’Y 141, 141–42 (2009).
47 See, e.g., Jeffrey Rosen, Wrongly Accused, N.Y. TIMES, Sept. 16, 2007, § 7, at 6.
48 See, e.g., Robert P. Mosteller, Evidence History, the New Trace Evidence, and Rumblings
in the Future of Proof, 3 OHIO ST. J. CRIM. L. 523, 535–36 (2006).
49 See, e.g., Emily Green, Forensic Advances Raise New Questions About Old Convictions,
NAT’L PUB. RADIO (Mar. 20, 2013, 12:44 PM), http://www.npr.org/2013/03/20/1748422
56/forensic-advances-raise-new-questions-about-old-convictions.
50 Id.
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ants are often characterized by issues of storage, followed by improve-

ments in the testing technology.51 Along these lines, DNA analysis
initially was the province of prosecutors but over time became essen-
tial to claims of actual innocence.52 If a wrongfully convicted defen-
dant was lucky, biological evidence of the real perpetrator was
properly stored, sometimes for years, until the capacity and technol-
ogy were developed to test the evidence.53
As suggested by the language quoted from the NAS report, data
science and Big Data technologies have been overwhelmingly used to
convict.54 Prosecutors often gather cookie data,55 search terms,56
web-surfing history,57 and cell-site location information as part of their
case against the accused.58 But in the future, this data need not ac-
crue exclusively to the benefit of prosecutors.59 As search algorithms
get better and private citizens obtain access to data-mining tools and
technologies, defense counsel might have a significantly greater ability
to prove actual innocence by finding some specific video from a local
camera, for instance, or by cross-referencing geolocation information
from a cellphone, thereby showing that the defendant was not at a
given place at a given time.60 The question is whether the massive
amounts of data gathered about every American citizen will result in a
similar or even greater potential to exonerate the innocent.
We predict it will. Commercial61 and government actors gather
enormous amounts of data about every element of people’s daily
lives.62 An individual’s real-world location is shown by his cellphone
geolocation information.63 Each person’s text messages and e-mails

51 See, e.g., Kevin Johnson, Storage of DNA Evidence Key to Exonerations, USA TODAY (Mar.
28, 2011), http://usatoday30.usatoday.com/news/nation/2011-03-28-crimelab28_ST_N.
htm.
52 See Randy James, A Brief History of DNA Testing, TIME (June 19, 2009), http://con
tent.time.com/time/nation/article/0,8599,1905706,00.html.
53 See id.
54 See Damiano Beltrami, I’m Innocent. Just Check My Status on Facebook., N.Y. TIMES,
Nov. 12, 2009, at A27.
55 See Zwillinger & Genetski, supra note 42, at 571 & n.7. R
56 See, e.g., Kerr, The Fourth Amendment, supra note 41, at 829 & nn.161–62; Joseph R
Goldstein & Marc Lacy, Man Charged in Tucson Shootings Had Researched Assassins, Official
Says, N.Y. TIMES, Jan. 27, 2011, at A16.
57 See, e.g., Goldstein & Lacy, supra note 56; see also Beltrami, supra note 54. R
58 See Mark Hansen, Prosecutors’ Use of Mobile Phone Tracking to Spot a Defendant Is “Junk
Science,” Critics Say, A.B.A. J., June 2013, at 15.
59 See Sabatini, supra note 29. R
60 See id.
61 See Ashlee Vance, Facebook’s Is Bigger Than Yours, BUS. WK. (Aug. 23, 2012), http://
www.businessweek.com/articles/2012-08-23/facebooks-is-bigger-than-yours.
62 See Glenn Greenwald, US Orders Phone Firm to Hand Over Data on Millions of Calls,
THE GUARDIAN, June 6, 2013, at A1.
63 See Mathew J. Schwartz, 7 Facts About Geolocation Privacy, INFO. WK. (Aug. 20, 2012,
12:13 PM), http://www.informationweek.com/security/risk-management/7-facts-about-ge
olocation-privacy/d/d-id/1105877?.
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992 CORNELL LAW REVIEW [Vol. 99:981

are stored, parsed, and keyword-searched, with his buying habits, on-
line and offline, systematically incorporated into comprehensive
databases.64 People are also subject to increasing amounts of public
surveillance.65 Cameras on street corners, cameras on ATMs, cameras
from shop windows, and cameras carried by citizens provide a wealth
of photographic and audio evidence that might bear on a criminal
case.66 Most importantly, all of this information is being stored,67
awaiting more useful access to the data.68
Although the DNA technology literature is replete with discus-
sions of how innovation makes more accurate determinations possi-
ble,69 the advances took time and generated multiple interpretations.
New technology almost always contains the seeds of disparate mean-
ings, as proposed advances vie with traditional methodologies for
pride of place in trials and post-conviction proceedings.70 This under-
scores the importance of discovery and access to databases so that the
technology can be evaluated.71 Government databases are often
either secret or closed,72 despite the fact that the contents and algo-
rithms of these databases can be critical to criminal defense efforts.
The ongoing NSA scandal is scandalous not only because of the infor-
mation being gathered but also because of government efforts to con-
ceal the source of information used by law enforcement.73 As will be
discussed below, if databases are used for criminal investigations and
prosecutions, then defendants must be given access to them.74 In this
sense, the DNA technology literature points toward, but does not re-
solve, an issue that will be crucial for those seeking to use information
technology to exonerate.
Certainly, the DNA revolution has placed a spotlight on the en-
tire criminal justice system. Generations of defense lawyers struggled
to free inmates who they believed to be innocent, but the available

64 See Jennifer Valentino-Devries & Jeremy Singer-Vine, They Know What You’re Shop-
ping For, WALL ST. J., Dec. 8, 2012, at C1.
65 See Keith Proctor, The Great Surveillance Boom, FORTUNE (Apr. 26, 2013, 4:56 PM),
http://management.fortune.cnn.com/2013/04/26/video-surveillance-boston-bombings/.
66 See id.
67 See Andy Greenberg, NSA’s New Data Center and Supercomputer Aim to Crack World’s
Strongest Encryption, FORBES (Mar. 16, 2012, 4:23 PM), http://www.forbes.com/sites/
andygreenberg/2012/03/16/nsas-new-data-center-and-ultra-fast-supercomputer-aim-to-
crack-worlds-strongest-crypto/.
68 See Steve Lohr, Sizing Up Big Data, N.Y. TIMES, June 20, 2013, at F1.
69 See, e.g., Sarah M. Ruby, Checking the Math: Government Secrecy and DNA Databases, 6
I/S: J.L. & POL’Y FOR INFO. SOC’Y 257, 258–59 (2010).
70 See generally Note, Confronting the New Challenges of Scientific Evidence, 108 HARV. L.
REV. 1481, 1557–82 (1995) (describing “DNA Evidence and the Criminal Defense”).
71 See Ken Strutin, Databases, E-Discovery and Criminal Law, 15 RICH. J.L. & TECH. 6,
27–28 (2008).
72 See Ruby, supra note 69, at 263–64. R
73 See id. at 270.
74 See infra Part IV.A.
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means to upend convictions were limited to recantations by witnesses

and confessions by the actual perpetrators. Even in the rare cases
where such evidence surfaced, defense claims were often procedurally
barred.75
In what seems like a flash, DNA tests performed during the last dec-
ade of the [twentieth] century not only have freed sixty-four individ-
uals but have exposed a system of law that has been far too
complacent about its fairness and accuracy. . . .
Now the fabric of false guilt is laid bare, and the same vivid threads
bind . . . . Sometimes eyewitnesses make mistakes. Snitches tell lies.
Confessions are coerced or fabricated. Racism trumps the truth.
Lab tests are rigged. Defense lawyers sleep. Prosecutors lie.76
DNA-based exonerations have challenged long-held assumptions
about the trustworthiness of particular forms of evidence, while open-
ing the door to a reevaluation of the priorities of criminal justice by,
for instance, eroding support for the trend toward finality at all costs.
To date, however, DNA technology has freed only several hundred
innocent inmates.77 Their stories are invaluable and their releases are
historic, but DNA alone cannot realign the legal process to better
serve “‘the twofold aim [of criminal justice] . . . that guilt shall not
escape or innocence suffer.’”78 In all likelihood, the vast majority of
wrongful conviction cases will have no biological evidence subject to
legally dispositive DNA testing.79 One estimate places the wrongful
conviction rate in the United States at between 0.5% and 1%, which
would mean that 2000 to 4000 innocent defendants are imprisoned
each year.80
The single discipline of DNA technology cannot serve as the com-
prehensive source of information needed to meaningfully reduce the
incidence of wrongful convictions. The coming wave of Big Data in-
formation technologies has the potential to provide hard proof of ac-
tual innocence in many of the non-DNA cases. In fact, data-mining

75 See Karen Christian, Note, “And the DNA Shall Set You Free”: Issues Surrounding Post-
conviction DNA Evidence and the Pursuit of Innocence, 62 OHIO ST. L.J. 1195, 1209–10 (2001).
76 SCHECK ET AL., supra note 44, at xv. R
77 See, e.g., DNA Exonerations Nationwide, INNOCENCE PROJECT, http://www.innocence
project.org/Content/DNA_Exonerations_Nationwide.php (last visited Mar. 25, 2014)
(noting that there have been 314 post-conviction DNA exonerations in the United States).
78 United States v. Nixon, 418 U.S. 683, 709 (1974) (quoting Berger v. United States,
295 U.S. 78, 88 (1935)) (alteration in original).
79 See, e.g., NAS REPORT, supra note 37, at 41 (“DNA evidence comprises only about 10 R
percent of case work and is not always relevant to a particular case. Even if DNA evidence
is available, it will assist in solving a crime only if it supports an evidential hypothesis that
makes guilt or innocence more likely.” (citation omitted)).
80 See Marvin Zalman, Qualitatively Estimating the Incidence of Wrongful Convictions, 48
CRIM. L. BULL. 221, 230 (2012); see also D. Michael Risinger, Innocents Convicted: An Empiri-
cally Justified Factual Wrongful Conviction Rate, 97 J. CRIM. L. & CRIMINOLOGY 761, 785–88
(2007) (generalizing the factual error rate for capital rape-murders to other crimes).
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994 CORNELL LAW REVIEW [Vol. 99:981

technology could have an even greater backward-reaching impact on

the criminal justice system. Mindboggling amounts of data are being
gathered and stored, although defendants currently lack the capacity
to access the contents or to isolate factors that might demonstrate
their innocence.81 The discrepancy between the present collection of
large amounts of data, and the now budding industry of analyzing and
drawing connections from and between that data, means that there
are now people in prison who will be exonerated when the data-min-
ing tools become good enough to locate and aggregate proof of their
innocence.
The DNA revolution and concomitant actual innocence move-
ment provide glimpses of the future for digital innocence. Among
other things, dozens of innocence projects have opened around the
country; national conferences are held on wrongful conviction every
year; professional training on the sources and prevention of wrongful
convictions is widely available to defense attorneys and other criminal
justice actors; and every state has enacted post-conviction DNA testing
statutes often accompanied by provisions for the preservation of bio-
logical evidence. One could imagine similar efforts focused on Big
Data technologies, such as the creation of a “Digital Innocence
Project,” which could provide legal representation in cases of actual
innocence; curate online communities and develop open source re-
sources; educate defense lawyers, prosecutors, and judges; and posi-
tively shape the law by, for instance, seeking the expansion of
DNA-specific statutes to include evidence gleaned from data science.
What is needed now is more fundamental: an understanding of
Big Data and mass government surveillance, and an evaluation of the
legal consequences for the actually innocent. Before there were
DNA-based innocence projects and specialized statutory regimes,
forward-thinking advocates had to obtain a basic comprehension of
DNA technology and then deploy it within the then-existing legal
framework to exonerate the wrongfully convicted. To date, the litera-
ture hints that information technology could play a part in actual in-
nocence claims, but it does not address information technology
directly. Existing scholarship suggests that the focus of law can only
be turned toward exoneration if the wrongfully convicted can provide
hard scientific proof of innocence, but it does not focus on Big Data
techniques for doing so. Some commentators point toward a future
in which actual innocence embraces more than DNA technology, yet
no one has engaged information technology. The following seeks to
fill that gap.

81 See John Rhoton, Getting a Grip on Storage Growth, ZDNET (Apr. 29, 2013), http://
www.zdnet.com/getting-a-grip-on-storage-growth-7000014158/.
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II
THE TECHNOLOGY OF DIGITAL SURVEILLANCE

In early June 2013, the Guardian and the Washington Post broke
stories on broad data surveillance programs conducted by the FBI and
the NSA.82 The Guardian revealed that Verizon was the target of a
secret order requiring it to turn over all phone call records gathered
for a ninety-day period.83 Other sources verified that such orders
were routinely renewed in a process that had been ongoing for
years.84 The result of the order was public confirmation that the gov-
ernment was collecting all “telephony metadata”—transactional infor-
mation such as the originating and terminating telephone numbers
and the time and duration of a call—regardless of who made the call,
who received the call, or where the call was made or received.85 This
was the first evidence in the United States of total detail recording of
American citizens. The order was not backward looking, in that it did
not involve the production of records that already existed or were re-
lated to a specific case. Rather, the order required a telecommunica-
tions provider to turn over all future records that would be generated.
Because the records did not yet exist at the time of the order, there
could be no possible way in which the collection was constrained by
suspicion of wrongdoing.
The Washington Post exposé on the PRISM program followed,
describing how the NSA received access to social networking data.86 It
remains unclear whether this access was “streamlined”—that is, data
was made immediately available upon the NSA’s request in a dedi-
cated sandbox-server environment accessible by the government—or
“direct,” in the sense that the NSA had direct access to the Silicon
Valley companies’ own servers.87 Apple, Facebook, Google, and other
technology companies claimed in unison that the NSA was not permit-
ted direct access to their servers, but none addressed the question of

82 See Barton Gellman & Laura Poitras, U.S., British Intelligence Mining Data from Nine
U.S. Internet Companies in Broad Secret Program, WASH. POST, http://www.washingtonpost.
com/investigations/us-intelligence-mining-data-from-nine-us-internet-companies-in-broad-
secret-program/2013/06/06/3a0c0da8-cebf-11e2-8845-d970ccb04497_story.html (last up-
dated June 7, 2013, 10:51 AM); Greenwald, supra note 62. R
83 See Greenwald, supra note 62; infra notes 242–48, 261–68 and accompanying text R
(discussing section 215 of the Patriot Act, see infra note 230).
84 See, e.g., Kimberly Dozier & Stephen Braun, Secret Court Scolded NSA over Surveillance
in 2011, Declassified Documents Reveal, NBC NEWS (Aug. 22, 2013, 5:00 AM), http://www.
nbcnews.com/news/us-news/secret-court-scolded-nsa-over-surveillance-in-2011-declassi
fied-documents-reveal-v20131077.
85 See Greenwald, supra note 62. R
86 See Gellman & Poitras, supra note 82. R
87 Id.
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996 CORNELL LAW REVIEW [Vol. 99:981

streamlined access.88 This collective silence is telling since stream-

lined, indirect access may approach effective direct access. As dis-
cussed later, all of this is permitted by aggressive stances on statutory
and constitutional interpretation.89
In the end, it may not matter whether and how much Silicon Val-
ley companies have been complicit in mass surveillance. Not content
with front-door entry, the NSA has accessed Big Data firms’ unen-
crypted data through a backdoor tap on the fiber-optic cables between
server farms.90 Moreover, the NSA secretly cracked or circumvented
much of the world’s encryption technology, and it has embarked on a
program of coaxing Internet companies to hand over their master en-
cryption keys.91 This Part provides an overview of the technology that
allows mass surveillance to happen, while the next Part discusses the
ostensible legal grounds for the government to engage in dragnet dig-
ital surveillance. Again, our goal is not to justify the resulting accumu-
lation and examination of data but instead to provide the basis for
defense access and use of this information.

A. Growth of Databases
The most significant characteristic of databases relevant to digital
innocence is the rate of storage increase.92 Growth in storage capacity
means the data that might exonerate a defendant is stored but not
necessarily parsed.93 That data might reside in a telecommunication
provider’s cell-site location information, or in the photographs of a
user-generated content website, or in e-mail, or text messages.94 The
odds of storing a piece of exonerating evidence must grow at least
linearly as a function of the increase in storage capacity (i.e., storing
more of what is already being stored) and as a function of the increase
in types of information stored (i.e., storing additional kinds of infor-

88 See Kevin Poulsen, Zuckerberg, Page: NSA Has No “Direct Access” to Facebook or Google
Servers, WIRED (June 7, 2013, 7:40 PM), http://www.wired.com/threatlevel/2013/06/
prism-google-facebook/.
89 See infra Part III.
90 See Nicole Perlroth & John Markoff, A Peephole for the N.S.A., N.Y. TIMES, Nov. 26,
2013, at B1; Craig Timberg et al., Microsoft Moves to Boost Security, WASH. POST, Nov. 27,
2013, at A1.
91 James Ball et al., Revealed: How US and UK Spy Agencies Defeat Internet Privacy and
Security, GUARDIAN WKLY. (Sept. 5, 2013), http://www.theguardian.com/world/2013/sep/
05/nsa-gchq-encryption-codes-security/.
92 See John Foley, As Big Data Explodes, Are You Ready for Yottabytes?, FORBES (June 21,
2013, 10:23 AM), http://www.forbes.com/sites/oracle/2013/06/21/as-big-data-explodes-
are-you-ready-for-yottabytes/ (discussing growing data demands by the U.S. Department of
Defense and business).
93 See Rhoton, supra note 81 (arguing that businesses have incentive to store data R
which they may not even know how to analyze yet).
94 See Foley, supra note 92 (discussing how “burgeoning databases” force organiza- R
tions to “rethink their IT infrastructures”).
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mation). Actually, there is reason to believe that the ability to prove

innocence digitally will increase more than linearly. Bigger databases
allow algorithms to make more connections,95 and more connections
yield the ability to monetize more data, which in turn creates even
bigger databases.96
Storage has now reached the point where the product of ubiqui-
tous surveillance can be stored on a semi-permanent basis, as
datacenters have gotten bigger and better at a seemingly ever-increas-
ing rate.97 The PRISM program and like government surveillance
require massive data storage. “Full-take” systems, such as the United
Kingdom’s TEMPORA program, also require enormous storage be-
cause they ingest everything passing through a given conduit. Moreo-
ver, Congress is once again considering the Cyber Intelligence
Sharing and Protection Act (CISPA), which would permit sharing of
intelligence information with corporations, and vice versa, supposedly
to combat cyber-threats.98 This form of deep data mining can only
function, however, if sufficient storage is available to save the data
pending use.
Unsurprisingly, there are reports of large datacenters constructed
with precisely this sort of data mining in mind. Termed the largest in
the country, the NSA’s mammoth facility in Bluffdale, Utah, is in-
tended to store and parse data captured from worldwide electronic
communications.99 When completed, the Bluffdale Center will be five
times the size of the U.S. Capitol.100 According to reports, the project
was ready for operation in September 2013. The information to be
parsed includes “complete contents of private e-mails, cellphone calls,
and Google searches, as well as all sorts of personal data trails—park-
ing receipts, travel itineraries, bookstore purchases”—and much
more.101

95 See Greenberg, supra note 67 (“Using what will likely be the world’s fastest R
supercomputer and the world’s largest data storage and analysis facility, the NSA plans to
comb unimaginably voluminous troves of messages for patterns they could use to crack
AES . . . .”).
96 See Rhoton, supra note 81 (stored data need to be backed up, maintained, and R
“replicated and reused for different purposes”).
97 See Mark Hachman, Big Getting Bigger, Uptime Data Center Survey Finds, SLASHDOT
(Apr. 25, 2013), http://slashdot.org/topic/datacenter/big-getting-bigger-uptime-data-
center-survey-finds/ (“[T]he conclusion of preliminary data collection by the Uptime Insti-
tute . . . found that the largest data centers are receiving the largest budget increases.”).
98 See H.R. 3523, 112th Cong. (2d Sess. 2012) (proposed law allowing technology and
manufacturing companies to share data with the U.S. government); see also Jeff Nesbit,
CISPA Rolls Along, U.S. NEWS & WORLD REP. (May 6, 2013), http://www.usnews.com/news/
blogs/at-the-edge/2013/05/06/cispa-rolls-along.
99 See Greenberg, supra note 67. R
100 James Bamford, The NSA Is Building the Country’s Biggest Spy Center (Watch What You
Say), WIRED (Mar. 15, 2012, 7:24 PM), http://www.wired.com/threatlevel/2012/03/
ff_nsadatacenter/.
101 Id.
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998 CORNELL LAW REVIEW [Vol. 99:981

Some context is useful to appreciate the scale of the Bluffdale

Center. From 1986 to 2007, worldwide computing capacity increased
at a rate of 58% per year.102 While the bulk of information storage
remained analog until the year 2000, a dramatic shift occurred over
the next seven years, with digital storage accounting for well over 90%
of worldwide information storage. By contrast, all information stored
on paper decreased from 0.33% of the worldwide total in 1986 to
0.007% in 2007.103 It is also helpful to understand the sheer quantity
of information stored, using the following metric.
1,000 megabytes = 1 gigabyte (109)
1,000 gigabytes = 1 terabyte (1012)
1,000 terabytes = 1 petabyte (1015)
1,000 petabytes = 1 exabyte (1018)
1,000 exabytes = 1 zettabyte (1021)
1,000 zettabytes = 1 yottabyte (1024)
Typically, the capacity of a hard drive in a personal computer
(PC) is measured in gigabytes, where 1 “gig” holds several hundred
thousand pages of text. According to a study published in Science,
“[t]he total amount of information [in the world] grew from 2.6 opti-
mally compressed exabytes in 1986 to 15.8 in 1993, over 54.5 in 2000,
and to 295 optimally compressed exabytes in 2007.”104 The Bluffdale
Center will store yottabytes of data, that is, thousands of times the
amount of all human data existing in 2007.105 Yet the government’s
data-storage capacity lags far behind the ability, and motivation, of the
combined private sector. Facebook and Google are in the midst of
enormous datacenter construction projects.106 Google is building its
new datacenters in Finland, where the cold weather permits the serv-
ers to lose heat more efficiently.107
The revolution in storage capacity is the result of larger and bet-
ter datacenters, as well as improvements in storage technology, more
efficient data management algorithms, and the explosion of cheap,

102 Martin Hilbert & Priscila López, The World’s Technological Capacity to Store, Communi-
cate, and Compute Information, 332 SCIENCE 60, 63–64 (2011).
103 Id. at 62.
104 Id.; see Jon Stewart, Global Data Storage Calculated at 295 Exabytes, BBC NEWS (Feb. 11,
2011, 6:25 AM), http://www.bbc.co.uk/news/technology-12419672 (noting that 295
exabytes “is the equivalent of 1.2 billion average hard drives”).
105 See Greenberg, supra note 67. R
106 See Stacey Higginbotham, Data Center Rivals Facebook and Google Pump $700M in New
Construction into Iowa, GIGAOM (Apr. 23, 2013, 1:09 PM), http://gigaom.com/2013/04/
23/data-center-rivals-facebook-and-google-pump-700m-in-new-construction-into-iowa/ (dis-
cussing Facebook’s $300 million investment and Google’s $400 million investment in addi-
tional data centers in Iowa).
107 Katie Fehrenbacher, Cool Finnish Weather the New Hotness for Data Centers, GIGAOM
(Sept. 12, 2011), http://gigaom.com/2011/09/12/cool-finnish-weather-the-new-hotness-
for-green-data-centers/.
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often portable storage in the hands of consumers.108 Gone is the nec-

essary connection of data to a given location. Data can be shifted
smoothly from virtual server to virtual server.109 The movement and
allocation of data as needed permits efficiencies in data processing
and produces maximum accessibility. In addition, bandwidth has un-
dergone a worldwide increase in throughput, making accessing data
remotely as or more efficient than accessing it locally.110
The result of this cluster of technologies is termed “the cloud,” in
somewhat passé technological parlance.111 This phrase is meant to
convey the idea that data can be remotely stored, processed, and ac-
cessed in a way that outcompetes local processing or storage.112 The
result has been a transformation of computing away from the PC para-
digm.113 Cloud computing has facilitated the rise of tablets and
smartphones, which focus on smooth presentation of information that
is parsed and stored remotely.114 In a sense, this is less a revolution
than a swing of the pendulum. When transfer costs are higher than
processing costs, local processors and storage become more impor-
tant. When transfer costs are lower than processing costs, however,
remote storage and processing dominate.
An example drawn from contemporary technology literature may
further clarify the scope of these changes in storage capacity.
“Hadoop” is an open-source platform for data storage.115 A single one
of Facebook’s Hadoop clusters was reported to include 4,000 ma-
chines with over 100 petabytes of data.116 (For comparison, 1 petabyte

108 See Quentin Hardy, Big Data Done Cheap, N.Y. TIMES (Mar. 4, 2013, 8:00 AM),
http://bits.blogs.nytimes.com/2013/03/04/big-data-done-cheap/? (discussing develop-
ment of data storage cards that can make ordinary servers, costing thousands of dollars,
perform activities currently done on multimillion-dollar racks of computers).
109 See Chris Poelker, Will Cloud Computing Kill the Storage Area Network?, COMPUTER
WORLD (Dec. 11, 2012, 6:00 AM), http://blogs.computerworld.com/data-storage/21360/
will-private-cloud-kill-storage-area-network (discussing the availability of cloud storage).
110 Cf. Jon Brodkin, Bandwidth Explosion: As Internet Use Soars, Can Bottlenecks Be Averted?,
ARS TECHNICA (May 1, 2012, 12:40 PM), http://arstechnica.com/business/2012/05/
bandwidth-explosion-as-internet-use-soars-can-bottlenecks-be-averted/.
111 See Brian Braiker, Understanding “Cloud Computing,” NEWSWEEK, June 20, 2008,
http://www.newsweek.com/technology-understanding-cloud-computing-90829.
112 See id.
113 See Joshua Gruenspecht, “Reasonable” Grand Jury Subpoenas: Asking for Information in
the Age of Big Data, 24 HARV. J.L. & TECH. 543, 548 (2011) (discussing how the increase in
data storage has “practically eliminated the requirement that users clean out their email
inboxes and Internet browsing history periodically in order to free up storage”); Ben
Worthen et al., H-P Explores Quitting Computers as Profits Slide, WALL ST. J., Aug. 19, 2011, at
A1 (discussing H-P’s decision—in the face of declining revenue—to shutdown its tablet
and smartphone operations, and considerations to abandon efforts to sell computers).
114 See Worthen et al., supra note 113. R
115 See Katherine R. Lewis, What the Heck Is Hadoop?, FCW (Mar. 25, 2013), http://fcw.
com/articles/2013/03/25/what-is-hadoop.aspx.
116 Cade Metz, Meet the Data Brains Behind the Rise of Facebook, WIRED (Feb. 4, 2013, 6:30
AM), http://www.wired.com/wiredenterprise/2013/02/facebook-data-team/.
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1000 CORNELL LAW REVIEW [Vol. 99:981

was said to be the equivalent of 250 billion pages of text.)117 The

Hadoop clusters permit storage of activities of Facebook’s approxi-
mately one billion users.118 More importantly, the Hadoop platform
permits clusters to expand to capture more data as it becomes availa-
ble.119 As a result, there are very few functional limits to the amount
of data that may be kept even if there is no immediate use for the
information. This feature makes the technology particularly attractive
to companies such as Facebook, which must parse amounts of data
that continuously expand past the ability of any single datacenter to
handle.120
Facebook’s new Hadoop-based system came out in February
2013. Coincidentally or not, the system is called “Prism”—the same
name used by the NSA for the system implemented by Silicon Valley
companies to provide the agency smooth access to social media data.
According to the technology press, Facebook’s Prism permitted a
qualitative shift in how the information can be processed and
parsed.121 Each research team can have faster access to the entire dis-
tributed dataset as the system determines the data necessary for a spe-
cific task and then copies that data to a specific datacenter.
The examples of the cross-datacenter Hadoop cluster and the
Facebook Prism system underscore several points necessary for our
conception of digital innocence. Technology companies in general,
and social media companies in particular, are dedicated to collecting
and preserving data about human relationships on an unprecedented
scale. Not only is the amount of this information increasing non-
linearly, but the ability to parse this information is also moving closer
to real time. Many of these systems are open source or freely licensa-
ble, meaning that as soon as one company develops the capacity to
expand significantly its data-storage and parsing capabilities, other
companies can follow suit at lower costs.122
With increases in data storage, data flexibility, and data-process-
ing efficiency come new tools that use the data to produce meaningful
results for the prosecution or defense. One possible example is the
new RIOT (rapid information overlay technology) system modeled by
the security firm Raytheon.123 RIOT gathers geolocation data from a

117 Vance, supra note 61. R

118 See id.
119 Id.
120 See Metz, supra note 116. R
121 See id.
122 See Cade Metz, Spark: Open Source Superstar Rewrites Future of Big Data, WIRED (June
19, 2013, 6:30 AM), http://www.wired.com/wiredenterprise/2013/06/yahoo-amazon-
amplab-spark/all/ (discussing Spark, an open-source data crunching platform 100 times
faster than Hadoop).
123 Alex Fitzpatrick, Security Firm Can Use Social Media to Track People’s Movements, MASH-
ABLE (Feb. 11, 2013), http://mashable.com/2013/02/11/social-media-tracking/.
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range of social media platforms to provide an in-depth picture of the

ongoing life of the target.124 For instance, the system identified that a
test subject used the gym every Monday at 6:00 AM.125 Obviously, this
would be an extremely useful fact for anyone who was interested in
finding the subject or in gaining access to his laptop.126
These examples highlight ongoing increases in the ability to store
and parse data. But they are not offered as the latest development—
nor could they be, given the pace of invention. Rather, the point is
that this increase in the ability to store data now, coupled with the
increase in the ability to leverage data already stored, can yield proof
of innocence in criminal cases. Social media has been critical to some
prosecutions.127 We predict that it could be central to future trial and
post-conviction exoneration efforts, as the increasingly sophisticated
tools currently used in the commercial technology sector come into
widespread use by legal advocates.128 This will occur over the ever-
larger databases made possible by increases in data-storage capacity
and flexibility.

B. Increase in Types of Information

There has also been a shift in the sorts of information stored and
collected. Specifically, the past several years have seen significant in-
creases in at least three types of data that could bear on the question
of digital innocence: comprehensive browser-tracking information,
geolocation and mobile location information, and social network
mapping data. The first, comprehensive browser tracking, represents
a change in quantity and quality of data recording. Nearly everything
citizens do online is tracked and logged by advertisers,129 which now
employ more data about users’ online behavior than ever before. A
prime example is Google, which not only tracks user behavior over its
own services (e.g., YouTube, Gmail, and the Google flagship search
engine) but also behavior on any site that carries Google advertising.
Because this represents a very high percentage of the active commer-

124 Id.
125 Ryan Gallagher, Defence Giant Builds “Google for Spies” to Track Social Networking Users,
THE GUARDIAN, Feb. 10, 2013, at A1.
126 See id.
127 See Justin P. Murphy & Adrian Fontecilla, Social Media Evidence in Government Investi-
gations and Criminal Proceedings: A Frontier of New Legal Issues, 19 RICH. J.L. & TECH. 1, 23–24
(2013) (discussing cases in which MySpace and Facebook accounts contained significant
evidence used by prosecution).
128 See MANYIKA ET AL., supra note 18, at 2. R
129 See Valentino-Devries & Singer-Vine, supra note 64 (noting that of “roughly 70 pop- R
ular websites that request a login . . . more than a quarter of the time, the sites passed
along a user’s real name, email address or other personal details, such as username, to
third-party companies”).
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1002 CORNELL LAW REVIEW [Vol. 99:981

cial Internet,130 Google knows the comprehensive online habits of a

huge proportion of citizens.131 But Google is not the only tracker.
Most popular webpages transmit to multiple tracking entities.132
These entities, and the advertisers to whom they sell the data, use
comprehensive browser-tracking information for targeted behavioral
advertising—that is, advertisements based on the user’s past browsing
and purchasing habits.133 This information can be as useful to prose-
cutors as it is to advertisers. Comprehensive browser-tracking data, as
well as e-mail account-use data, search data, and other information
gathered through comprehensive consumer surveillance, are rou-
tinely sought and obtained by state or federal prosecutors, usually
without resort to a warrant.134
Another important category is geolocation data, which stems
from the fact that most mobile devices now offer global positioning
system (GPS) capability and nearly all such devices must speak to one
or more cell towers.135 This cell-site location information (CSLI) or
GPS information is of significant value to online services and advertis-
ers because it permits narrower tailoring of advertisements based on
the real-world location of the client, while also providing a window
into the offline, real-world habits and economic behavior of the
cellphone owner.136 The resulting CSLI or GPS information is of in-
terest to law enforcement as well, since it can establish the real-world
location of a cellphone and, at least presumably, the presence of the
owner.137
For exactly the same reason, suspects and defendants may be in-
terested in CSLI and cellphone GPS data as a means to establish the

130 See Robert Epstein, Google’s Gotcha, U.S. NEWS & WORLD REP. (May 10, 2013),
http://www.usnews.com/opinion/articles/2013/05/10/15-ways-google-monitors-you.
131 See id.
132 See Ellen Messmer, Study: 86% of Top Websites Expose Visitors to Third-Party Tracking
Cookies, NETWORK WORLD (June 28, 2012, 12:47 PM), http://www.networkworld.com/
news/2012/062812-tracking-cookies-260544.html.
133 See id.
134 See Ryan Gallagher, Microsoft Finally Releases Info About Law Enforcement Shooting on
Skype, Other User Data, SLATE (Mar. 21, 2013, 2:38 PM), http://www.slate.com/blogs/future
_tense/2013/03/21/microsoft_transparency_report_details_law_enforcement_requests_
for_skype.html?wpisrc=obinsite (“The report reveals that in 2012, Microsoft and Skype re-
ceived a total of 75,378 law enforcement requests . . . .”).
135 See Ellen Nakashima, “Tower Dumps” Give Police Masses of Cellphone Data, WASH. POST,
Dec. 9, 2013, at A1.
136 See Anton Troianovski, Phone Firms Sell Data on Customers, WALL ST. J., May 22, 2013,
at B1.
137 See Hansen, supra note 58; see also Andrew E. Kramer, Ukraine’s Opposition Says Gov- R
ernment Stirs Violence, N.Y. TIMES, Jan. 22, 2014, at A6 (protesters received threatening text
message from ersatz government cellphone tower).
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2014] DIGITAL INNOCENCE 1003

location of a range of actors important to a criminal case.138 An indi-

vidual’s own cell-site location information may provide an alibi
straight off,139 perhaps resulting in no charges being brought at the
outset of a case. But CSLI might also be useful in later exoneration
cases. Among other things, it can establish the presence or absence of
witnesses. This information might identify witnesses who could sup-
port a defense, for instance, or it might demonstrate that a prosecu-
tion witness was not in a place or position to observe matters within
the scope of his or her testimony.
A user’s own CSLI may be obtained from an Internet service pro-
vider (ISP), but information about other users is difficult to get
through a traditional subpoena to an ISP.140 There are other options,
however, based on developments such as the rise of geolocation ser-
vices that share information between consumers.141 A range of com-
puter software applications (i.e., “apps”) exists to tell consumers
where their friends are in real time.142 This information can then be
retrieved by anyone in the social group. Other geolocation informa-
tion is simply embedded in files and can be read by anyone who
knows where to look.143 A good example is uploaded photographs,
which may have time and geolocation information embedded in the
uploaded file, often without the knowledge of an amateur photogra-
pher.144 Pictures that place a defendant in a specific place at a spe-
cific time may be key to his exoneration.
A third category of information, social media, has played an in-
creasing role in investigations and prosecutions. According to a Lexis-
Nexis survey of law enforcement personnel, four out of five
respondents use social networking sites to aid investigations.145 The

138 See Cell Phone Tower Records Can Be Crucial in Court Cases, GAZETTE.NET (Nov. 14,
2012), http://www.gazette.net/article/20121114/NEWS/711149556/cell-phone-tower-
records%20-can-be-crucial-in-court-cases&template=gazette.
139 See Michael Brick, Cellphone Records Help to Clear a Murder Suspect, N.Y. TIMES, Aug.
24, 2007, at B3 (“A man was cleared of murder charges yesterday after offering cellular
telephone records [containing his location] as alibi evidence.”).
140 See infra Part V.A.2.
141 See, e.g., Adam Popescu, 3 Must-Have Geolocation Apps, MASHABLE (May 8, 2013),
http://mashable.com/2013/05/08/top-geolocation-apps-you-need/.
142 See John D. Sutter, What’s Next for “Check-in” Apps?, CNN (Aug. 27, 2010, 10:44 AM),
http://www.cnn.com/2010/TECH/innovation/08/27/checkin.apps/index.html.
143 See Mathew J. Schwartz, 7 Facts About Geolocation Privacy, INFO. WK. (Aug. 20, 2012,
12:13 PM), http://www.informationweek.com/security/risk-management/7-facts-about-ge
olocation-privacy/d/d-id/1105877? (“While smartphone users may realize that their de-
vices have the capability to track their whereabouts, what they may not know is that other
devices, such as new cameras, also have the capability to know their location and add loca-
tion information to a photograph . . . .” (internal quotation marks omitted)).
144 See id.
145 See LEXISNEXIS, LAW ENFORCEMENT PERSONNEL USE OF SOCIAL MEDIA IN INVESTIGA-
TIONS: SUMMARY OF FINDINGS 1, http://images.solutions.lexisnexis.com/Web/LexisNexis/
Infographic-Social-Media-Use-in-Law-Enforcement.pdf.
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1004 CORNELL LAW REVIEW [Vol. 99:981

value of social media data comes from its availability, its specificity
when tied to Internet protocol (IP) logs or geolocation information,
and the fact that it maps the social networks that often serve as the
broader social contexts for alleged criminal wrongdoing.
By enhancing pre-digital media, it is also possible to data mine
the past.146 Although analog recordings of video and sound have sup-
ported convictions for years, the tapes are often blurry or the sounds
unclear and therefore subject to challenge. The situation has
changed with the marriage of digital technology with sophisticated
search algorithms.147 This technology may help reveal more informa-
tion from background noise on analog-taped telephone calls or other
recordings than was ascertainable at the time of trial. Likewise, state-
of-the-art graphics programs can resolve blurred features on pre-digi-
tal tapes, which then might show that the wrong person was
convicted.148
These new types of information could play an ever-larger part in
defense and post-conviction exoneration efforts.149 Obtaining access
to data will be an impediment in such efforts,150 although presumably
the hurdle will be at its lowest for broadly shared social media.151 In-
formation from social media is often publicly posted, publicly stored,
and even publicly searchable for a limited time. It may not be perma-
nently stored outside of the virtual wall of the social network itself,
however, and semi-closed ecosystems like Facebook can be hard to
research. But tweets and blogs are often stored by wayback machines

146 See, e.g., Maurice Possley, Roberto Cuevas, NAT’L REGISTRY OF EXONERATIONS, https://
www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3928 (“[The de-
fendant’s] appellate attorney informed the district attorney’s office that another enhanced
version of the video recording had been made using state of the art technology that al-
lowed for the creation of still photographs. The attorney contended the new photographs
showed that [the defendant] was not involved.”).
147 See Jeremy Brown, Pan, Tilt, Zoom: Regulating the Use of Video Surveillance of Public
Places, 23 BERKELEY TECH. L.J. 755, 762 (2008) (“The technological constraints that pre-
vented misuse of analog surveillance cameras—grainy images, limited storage capacity, and
difficult duplication—no longer impede video surveillance.”); cf. Ric Simmons, Technology-
Enhanced Surveillance by Law Enforcement Officials, 60 N.Y.U. ANN. SURV. AM. L. 711,
712 (2005) (“These surveillance tools . . . do not provide extraordinarily intrusive
information . . . .”).
148 For example, Brian Avery was convicted in 1994 of armed robbery based in part on
surveillance videos. Years later, digital enhancement techniques showed that the person in
the videotape was three inches shorter than Avery. See State v. Avery, 807 N.W.2d 638, 654
(Wis. Ct. App. 2011) (granting a new trial on the basis of the new evidence), rev’d, 826
N.W.2d 60, 76–77 (Wis. 2013) (ruling new trial not warranted).
149 See Robert D. Richards, Compulsory Process in Cyberspace: Rethinking Privacy in the Social
Networking Age, 36 HARV. J.L. & PUB. POL’Y 519, 523 (2013).
150 See, e.g., Ethan Bronner, Lawyers, Saying DNA Cleared Inmate, Pursue Access to Data,
N.Y. TIMES, Jan. 4, 2013, at A1.
151 See Gruenspecht, supra note 113, at 544 (“The advent of mass digital storage, how- R
ever, has significantly increased the chances that records of any given document exist and
is increasingly unifying the locations in which those records can be found.”).
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or Internet archives,152 and in some cases, Google itself keeps a record

of an archived page.153 This quasi-public data could be an important
source of exculpatory evidence as access and search tools grow in
strength.

C. Aggregation and Cross-Referencing of Databases

At first, digital innocence may be proved by single “smoking gun”
pieces of evidence culled from now-colossal datasets. But just as guilt
is often established by piecing together different pieces of data into a
convincing pattern, innocence might be demonstrated in a similar
fashion by linked data and pattern analysis. The more linked data the
system can access, the more patterns that may emerge, even from un-
likely concatenations of data points. This methodology is most ad-
vanced in advertising. As mentioned, advertisers have access to large
commercial databases, providing information they sell to one another
in a semi-closed ecosystem. Access to this ecosystem is either through
deals for entire databases or by access to databases that draw on these
stores. The databases are increasingly linked, permitting an advertiser
to target potential customers based not just on their physical proxim-
ity to the seller’s location, their web-surfing pattern, their credit card
purchasing history, or their recent life events (e.g., births, funerals,
and vacations), but rather on a combination of all this information.154
Connected databases yield insights that individual databases do
not. Knowing where someone is in real space may augment informa-
tion about his browsing history, while knowing a user’s social network
can supplement information about his purchasing history.155 Adver-
tisers routinely target those consumers who are thought leaders,
whose purchasing decisions affect others in their social network, by
cross-referencing knowledge of purchasing history with social network
information. This permits advertisers to optimize advertising efforts
by focusing customer services and perks on influential members of a
network.156 The same type of cross-linking is a common feature of law
enforcement’s use of data. Police start by examining text messages,
cellphone connections, and social networks. The connection of com-

152 See, e.g., About the Internet Archive, INTERNET ARCHIVE, http://archive.org/about/
(last visited June 28, 2013).
153 See Google Cached Pages: What Are Cached Pages?, GOOGLE GUIDE, http://www.google
guide.com/cached_pages.html (last visited Jan. 16, 2014).
154 See Neil M. Richards, The Dangers of Surveillance, 126 HARV. L. REV. 1934, 1957
(2013).
155 See Ashkan Soltani et al., NSA Using Online “Cookies” to Find Targets, WASH. POST,
Dec. 11, 2013, at A1.
156 This practice became so widespread that rules governing sponsored advertising
were expanded to include bloggers who received gifts from a company whose products
they reviewed. See Tim Arango, Soon, Bloggers Must Give Full Disclosure, N.Y. TIMES, Oct. 6,
2009, at B3.
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1006 CORNELL LAW REVIEW [Vol. 99:981

munication history (i.e., text, voice, and Internet) with geolocation

data and social network mapping can be a heady technique.157
The question is whether defense or later exoneration efforts can
also benefit from data aggregation and cross-linking. As always, access
constraints are a problem, but the barrier is decreasing over time. Al-
ready many of these databases can be accessed by anyone with a lim-
ited liability company and a credit card. For example, a privacy
advocate purchased for $5 the personal details of one million
Facebook users, from a seller who allegedly employed Facebook apps
to gather the information.158 Facebook’s embarrassment was not at
the fact of data sales, which are one of its core offerings, but at the
publicity concerning the ease with which anyone with a few dollars
can buy and sell large amounts of user data.159
The impact of cross-linking and aggregation is strengthened by
the advent of a new generation of wearable computing technology
that increasingly links online data with data about the real world.
Cellphones report real-space location and correlate it with browsing
history,160 with cellphone apps providing rich information to both
app developers and government actors.161 Now consider technology
like Google Glass, which permits a user to record and upload a con-
stant stream of information about the people and places around
her.162 It is hard to overstate the potential impact on criminal justice
from millions of citizens wearing this technology, particularly since
Google is aware of the location and status of each person who wears
one of its products.163 Imagine the possibilities for both government

157 See, e.g., Memorandum in Support of Motion for Full Discovery Regarding the Facts
and Circumstances Underlying Surveillance at 16–17, 21–25, 31, 49, United States v.
Mohamud, 941 F. Supp. 2d 1303 (D. Or. 2013) (No. 3:10-cr-00475-KI) [hereinafter
Mohamud Motion] (describing various techniques used by law enforcement).
158 See Ben Weitzenkorn, Details of 1 Million Facebook Users Sold for $5, NBC NEWS (Oct.
26, 2012, 4:36 PM), http://www.nbcnews.com/technology/details-1-million-facebook-
users-sold-5-1C6714691.
159 See Bogomil Shopov, Mixed Feelings After My Conversation with Facebook.(updated), A
GROWTH HACKER BLOG, http://talkweb.eu/mixed-feelings-after-my-conversation-with-
facebook/ (last visited Mar. 25, 2014).
160 See Charles Arthur, iPhone Keeps Record of Everywhere You Go, THE GUARDIAN (Apr. 20,
2011), http://www.theguardian.com/technology/2011/apr/20/iphone-tracking-prompts-
privacy-fears; Greg Kumparak, AT&T Considers Selling Your Browsing History, Location, and
More to Advertisers. Here’s How to Opt Out, TECHCRUNCH (July 5, 2013), http://techcrunch.
com/2013/07/05/att-considers-selling-your-browsing-history-location-and-more-to-adverti
sers-heres-how-to-opt-out/.
161 See James Glanz et al., Spy Agencies Tap Data Streaming from Phone Apps, N.Y. TIMES,
Jan. 28, 2014, at A1.
162 Google Glass—What It Does, GOOGLE, http://www.google.com/glass/start/what-it-
does/ (last visited Aug. 25, 2013).
163 See Julia Angwin & Jennifer Valentino-Devries, Apple, Google Collect User Data, WALL
ST. J. (Apr. 22, 2011), http://online.wsj.com/news/articles/SB1000142405274870398
3704576277101723453610.
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intrusion and proof of innocence if a simple query to Google would

reveal all wearers of Glass within 300 meters of the location of an inci-
dent, along with an indication as to whether those people were re-
cording at the time of the event. The tools are simply too good for
law enforcement to pass up willingly. The issue is whether the law will
allow government to exploit this data source and, if so, whether the
information and related tools will be available to defendants in the
quest to prove their innocence.

III
THE LAW OF DIGITAL SURVEILLANCE
Given the technological basis for digital innocence—as a func-
tion of the growth in database size, the wealth of new types of informa-
tion stored, and the increase in the ability to connect more data
points to new types of information—this Part addresses the legal foun-
dation for the current state of government surveillance, including
how the government got access to Big Data. This implicates elements
of standard Fourth Amendment doctrine as well as the shadowy re-
gime of government surveillance in service of national security. The
jurisprudence helps frame a discussion of the legal basis for and im-
pediments to defense access to proof of digital innocence.

A. Surveillance and the Fourth Amendment

The government’s authority to conduct digital surveillance and
draw upon the fruits of Big Data traces back to relatively low-tech
eavesdropping and wiretapping. For decades, these practices were le-
gally uncontroversial based on the theory that listening devices with-
out an accompanying physical trespass did not violate the Fourth
Amendment.164 Even when the Supreme Court held that federal leg-
islation precluded the introduction at trial of conversations overheard
on wiretaps by law enforcement,165 the Justice Department took the
position that it was still permissible to conduct warrantless electronic
surveillance to gather intelligence for national security purposes.166
In 1967, the Court’s decision in Katz v. United States167 rejected
the prevailing doctrine that had allowed warrantless wiretapping but
now “ignore[s] the vital role that the public telephone has come to
play in private communication.”168 In the ensuing decades, the Katz

164 See, e.g., Olmstead v. United States, 277 U.S. 438, 465–66 (1928).
165 See Nardone v. United States, 308 U.S. 338, 339 (1939); Nardone v. United States,
302 U.S. 379, 380–85 (1937).
166 See, e.g., Herbert Brownell, Jr., The Public Security and Wire Tapping, 39 CORNELL L.Q.
195, 197–200 (1954); Richard G. Donnelly, Comments and Caveats on the Wire Tapping Contro-
versy, 63 YALE L.J. 799, 799–801 (1954).
167 389 U.S. 347 (1967).
168 Id. at 352.
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1008 CORNELL LAW REVIEW [Vol. 99:981

test for when state action implicates the Fourth Amendment would be
interpreted as requiring an expectation of privacy that “society is pre-
pared to recognize as ‘reasonable.’”169 Somewhat ironically, the case
that safeguarded conversations by telephone, one of the seminal
breakthroughs in modern communications, did not provide much
protection against subsequent advances of technology. More often
than not, the Supreme Court has held that a given investigative tech-
nique does not violate a reasonable expectation of privacy and there-
fore does not trigger the Fourth Amendment at all.170
Two features of this jurisprudence are especially important for
electronic surveillance: (1) data about data (i.e., metadata) may be
considered deficient of any content that might engender a privacy ex-
pectation,171 and (2) data may lose the protection afforded by a rea-
sonable expectation of privacy once the information is provided to
third parties.172 Thus, the government may eavesdrop on otherwise
private conversations in residences transmitted by wired infor-
mants,173 obtain records detailing an individual’s otherwise private fi-
nancial information,174 and install pen registers on home phone
numbers to determine whom someone is calling.175 In the latter

169 Id. at 361 (Harlan, J., concurring); see also Erik Luna, The Katz Jury, 41 U.C. DAVIS L.
REV. 839, 842–43 (2008) (discussing the basis and evolution of the Katz standard).
170 See, e.g., Illinois v. Caballes, 543 U.S. 405, 407–10 (2005) (use of a narcotics-detec-
tion dog during a lawful traffic stop); Florida v. Riley, 488 U.S. 445, 450–52 (1989) (obser-
vations of a private greenhouse from a helicopter 400 feet away); California v. Greenwood,
486 U.S. 35, 39–44 (1988) (warrantless search and seizure of garbage left on the street for
collection); United States v. Dunn, 480 U.S. 294, 300–03 (1987) (investigation, without
physically entering, of a barn outside the curtilage of a private house); California v.
Ciraolo, 476 U.S. 207, 212–15 (1986) (observations of a private backyard from a private
airplane); Dow Chem. Co. v. United States, 476 U.S. 227, 234–39 (1986) (aerial photogra-
phy taken from public navigable airspace); Oliver v. United States, 466 U.S. 170, 176–77
(1984) (government intrusion on open fields); United States v. Jacobsen, 466 U.S. 109,
118–26 (1984) (DEA agents’ warrantless search and seizure of a package after the owner’s
privacy interest was compromised); United States v. Place, 462 U.S. 696, 700–07 (1983)
(subjecting personal luggage to a “canine sniff”).
171 See Smith v. Maryland, 442 U.S. 735, 741–43 (1979).
172 See United States v. Miller, 425 U.S. 435, 442–44 (1976).
173 See United States v. White, 401 U.S. 745, 746–54 (1971).
174 See United States v. Payner, 447 U.S. 727, 741–42 (1980) (loan guarantee); Miller,
425 U.S. at 440–45 (copies of checks and deposit slips retained by bank); Couch v. United
States, 409 U.S. 322, 335–36 (1973) (financial records given to accountant).
175 See Smith, 442 U.S. at 741–46. As defined by statute, a pen register “records or
decodes dialing, routing, addressing, or signaling information transmitted by an instru-
ment or facility from which a wire or electronic communication is transmitted.” 18 U.S.C.
§ 3127(3) (2012). By contrast, a trap and trace device “captures the incoming electronic
or other impulses which identify the originating number or other dialing, routing, address-
ing, and signaling information reasonably likely to identify the source of a wire or elec-
tronic communication.” 18 U.S.C. § 3127(4). Neither pen registers nor trap and trace
devices are supposed to include the contents of communications. Although Smith only
concerned pen registers, its logic has been applied to trap and trace devices as well. See,
e.g., United States v. Hallmark, 911 F.2d 399, 402 (10th Cir. 1990) (citing Smith for the
proposition that “[t]he installation and use of a pen register and trap and trace device is
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instance, the Supreme Court’s decision in Smith v. Maryland held that,

by conveying numerical information to a phone company, an individ-
ual “assumed the risk” this information would be provided to govern-
ment agents.176 Given that Big Data is the aggregation of data about
data, and that all data online is handed off to ISPs in some form or
another, the foregoing principles have been (over)extended to place
the entire Internet outside of meaningful constitutional protections,
thereby allowing massive, suspicionless, and even prospective data
gathering by government.
The advance of technology itself has also been problematic. At
times, the Supreme Court seems to sense that reasonable expectations
can be corroded by a conclusory determination that a new technology
affords no privacy. In fact, a few post-Katz decisions have found the
Fourth Amendment applicable to high-tech surveillance. In Kyllo v.
United States, the Court examined the use of a thermal imager to scan
for heat emanating from a home, a technique that allowed officers to
infer a suspect was growing marijuana inside.177 “We think that ob-
taining by sense-enhancing technology any information regarding the
interior of the home that could not otherwise have been obtained
without [a physical intrusion] constitutes a search,” the Kyllo Court
concluded, “at least where (as here) the technology in question is
not in general public use.”178 To hold otherwise “would leave the
homeowner at the mercy of advancing technology.”179
This insight continues to be strongly tested, however, since Big
Data technology allows the government not only to peer into the
home but also to track individuals everywhere they go. Based on a
pair of electronic-beeper cases from the 1980s, law enforcement had
been permitted to deploy tracking devices without a warrant so long
as the information concerned public movements.180 Nonetheless, the
Supreme Court did warn that “dragnet-type law enforcement prac-
tices” might raise “different constitutional principles,”181 a proviso
that would linger for nearly three decades.
In a 2012 case, United States v. Jones,182 law enforcement had at-
tached a GPS tracking device to the defendant’s vehicle for the pur-

not a ‘search’ requiring a warrant pursuant to the Fourth Amendment”); S. Bell Tel. & Tel.
Co. v. Hamm, 409 S.E.2d 775, 780 (S.C. 1991) (“In light of the holding in Smith, we cannot
hold that the telephone number of the equipment from which a call has been placed is
entitled to more privacy than the telephone numbers called by someone.”).
176 Smith, 442 U.S. at 744–45.
177 533 U.S. 27, 29–30 (2001).
178 Id. at 34.
179 Id. at 35.
180 See United States v. Karo, 468 U.S. 705 (1984); United States v. Knotts, 460 U.S. 276
(1983).
181 Knotts, 460 U.S. at 284.
182 132 S. Ct. 945 (2012).
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1010 CORNELL LAW REVIEW [Vol. 99:981

pose of following his public movements over the course of four

weeks.183 The Supreme Court concluded that the installation and use
of the device constituted a search, although not based on the reason-
ing in Katz. According to Justice Antonin Scalia, “the Katz reasonable-
expectation-of-privacy test . . . added to, not substituted for, the common-
law trespassory test.”184 Here, the Fourth Amendment was triggered
by the government’s physical occupation of private property—that is,
the placement of the device on the defendant’s car—for the purpose
of obtaining information.
In an important concurrence,185 Justice Sonia Sotomayor agreed
that the government had unconstitutionally usurped private property
in order to conduct surveillance of the defendant. But she expressed
concern that the government could obtain the same information “by
enlisting factory- or owner-installed vehicle tracking devices or
GPS-enabled smartphones,” which could provide “a wealth of detail
about [an individual’s] familial, political, professional, religious, and
sexual associations.”186 The data could be stored and efficiently
mined by government in covert processes that evade the non-legal
checks on abusive tactics—namely, limited resources and popular crit-
icism—with the prevailing blanket third-party exception allowing Big
Data surveillance to avoid constitutional scrutiny.
For this reason, Justice Sotomayor suggested that it might be nec-
essary to reevaluate the proposition that people have no reasonable
expectation of privacy in information voluntarily disclosed to third
parties.187
This approach is ill suited to the digital age, in which people reveal
a great deal of information about themselves to third parties in the
course of carrying out mundane tasks. People disclose the phone
numbers that they dial or text to their cellular providers; the URLs
that they visit and the e-mail addresses with which they correspond
to their Internet service providers; and the books, groceries, and
medications they purchase to online retailers. . . . I for one doubt
that people would accept without complaint the warrantless disclo-

183 “By means of signals from multiple satellites, the device established the vehicle’s
location within 50 to 100 feet, and communicated that location by cellular phone to a
Government computer.” Id. at 948.
184 Id. at 952.
185 Justice Sotomayor provided the critical fifth vote in support of Justice Scalia’s
trespassory test for Fourth Amendment protection where “the Government obtains infor-
mation by physically intruding on a constitutionally protected area.” Id. at 954
(Sotomayor, J., concurring) (quoting majority opinion). But she also agreed with a four-
member concurrence that, “at the very least, ‘longer term GPS monitoring in investiga-
tions of most offenses impinges on expectations of privacy.’” Id. at 955 (quoting Justice
Samuel Alito’s concurrence).
186 Id. at 955.
187 Id. at 957 (citing Smith v. Maryland, 442 U.S. 735, 742 (1979); United States v.
Miller, 425 U.S. 435, 443 (1976)).
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sure to the Government of a list of every Web site they had visited in
the last week, or month, or year. But whatever the societal expecta-
tions, they can attain constitutionally protected status only if our
Fourth Amendment jurisprudence ceases to treat secrecy as a pre-
requisite for privacy.188
The opinion underscores the potential danger of a third-party ex-
ception in the age of Big Data technology, although the actual state of
affairs has already gone beyond the world Justice Sotomayor describes.
She expressed concern about a state of affairs in which any record for
any person could be disclosed to the government, retrospectively. But
as discussed below,189 the third-party exception has been expanded to
require disclosure of every record regarding every person,
prospectively.190

B. Surveillance and FISA

As Katz noted, the warrant requirement is “subject only to a few
specifically established and well-delineated exceptions.”191 The opin-
ion explicitly reserved the question of “[w]hether safeguards other
than prior authorization by a magistrate would satisfy the Fourth
Amendment in a situation involving the national security.”192 Con-
gress responded to the Supreme Court’s jurisprudence by enacting
Title III of the Omnibus Crime Control and Safe Streets Act of
1968.193 Among other things, Title III generally prohibits electronic
eavesdropping but authorizes law enforcement to obtain a court order
to engage in such surveillance as a last resort—in particular, when
there is probable cause to believe that an individual has committed, is
committing, or is about to commit certain serious crimes and that the
wiretap will intercept communications regarding those crimes.194
Consistent with Katz’s reservation, Title III disclaimed any pretense of
limiting the President’s power to protect the United States against
hostile powers and to ensure the secrecy of U.S. national security
information.195

188 Id.
189 See infra Part III.C.
190 See infra Part III.C.
191 Katz v. United States, 389 U.S. 347, 357 (1967).
192 Id. at 358 n.23; see also id. at 363–64 (White, J., concurring) (noting that the deci-
sion did not address national security cases).
193 Pub. L. No. 90-351, 82 Stat. 197 (1968) (codified as amended at 18 U.S.C.
§§ 2510–2522 (2012)). Congress was reacting not only to Katz but also to Berger v. New
York, 388 U.S. 41 (1967), which had struck down a state eavesdropping statute.
194 Title III wiretaps involve a detailed application process and are subject to limita-
tions on duration and scope, including procedures that minimize the capture of innocent
communications. See 18 U.S.C. § 2518(3) (2012).
195 18 U.S.C. § 2511(3) (1970), repealed by Foreign Intelligence Surveillance Act of
1978, Pub. L. No. 95-511, § 201(c), 92 Stat. 1783, 1797.
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1012 CORNELL LAW REVIEW [Vol. 99:981

In its review of Title III in United States v. U.S. District Court (Keith),
the Supreme Court held that warrantless domestic wiretapping was
unconstitutional even when done for national security purposes.196
The Keith Court did acknowledge that the focus of intelligence surveil-
lance “may be less precise than that directed against more conven-
tional types of crime.”197 Moreover, different standards “may be
compatible with the Fourth Amendment if they are reasonable both
in relation to the legitimate need of Government for intelligence in-
formation and the protected rights of our citizens.”198 Although the
Court denied that it was attempting “to guide the congressional judg-
ment” in this area, it offered some direction for subsequent legisla-
tion, in which a showing of probable cause could be different than in
traditional criminal investigations, the time and reporting require-
ments may be less strict, and, “in sensitive cases,” applications for prior
judicial authorization might be made to “a specially designated
court.”199
Around the same time, media exposés and congressional investi-
gations revealed a troubling history of executive branch abuses for the
sake of national security.200 Much of this came to light in the mid-
1970s through the reports of the so-called “Church Committee,” a
U.S. Senate committee tasked with scrutinizing the exploits of Ameri-
can intelligence agencies.201 The Church Committee found that
“[i]ntelligence agencies pursued a ‘vacuum cleaner’ approach to in-

196 407 U.S. 297, 308–22 (1972).

197 Id. at 322.
198 Id. at 322–23. Subsequent to Keith, some lower court decisions concluded that
there was a constitutional exception for surveillance undertaken for foreign intelligence or
national security purposes. See, e.g., United States v. Truong Dinh Hung, 629 F.2d 908,
913–15 (4th Cir. 1980) (finding a foreign intelligence exception to the Fourth Amend-
ment). But see, e.g., Zweibon v. Mitchell, 516 F.2d 594, 651, 654 (D.C. Cir. 1975) (expres-
sing doubt that such an exception should be created).
199 Keith, 407 U.S. at 323.
200 Going back as far as the 1930s, “intelligence excesses, at home and abroad, have
been found in every administration,” many of which collaborated with intelligence agen-
cies in “substantial wrongdoing.” SELECT COMM. TO STUDY GOVERNMENTAL OPERATIONS
WITH RESPECT TO INTELLIGENCE ACTIVITIES, INTELLIGENCE ACTIVITIES AND THE RIGHTS OF
AMERICANS, BOOK II, S. REP. NO. 94-755, at v, viii, 9–10 (1976) [hereinafter CHURCH COM-
MITTEE BOOK II]; see also Christopher Pyle, CONUS Intelligence: The Army Watches Civilian
Politics, WASH. MONTHLY, Jan. 1970, at 4 (revealing U.S. military’s domestic spying
program).
201 Officially titled the “Select Committee to Study Governmental Operations with Re-
spect to Intelligence Activities,” the Church Committee issued a series of reports accompa-
nied by volumes of documents and hearings. See, e.g., SELECT COMMITTEE TO STUDY
GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES (“CHURCH COMMIT-
TEE”), http://www.intelligence.senate.gov/churchcommittee.html (last visited Mar. 24,
2014) (providing much of the materials). Several other bodies also investigated allegations
of surveillance abuses. See, e.g., RICHARD A. BEST, JR., CONG. RESEARCH SERV., RL32500,
PROPOSALS FOR INTELLIGENCE REORGANIZATION, 1949–2004, at 19–25 (2004) (describing
investigations).
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telligence collection—drawing in all available information about

groups and individuals, including their lawful political activity and de-
tails of their personal lives.”202 As a result, “[t]oo many people have
been spied upon by too many Government agencies and [too] much
information has been collected,” with secret surveillance often under-
taken against citizens who “posed no threat of violence or illegal acts
on behalf of a hostile foreign power.”203 The Committee’s chair and
namesake, Senator Frank Church, offered these prophetic words:
In the need to develop a capacity to know what potential enemies
are doing, the United States government has perfected a technolog-
ical capability that enables us to monitor the messages that go
through the air. . . . Now that is necessary and important to the
United States as we look abroad at enemies or potential enemies.
We must know, at the same time, that capability at any time could
be turned around on the American people, and no American would
have any privacy left such is the capability to monitor everything—
telephone conversations, telegrams, it doesn’t matter. There would
be no place to hide.204
A few years later, Congress enacted the Foreign Intelligence Sur-
veillance Act (FISA)205 “in large measure [as] a response to the revela-
tions that warrantless electronic surveillance in the name of national
security has been seriously abused.”206 FISA was intended “to provide
legislative authorization and regulation for all electronic surveillance
conducted within the United States for foreign intelligence pur-
poses.”207 Relying upon the framework offered in Keith,208 the 1978
law created the Foreign Intelligence Surveillance Court (FISC), a spe-
cial spy court that meets in secret proceedings and is empowered to
issue ex parte orders authorizing electronic surveillance to gather for-
eign intelligence.209 The denial of an order is subject to review by a

202 CHURCH COMMITTEE BOOK II, supra note 200, at 165, 178. For instance, the NSA R
obtained copies of almost all telegrams to or from the United States, involving the private
communications of millions of U.S. citizens, in what was at that time “the largest govern-
mental interception program affecting Americans ever undertaken.” SELECT COMM. TO
STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES, SUPPLEMEN-
TARY DETAILED STAFF REPORTS ON INTELLIGENCE ACTIVITIES AND THE RIGHTS OF AMERICANS,
BOOK III, S. REP. NO. 94-755, at 765 (1976).
203 CHURCH COMMITTEE BOOK II, supra note 200, at 5. R
204 Meet the Press (NBC television broadcast Aug. 17, 1975) (comments of Sen.
Church), available at http://www.youtube.com/watch?v=9DjJKYYb5-4.
205 Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783
(codified at 50 U.S.C. §§ 1801–1885c (2006 & Supp. V 2011)).
206 S. REP. NO. 95-604, at 7 (1977).
207 S. REP. NO. 95-701, at 9 (1978).
208 See id. at 11, 15–16 (discussing Keith).
209 See 50 U.S.C. § 1803(a), (c) (2006 & Supp. V 2011). A subsequent amendment
extended that authority to issuing court orders to conduct physical searches for foreign
intelligence purposes. See Intelligence Authorization Act for Fiscal Year 1995, Pub. L. No.
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1014 CORNELL LAW REVIEW [Vol. 99:981

special appellate tribunal, the Foreign Intelligence Surveillance Court

of Review (FISCR).210
In theory, a court order is required for foreign intelligence sur-
veillance whenever there is a substantial likelihood that the eavesdrop-
ping will acquire communications involving a “United States
person,”211 which means an American citizen, an alien lawfully admit-
ted for permanent U.S. residence, an association composed of a sub-
stantial number of American citizens and lawful aliens, or an
American corporation.212 To issue an order for electronic surveil-
lance, a FISC judge must find “probable cause” to believe that the
target of the surveillance is a foreign power or its agent,213 which in-
cludes not only foreign governments and factions, but also individuals
and groups engaged in international terrorism and even “a foreign-
based political organization, not substantially composed of United
States persons.”214 In addition, the FISC judge must sign off on pro-
posed minimization procedures, which are “specific proce-
dures . . . that are reasonably designed . . . to minimize the acquisition
and retention, and prohibit the dissemination, of nonpublicly availa-
ble information concerning unconsenting United States persons.”215
The judge is tasked with some clerical work as well, ensuring that the
application contains the necessary certifications and statements

103-359, § 807, 108 Stat. 3423, 3443 (1994) (codified at 50 U.S.C. §§ 1821–1824 (2006 &
Supp. V 2011)).
210 See 50 U.S.C. § 1803(b). If the FISCR upholds the denial of an order, the U.S.
Supreme Court may hear the case by writ of certiorari. The FISCR is composed of three
judges. The FISC is composed of eleven judges drawn from at least seven of the twelve
judicial circuits. At least three of the FISC judges must reside within twenty miles of the
District of Columbia. The Chief Justice of the U.S. Supreme Court designates district court
judges to serve on the FISC, as well as appellate or district court judges to serve on the
FISCR. See id. § 1803(a)(1), (b). The judges on both courts serve seven-year, staggered
terms, and they may only serve once on either the FISC or FISCR. See id. § 1803(d).
211 See id. § 1802(a)(1)(B). But see infra notes 281–82 and accompanying text (discuss- R
ing inevitable interception of communications by U.S. persons).
212 50 U.S.C. § 1801(i) (2006 & Supp. V 2011).
213 Id. § 1805(a)(2) (2006 & Supp. V 2011). This is different from probable cause in
the traditional sense, that is, reasonable grounds to believe that a crime has been or is
about to be committed, and evidence of that crime will be obtained by the proposed
search. See, e.g., Brinegar v. United States, 338 U.S. 160, 175–76 (1949) (providing classic
formulation of probable cause). Nonetheless, the courts found that FISA’s “requirements
provide an appropriate balance between the individual’s interest in privacy and the govern-
ment’s need to obtain foreign intelligence information, and that FISA does not violate the
probable cause requirement of the Fourth Amendment.” United States v. Duggan, 743
F.2d 59, 74 (2d Cir. 1984).
214 50 U.S.C. § 1801(a)–(b). Subject to certain requirements, the Attorney General
may authorize foreign intelligence surveillance in an emergency situation without a court
order. See id. § 1805(e).
215 Id. § 1801(h)(1); see, e.g., In re All Matters Submitted to the Foreign Intelligence
Surveillance Court, 218 F. Supp. 2d 611, 617–18 (Foreign Intelligence Surveillance Ct.
2002) (describing some of the minimization procedures).
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regarding the proposed surveillance.216 Unlike wiretaps under Title

III,217 however, the target of a FISA order does not have to be notified
of the surveillance.
The statutory scheme would undergo just a few modifications
during the first two decades of its existence. In 1998, Congress
amended the law to allow FISC judges to issue orders authorizing the
use of pen registers and trap and trace devices for facilities used by
foreign agents or those engaged in international terrorism or clandes-
tine intelligence activities.218 The amendment also allowed for orders
requiring the production of some business records (e.g., car rental,
hotel, and storage facility records),219 upon a showing by the govern-
ment that “there are specific and articulable facts giving reason to be-
lieve that the person to whom the records pertain is a foreign power
or an agent of a foreign power.”220 Nonetheless, the basic approach
of FISA remained the same through the turn of the millennium.
Among other things, this scheme fostered a split among government
agencies and their activities along two axes: law enforcement versus
intelligence gathering and domestic surveillance versus foreign
surveillance.
As originally enacted, FISA required the government to demon-
strate that “the purpose of the surveillance is to obtain foreign intelli-
gence information.”221 Federal court opinions interpreted this
provision as insisting that the primary purpose of FISA surveillance be
the collection of foreign intelligence information and not the investi-

216 50 U.S.C. § 1805(a)(4). The Attorney General must approve each application
“based upon his finding that it satisfies the criteria and requirements” of FISA. Id.
§ 1804(a) (2006 & Supp. V 2011). Among other things, the application must include a
certification by the National Security Advisor (or another high-ranking official designated
by the President) that the information sought is foreign intelligence information, that the
purpose of the surveillance is to gather such information, and that this information cannot
reasonably be obtained by normal investigative techniques. Id. § 1804(a)(6). The term
“[f]oreign intelligence information” means information relating to “the ability of the
United States to protect against” hostile actions of a foreign power or agent of a foreign
power, including actual or potential attacks, clandestine intelligence activities, sabotage,
and international terrorism. Id. § 1801(e). When the target is a United States person, the
FISC judge must determine that the certifications are not clearly erroneous based on the
statements provided. Id. § 1805(a)(4). A similar process applies to applications for FISA
orders to conduct physical searches. Id. § 1824.
217 See id. § 1803(c) (2006 & Supp. V 2011).
218 See Intelligence Authorization Act for Fiscal Year 1999, Pub. L. 105-272, § 601, 112
Stat. 2396, 2404 (1998) (codified as amended at 50 U.S.C. §§ 1841–1846 (2006 & Supp. V
2011)).
219 See id.
220 50 U.S.C. § 1862(b)(2)(B) (2000).
221 See 18 U.S.C. § 2516(8)(d) (2012) (requiring that the target be notified of the sur-
veillance within ninety days of the wiretap’s termination).
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1016 CORNELL LAW REVIEW [Vol. 99:981

gation of criminal activity.222 To comply with this standard, the Justice

Department erected a “wall” between criminal investigations and for-
eign intelligence surveillance. Although the exact timing of its crea-
tion remains “shrouded in historical mist,” the wall came to be
understood as restricting the ability of law enforcement agents and
intelligence officials to share information.223 The wall complemented
the separation between domestic and foreign surveillance, with statu-
tory law and executive orders divvying up responsibilities between the
FBI, CIA, and military intelligence agencies such as the NSA.224
Ostensibly urging “full and free exchange of information,”225 the legal
and practical arrangement perpetuated a “foreign-domestic divide”
that at times discouraged cooperation and information sharing
among agencies.226
Both the wall and the foreign-domestic divide could be seen as
protecting civil liberties and preventing the type of abuses uncovered
by the Church Committee. But in the wake of the attacks of Septem-
ber 11, 2001, these constraints (or at least the perception thereof)227
were among the culprits fingered for missed opportunities to foil the
terrorist plot. Apparently, “handoffs of information were lost across
the divide separating the foreign and domestic agencies of govern-
ment,”228 and “beliefs about what the wall required” inhibited the flow
of information about the conspiracy and prevented the participation

222 See United States v. Johnson, 952 F.2d 565, 572 (1st Cir. 1991); United States v.
Pelton, 835 F.2d 1067, 1076 (4th Cir. 1987); United States v. Badia, 827 F.2d 1458, 1464
(11th Cir. 1987); United States v. Duggan, 743 F.2d 59, 77–78 (2d Cir. 1984).
223 In re Sealed Case, 310 F.3d 717, 727–28 (Foreign Intelligence Surveillance Ct. Rev.
2002). See generally Diane C. Piette & Jesselyn Radack, Piercing the “Historical Mists”: The
People and Events Behind the Passage of FISA and the Creation of the “Wall,” 17 STAN. L. & POL’Y
REV. 437 (2006).
224 Since its establishment, the CIA was tasked with collecting intelligence outside of
the United States but was given “no police, subpoena, or law enforcement powers or inter-
nal security functions.” National Security Act of 1947, § 102(d), Pub. L. No. 80-253 (codi-
fied at 50 U.S.C. § 3036). In turn, the FBI was responsible for domestic surveillance,
including gathering foreign intelligence within the United States. Various agencies within
the Department of Defense were concerned with military-related intelligence both at home
and abroad; for instance, the NSA collected and processed signals intelligence, a term that
includes all forms of communication using the electromagnetic spectrum. In December
1981, President Reagan formalized the division by issuing an executive order that, among
other things, barred the CIA and military intelligence agencies from engaging in domestic
electronic surveillance unless coordinated with the FBI. See Exec. Order No. 12,333, 46
Fed. Reg. 59,941 (Dec. 4, 1981).
225 Exec. Order No. 12,333, pt. 1.1, 46 Fed. Reg. 59,941 (Dec. 4, 1981).
226 See, e.g., NAT’L COMM’N ON TERRORIST ATTACKS UPON THE U.S., THE 9/11 COMMIS-
SION REPORT, at xvi, 80, 263–65, 353–57, 399–406, 409 (2004) [hereinafter 9/11 COMMIS-
SION REPORT] (describing and critiquing the foreign-domestic divide).
227 See, e.g., Sealed Case, 310 F.3d at 723–27 (concluding that “primary purpose” re-
quirement was not mandated by FISA itself); 9/11 COMMISSION REPORT, supra note 224, at
78–80, 270–72 (describing misinterpretation of wall requirements).
228 9/11 COMMISSION REPORT, supra note 226, at 353. R
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of criminal investigators in a search for two of the hijackers.229 Six

weeks after 9/11, Congress enacted the USA PATRIOT Act (Patriot
Act)230—a wide-ranging compendium of provisions, many of which
had been proposed and debated in previous years but were repack-
aged after the attacks as tools to prevent terrorism.231
The legislation tore down the wall by amending FISA to state that
acquisition of foreign intelligence information need only be a signifi-
cant purpose, rather than the primary purpose, of the surveillance.232
In addition, the Patriot Act explicitly permits information sharing
among law enforcement and intelligence gathering offices.233 In-
deed, one provision and a subsequent directive seemed to demand
the expeditious flow of information between law enforcement and in-
telligence agencies.234 Several cases—including the first ever appeal
to the FISCR—upheld the change to FISA’s search and surveillance
provisions.235 A short-lived district court decision, however, expressed
the concerns of many who opposed the makeover: “Now, for the first
time in our Nation’s history, the government can conduct surveillance
to gather evidence for use in a criminal case without a traditional war-
rant,” thereby “allowing the Executive Branch to bypass the Fourth
Amendment.”236

229 OFFICE OF THE INSPECTOR GEN., U.S. DEP’T OF JUSTICE, A REVIEW OF THE FBI’S HAN-
DLING OF INTELLIGENCE INFORMATION RELATED TO THE SEPTEMBER 11 ATTACKS 21–22 (2004).
230 See Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act (Patriot Act) of 2001, Pub. L. No. 107-56, 115 Stat.
272 (codified as amended in scattered sections of the U.S. Code).
231 See, e.g., Administration’s Draft Anti-Terrorism Act of 2001: Hearing Before the H. Comm.
on the Judiciary, 107th Cong. 57–59 (2001) (comments of Rep. Bob Barr).
232 See Patriot Act § 218 (codified at 50 U.S.C. §§ 1804(a)(6)(B), 1823(a)(6)(B) (2006
& Supp. V 2011)).
233 One provision allows the disclosure of foreign intelligence and counterintelligence
information uncovered during the course of criminal investigations—including informa-
tion obtained by grand juries and Title III surveillance—to “any Federal law enforcement,
intelligence, protective, immigration, national defense, or national security official.” Id.
§ 203 (codified at FED. R. CRIM. P. 6(e)(3) and 18 U.S.C. § 2517(6) (2012)). Another
provision permits federal officials conducting foreign intelligence surveillance to consult
with law enforcement officers to coordinate efforts to investigate or protect against actual
or potential attacks, sabotage, international terrorism, and clandestine intelligence activi-
ties by foreign powers or their agents. Id. § 504 (codified at 50 U.S.C. §§ 1806(k), 1825(k)
(2006 & Supp. V 2011)).
234 See id. § 905 (codified at 50 U.S.C. § 403-5b(a)(1) (2006 & Supp. V 2011)); Memo-
randum from John Ashcroft, U.S. Att’y Gen., to FBI Director et al., Intelligence Sharing
Procedures for Foreign Intelligence and Foreign Counterintelligence Investigations Con-
ducted by the FBI (Mar. 6, 2002), available at http://www.fas.org/irp/agency/doj/fisa/
ag030602.html.
235 See, e.g., In re Sealed Cases, 310 F.3d 717, 736–46 (Foreign Intelligence Surveillance
Ct. Rev. 2002) (upholding amendments); United States v. Abu-Jihaad, 630 F.3d 102, 120
(2d Cir. 2010) (collecting cases).
236 Mayfield v. United States, 504 F. Supp. 2d 1023, 1036–37 (D. Or. 2007), rev’d on
other grounds, 599 F.3d 964 (9th Cir. 2010).
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1018 CORNELL LAW REVIEW [Vol. 99:981

As for pen registers and trap and trace devices237—which some-

times work in combination and are referred to as PR/TT devices—the
Patriot Act dispensed with the previous requirement that a targeted
facility be used by foreign agents or by individuals involved in interna-
tional terrorism or clandestine intelligence activities. Instead, the gov-
ernment needs only show that the information sought is foreign
intelligence not regarding a U.S. person or that it is “relevant to an
ongoing investigation to protect against international terrorism or
clandestine intelligence activities.”238 While a PR/TT order used to
be limited to the jurisdiction of the issuing court, now a single order
can be executed nationwide.239 The scope of such orders was also
expanded to include the collection of metadata for electronic com-
munications (e.g., e-mail).240 In hindsight, the absence of individual-
ized suspicion, elimination of jurisdictional limitations, and inclusion
of electronic communications made the PR/TT provision a potential
vehicle for mass surveillance. But at the time, these changes were de-
picted as merely streamlining the process and updating the law consis-
tent with technological changes.241
Another provision of the Patriot Act, section 215, permits the FBI
Director or his designee to request production of “any tangible things
(including books, records, papers, documents, and other items) for
an investigation to obtain foreign intelligence information not con-
cerning a United States person or to protect against international ter-
rorism or clandestine intelligence activities.”242 Dubbed the “library
section” because of concerns that a library might be required to give
up records about its patrons,243 section 215 was challenged in court as
violating search-and-seizure doctrine as well as speech and associa-
tional rights.244 In 2006, Congress amended the provision to address

237 See supra note 175 (defining both terms). R

238 Patriot Act § 214, 50 U.S.C. § 1842(a)(1), (c)(2) (requiring only a nexus with “an
ongoing investigation to protect against international terrorism or clandestine intelligence
activities”).
239 See id. § 216 (codified at 18 U.S.C. §§ 3121(b)(1)(C), 3127(2)).
240 See id. (codified at 18 U.S.C. §§ 3121, 3123).
241 See CHARLES DOYLE, CONG. RESEARCH SERV., RL31200, TERRORISM: SECTION BY SEC-
TION ANALYSIS OF THE USA PATRIOT ACT 10–13 (2001) (describing investigations).
242 See Patriot Act § 215, 50 U.S.C. § 1861 (2006 & Supp. V 2011). The Patriot Act also
expanded the scope of “national security letters” (NSL), which are roughly analogous to
administrative subpoenas by allowing federal law enforcement to gather records from third
parties without court authorization. See id. § 505 (codified at 12 U.S.C. § 3414(a)(5)(A),
15 U.S.C. § 1681u, 18 U.S.C. § 2709(b)); see also CHARLES DOYLE, CONG. RESEARCH SERV.,
R41619, NATIONAL SECURITY LETTERS: PROPOSALS IN THE 112TH CONGRESS 2–11 (2011)
(providing background and problems of NSLs).
243 See, e.g., The PATRIOT Act, AM. LIBRARY ASSOC., http://www.ala.org/advocacy/adv
leg/federallegislation/theusapatriotact (last visited Feb. 15, 2014).
244 See Muslim Cmty. Ass’n v. Ashcroft, 459 F. Supp. 2d 592 (E.D. Mich. 2006).
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some of these concerns.245 Among other things, the government was

now required to provide “reasonable grounds to believe that the tangi-
ble things sought are relevant to an authorized investigation,”246 with
the tangible things limited to those items otherwise obtainable by
subpoena or court order.247 The changes to section 215 were suffi-
cient to persuade litigants to drop their lawsuit.248 What many failed
to foresee was that this provision, ostensibly geared toward the collec-
tion of a narrow range of preexisting business records, might be inter-
preted to justify government snooping on a far larger scale.

C. Mass Surveillance
In October 2001, President Bush secretly authorized the NSA to
conduct warrantless eavesdropping on international communications
and to engage in bulk collection of metadata on telephone and
Internet communications.249 In 2004, in response to a near revolt by
high-ranking Justice Department and FBI officials,250 the bulk collec-
tion of Internet metadata was transitioned from a warrantless program
to one requiring FISC authorization.
To achieve this feat, the government made the remarkable claim
that FISA’s pen register/trap and trace (PR/TT) provisions could be
used to collect the metadata for e-mail communications by millions of

245 See USA PATRIOT Improvement Reauthorization Act of 2005, Pub. L. No. 109-177,
§ 106, 120 Stat. 192 (2006).
246 See 50 U.S.C. § 1861(b)(2)(A). The items sought would be presumptively relevant
to an investigation if the government shows that they pertain to a foreign power or its
agents. See id.
247 See id. § 1861(a)(3), (g). High-level FBI approval is also required for book sales
records, book customer lists, firearms sales records, tax return records, educational
records, and medical records. See id. § 1861(a)(3). In addition, the amendments de-
manded the adoption of minimization procedures for the retention and dissemination of
information; required approval at the national level of the FBI when demanding records
that raise certain constitutional sensitivities, including information from libraries; and al-
lowed recipients to disclose the order to an attorney for purposes of legal advice and to
seek judicial review of an order in the FISC. See id. § 1861(c)(2)(D), (d)(1), (f). Although
the production order may be challenged immediately, the recipient must wait a year
before seeking review of a nondisclosure order. See id. § 1861(f)(2)(A)(i). Moreover, a
FISC judge must treat a high-level certification, made in good faith, as conclusive “that
disclosure may endanger the national security of the United States or interfere with diplo-
matic relations.” Id. § 1861(f)(2)(C)(ii).
248 See Citing Improvements to Law, ACLU Withdraws Section 215 Case but Vows to Fight
Individual Orders, AM. C.L. UNION (Oct. 27, 2006), http://www.aclu.org/national-security/
citing-improvements-law-aclu-withdraws-section-215-case-vows-fight-individual-orde (last vis-
ited Feb. 15, 2014).
249 DNI Announces the Declassification of the Existence of Collection Activities Authorized by
President George W. Bush Shortly After the Attacks of September 11, 2001, IC ON THE RECORD (Dec.
21, 2013) [hereinafter DNI Announces], http://icontherecord.tumblr.com/post/70683717
031/dni-announces-the-declassification-of-the.
250 See, e.g., OFFICES OF THE INSPECTORS GEN., U.S. DEP’T OF DEFENSE ET AL., UNCLASSI-
FIED REPORT ON THE PRESIDENT’S SURVEILLANCE PROGRAM 21–27 (2009) [hereinafter OIG
Report] (describing incidents); Gellman, supra note 4 (same). R
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people—and, remarkably, the FISC accepted the argument, despite

acknowledging that the “raw volume of the proposed collection is
enormous” and this “novel use of statutory authorities” allows “a much
broader type of collection” than any previous application.251 None-
theless, the court found that the collection of metadata did not impli-
cate the Fourth Amendment,252 relying upon the aforementioned
third-party exception253 and, in particular, the Supreme Court’s 1979
decision in Smith v. Maryland.254 Along the way, the FISC adopted an
extraordinarily broad interpretation of the statutory requirement that
any information sought be “relevant to an ongoing investigation.”255
Neither the initial warrantless bulk collection of Internet
metadata nor the rebranding of the program as a FISC-approved pro-
gram would be disclosed until 2013.256 But beginning in late 2005,
news articles revealed that the government was intercepting interna-
tional communications and gathering telephony metadata in bulk, all
without a warrant or court order.257 The Bush Administration’s at-
tempts to assuage public anxiety258 and to blunt legal criticisms were
not completely successful,259 and as a result, the government began

251 Opinion and Order at 1–2, 23, 39, 58, [redacted], No. PR/TT [redacted] (Foreign
Intelligence Surveillance Ct. [redacted]) [hereinafter Kollar-Kotelly Opinion], available at
http://www.dni.gov/files/documents/1118/CLEANEDPRTT%201.pdf.
252 See id. at 58–66.
253 See supra Part III.A.
254 442 U.S. 735 (1979); Kollar-Kotelly Opinion, supra note 251, at 59–62.
255 50 U.S.C. § 1842(a)(1),(c)(2) (2006 & Supp. V 2011); see Kollar-Kotelly Opinion,
supra note 251, at 48–49. The court ignored obvious signs that the PR/TT scheme was R
aimed at “the micro scale, not the macro scale.” Orin Kerr, Problems with the FISC’s Newly-
Declassified Opinion on Bulk Collection of Internet Metadata, LAWFARE (Nov. 19, 2013, 2:35 AM),
http://www.lawfareblog.com/2013/11/problems-with-the-fiscs-newly-declassified-opinion-
on-bulk-collection-of-internet-metadata/. It also failed to appreciate the critical differ-
ences between the Internet transactional data at issue in the NSA program and the type of
phone call data involved in Smith. Julian Sanchez, Are Internet Backbone Pen Registers Constitu-
tional?, JUST SECURITY (Sept. 23, 2013, 7:55 PM), http://justsecurity.org/2013/09/23/inter
net-backbone-pen-registers-constitutional/.
256 See supra note 4 and accompanying text. R
257 See Leslie Cauley, NSA Has Massive Database of Americans’ Phone Calls, USA TODAY,
May 11, 2006, at A1 (phone call records); James Risen & Eric Lichtblau, Bush Lets U.S. Spy
on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at A1 (eavesdropping).
258 See, e.g., GEORGE W. BUSH, REMARKS ON THE TERRORIST SURVEILLANCE PROGRAM
(2006); 1 PUBLIC PAPERS OF THE PRESIDENTS OF THE UNITED STATES: GEORGE W. BUSH 917
(2006) (“We’re not mining or trolling through the personal lives of millions of innocent
Americans. Our efforts are focused on links to al Qaida and their known affiliates.”).
259 Compare U.S. DEP’T OF JUSTICE, LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF
THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT (2006), available at http://
www.justice.gov/opa/whitepaperonnsalegalauthorities.pdf (Justice Department
whitepaper providing some of the underlying reasoning for the NSA’s activities), and Let-
ter from William E. Moschella, Assistant Att’y Gen., to Pat Roberts, Chairman, Senate Se-
lect Comm. on Intelligence et al. (Dec. 22, 2005), available at http://www.justice.gov/ag/
readingroom/surveillance6.pdf (similar arguments offered in letter from Assistant Attor-
ney General), with Letter from Curtis A. Bradley et al., to Congressional Leadership (Feb.
2, 2006), reprinted at 81 IND. L.J. 1415 (2006) (critiquing Justice Department white paper),
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exploring means of obtaining FISC authorization for these programs

too.260
In May 2006, the government invoked Patriot Act section 215 as
the vehicle for the NSA’s bulk collection of phone call records.261
Once again, the court approved the government’s application for
mass surveillance, although the order was not accompanied by any
sort of legal reasoning.262 Apparently,263 it was only after the program
was revealed in 2013 that the FISC issued an opinion attempting to
justify the collection of “a very large volume of each [telephone] com-
pany’s call detail records or telephony metadata.”264 Among other
things, the court drew upon the earlier PR/TT opinion’s assessment
of the standard of proof, finding relevance to be a broad concept that
“amounts to a relatively low standard.”265 The court also claimed that
the FISC’s standing interpretation of section 215 was bolstered by the
doctrine of legislative reenactment266 because Congress reauthorized
section 215 only after the House and Senate Intelligence Committees
had received a report on the government’s bulk collection programs
describing the nature and scope of the FISC’s approval.267 As for the
program’s constitutionality, the NSA’s program was “squarely con-

and Letter from Curtis A. Bradley et al., to Congressional Leadership (Jan. 9, 2006), re-
printed at 81 IND. L.J. 1364 (2006) (critiquing Moschella letter).
260 See DNI Announces, supra note 249 (noting the transitioning of both programs to the R
FISC).
261 See Memorandum of Law in Support of Application for Certain Tangible Things for
Investigations to Protect Against International Terrorism, In re FBI for an Order Requiring
the Production of Tangible Things from [redacted], No. BR 06-05, at 2 (Foreign Intelli-
gence Surveillance Ct. May 23, 2006), available at https://www.eff.org/document/br-06-05-
memo-law.
262 See Order, In re FBI for an Order Requiring the Production of Tangible Things
from [redacted], No. BR 06-05, at 2 (Foreign Intelligence Surveillance Ct. May 24, 2006),
available at http://www.dni.gov/files/documents/section/pub_May%2024%202006%20
Order%20from%20FISC.pdf.
263 See, e.g., Ellen Nakashima, FISA Court Releases Ruling Upholding Phone Program, WASH.
POST, Sept. 18, 2013, at A4 (quoting ACLU’s Jameel Jaffer, who described the opinion as “a
document that appears to have been cobbled together over the last few weeks in an effort
to justify a decision that was made seven years ago”).
264 In re FBI for an Order Requiring Production of Tangible Things from [redacted],
No. BR 13-109, 2013 WL 5741573, at *1 (Foreign Intelligence Surveillance Ct. Aug. 29,
2013) [hereinafter Eagan Opinion].
265 Id. at *6.
266 Also known as legislative ratification, the doctrine presumes the legislature appreci-
ates and adopts a judicial or administrative interpretation of a statute that lawmakers subse-
quently reenact without change. See Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239–40
(2009); Lorillard v. Pons, 434 U.S. 575, 580 (1978).
267 See Eagan Opinion, supra note 264, at *8–9 (discussing legislative reenactment in R
the context of section 215); PATRIOT Sunsets Extension Act of 2011, Pub. L. No. 112-14,
125 Stat. 216 (codified in scattered sections of 50 U.S.C.) (reauthorizing section 215).
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1022 CORNELL LAW REVIEW [Vol. 99:981

trolled” by Smith, which “compels the conclusion that there is no

Fourth Amendment impediment to the collection.”268
Like the FISC’s PR/TT opinion, the section 215 opinion would
not come to light until 2013.269 By contrast, the transition of the
NSA’s eavesdropping program was overt270 and eventually addressed

268 Id. at *2–3. Like the PR/TT opinion, the FISC’s section 215 opinion leaves much
to be desired. “Congress intended [section 215] to allow the intelligence communities to
access targeted information for specific investigations,” said Representative Jim Sensen-
brenner, one of the sponsors of the Patriot Act. “How can every call that every American
makes or receives be relevant to a specific investigation?” Jim Sensenbrenner, This Abuse of
the Patriot Act Must End, THE GUARDIAN (June 9, 2013, 7:00 AM), http://www.theguardian.
com/commentisfree/2013/jun/09/abuse-patriot-act-must-end. He later wrote in a letter
to Attorney General Eric Holder, “The administration’s interpretation to allow for bulk
collection is at odds with Congressional intent and with both the plain and legal meanings
of ‘relevance.’” Letter from F. James Sensenbrenner Jr., Rep., to Eric Holder, U.S. Att’y
Gen. (Sept. 6, 2013), available at http://sensenbrenner.house.gov/uploadedfiles/sensen
brenner_letter_to_attorney_general_eric_holder.pdf. As for reliance on the doctrine of
legislative reenactment, Sensenbrenner and other members of Congress have said they
were not briefed on the expansive interpretation of section 215. See, e.g., Jim Sensenbren-
ner, How Obama Has Abused the Patriot Act, L.A. TIMES (Aug. 19, 2013), http://articles.
latimes.com/2013/aug/19/opinion/la-oe-sensenbrenner-data-patriot-act-obama-20130819
(“As I have said numerous times, I did not know the administration was using the Patriot
Act for bulk collection, and neither did a majority of my colleagues.”). But see ACLU v.
Clapper, 959 F. Supp. 2d 724, 745 n.13 (S.D.N.Y. 2013) (questioning Rep. Sensenbrenner’s
claim of ignorance). In addition, the FISC’s opinion failed to grapple with the disparity
between the limited information gleaned by the now-archaic pen register in Smith versus
the far richer telephony metadata gathered by the NSA. Jennifer Granick, Debate: Metadata
and the Fourth Amendment, JUST SECURITY (Sept. 23, 2013, 2:00 PM), http://justsecurity.org/
2013/09/23/metadata-fourth-amendment/. Perhaps the most troubling lapse in the opin-
ion, however, was the absence of any mention, let alone discussion, of the Supreme Court’s
groundbreaking 2012 decision on high-tech surveillance and the Fourth Amendment,
United States v. Jones, 132 S. Ct. 945 (2012). See supra notes 182–90 and accompanying text R
(discussing Jones).
269 But there were some warning signs. For instance, a few lawmakers spoke out about
secret constructions of surveillance authority. “I want to deliver a warning this afternoon,”
said Senator Ron Wyden during a 2011 floor debate. “When the American people find out
how their government has secretly interpreted the Patriot Act, they will be stunned and
they will be angry.” Charlie Savage, Senators Say Patriot Act Is Being Misinterpreted, N.Y. TIMES,
May 27, 2011, at A17 (quoting Sen. Ron Wyden); see also Letter from Ron Wyden & Mark
Udall, Sens., to Eric Holder, U.S. Att’y Gen. (Sept. 21, 2011), available at https://
s3.amazonaws.com/s3.documentcloud.org/documents/250829/wyden-udall-letter-to-
holder-on-wiretapping.pdf (expressing concerns that “Justice Department officials have—
on a number of occasions—made what we believe are misleading statements pertaining to
the government’s interpretation of surveillance law,” and warning that “Americans will
eventually and inevitably come to learn about the gap that currently exists between the
public’s understanding of government surveillance authorities and the official, classified
interpretation of these authorities”). Around this time, one could discern a sizeable in-
crease in the use of section 215. See Ellen Nakashima, FBI Heads to Court More Often to
Obtain Data on Personal Internet Usage, WASH. POST, Oct. 26, 2011, at A6 (detailing increase
in business record requests); Foreign Intelligence Surveillance Act Court Orders 1979–2012,
EPIC, http://epic.org/privacy/wiretap/stats/fisa_stats.html (last updated May 4, 2012)
(listing by year number of FISA applications for business records).
270 See Department of Justice Oversight: Hearings Before the S. Comm. on the Judiciary, 110th
Cong. 6–7 (2007) (statement of Alberto Gonzales, U.S. Att’y Gen.) (noting that FISC had
approved electronic surveillance).
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specifically by statute.271 Pursuant to section 702 of the FISA Amend-

ments Act of 2008 (FAA), the government is allowed to intercept the
communications of non-U.S. persons reasonably believed to be
outside of the United States.272 The government need not identify
any particular target or facility to be monitored, nor does it have to
provide probable cause to believe that the surveillance target is a for-
eign power (or its agent) that will use the facility to be monitored.273
Instead, FISC approval occurs at a programmatic level—reviewing
proposed procedures and official certifications274—with an order au-
thorizing mass government surveillance. For instance, an order
“could authorize the acquisition of all communications to and from
specific geographic areas of foreign policy interest.”275
FAA section 702 was challenged by a group of individuals and
organizations whose communications were likely targets of NSA sur-
veillance,276 arguing that the provision “allows the executive branch
sweeping and virtually unregulated authority to monitor the inter-
national communications . . . of law-abiding U.S. citizens and resi-
dents.”277 In its 2013 decision in Clapper v. Amnesty International, the
Supreme Court held that the plaintiffs had failed to show a realistic
threat of imminent injury and therefore lacked standing to challenge
the law.278 In dissent, Justice Stephen Breyer pointed out that the gov-
ernment had the means and motive to conduct such surveillance, with
prior behavior providing every reason to believe it would occur.279 To
find standing, Justice Breyer concluded, “we need only assume that

271 For a half year, the surveillance program was governed by the Protect America Act
(PAA) of 2007, Pub. L. No. 110-55, 121 Stat. 552 (2007). Although short-lived, it was the
subject of the second opinion ever issued by the FISCR. See In re Directives [redacted] Pur-
suant to Section 105B of Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1011 (For-
eign Intelligence Surveillance Ct. Rev. 2008). The PAA was replaced by the FISA
Amendments Act (FAA) of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (2008).
272 50 U.S.C. § 1881a (2006 & Supp. V 2011).
273 See, e.g., Amnesty Int’l USA v. Clapper, 638 F.3d 118, 124 (2d Cir. 2011) (describing
differences between section 702 and approach under preexisting FISA scheme), rev’d, 133
S. Ct. 1138 (2013).
274 See 50 U.S.C. § 1881a(a), (c)(1), (i)(2), (i)(3).
275 Brief for Respondents at 11, Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013)
(No. 11-1025); see also Amnesty Int’l USA, 638 F.3d at 126 (listing Russia, Venezuela, and
Israel as potential areas of foreign policy interest).
276 Clapper, 133 S. Ct. at 1145–56. Among other things, the “communications include
discussions with family members of those detained at Guantanamo, friends and acquaint-
ances of those persons, and investigators, experts and others with knowledge of circum-
stances related to terrorist activities.” Id. at 1158–59 (Breyer, J., dissenting).
277 Complaint for Declaratory and Injunctive Relief at ¶ 1, Amnesty Int’l USA v.
McConnell, No. 08 CIV 6259(JGK), 646 F. Supp. 2d 633 (S.D.N.Y. Aug. 20, 2009).
278 See Clapper, 133 S. Ct. at 1147–55.
279 Id. at 1159.
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1024 CORNELL LAW REVIEW [Vol. 99:981

the Government is doing its job (to find out about, and combat,
terrorism).”280
The government did not deny that communications by U.S. per-
sons had been captured under section 702. Apologists for the pro-
gram claim it is impossible not to examine discussions by Americans
when using technology that collects millions of electronic messages,
and, in fact, the inability to distinguish communications of Americans
from those of foreigners was “one of the main things that drove” the
government to press for the changes in the FAA.281 Reportedly, NSA
analysts use search terms designed to create at least 51% confidence
in a target’s “foreignness”282—hardly a rigorous standard and one vir-
tually guaranteed to collect domestic communications. After Clapper,
however, it seemed possible that the government would fully employ
its powers under the FAA, countless communications of Americans
would be captured thereby, and yet no one would ever be able to chal-
lenge the law.

IV
DEFENSE RIGHTS AND POTENTIAL BARRIERS

All told, the government has the ability to track and record every
aspect of someone’s online life—and much of his offline, real-world
behavior too.283 Both Congress and the courts have facilitated domes-
tic spying by creating a legal environment in which the government is
only loosely bound by legislation and largely unchecked by meaning-
ful judicial review, allowing the executive branch to take aggressive
stances on statutory and constitutional interpretation that have largely
eliminated any previous constraints on surveillance ostensibly for for-
eign intelligence purposes.284 Given the government’s ability to draw
upon Big Data information, the issue here is the basic rights of crimi-
nal defendants to access that information as well. The following lays
the groundwork for an extension of these rights to evidence of digital
innocence. This Part then reviews two of the primary arguments likely
to be made to deprive defendants of their rights of access: the state
secrets privilege and agency alignment.

280 Id. at 1160 (Breyer, J., dissenting); see also Transcript of Oral Argument at 25–26,
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) (No. 11-1025) (remarks of Justice
Anthony Kennedy that “it’s hard for me to think that the government isn’t using all of the
powers at its command under the law . . . in order to protect this country”).
281 James Risen & Eric Lichtblau, Extent of E-mail Surveillance Renews Concerns in Con-
gress, N.Y. TIMES, June 17, 2009, at A1 (quoting former Homeland Security Advisor).
282 Gellman & Poitras, supra note 82. R
283 See supra Part II.
284 See supra Part III.
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A. Government Surveillance and Defense Rights

In Clapper, the plaintiffs called the government’s theory of stand-

ing “a bid for a kind of immunity” since the targets will never know
they have been subjected to surveillance.285 Even if criminal charges
were brought against the target, the government alone decides
whether to introduce any evidence derived from surveillance at trial,
and “[i]t is not at all clear what must be disclosed” as a result of using
such evidence.286 “That contention is misplaced,” the government re-
sponded, because a defendant would be provided notice of the prose-
cution’s intent to use information obtained or derived from electronic
surveillance.287 At oral argument, Solicitor General Donald Verrilli
reiterated that a defendant would have standing to challenge the law
if prosecutors sought to introduce surveillance information at
trial288—an assertion relied upon by the Supreme Court in writing its
opinion in Clapper.289
As it turns out, however, the government was not notifying crimi-
nal defendants as Solicitor General Verrilli had claimed; and even
when there was good reason to believe that NSA surveillance was in-
volved in a given case, prosecutors insisted they had no obligation to
inform the accused.290 After some sort of internal struggle within the
Justice Department, the government reversed course in the fall of
2013 and began to notify defendants that evidence had been derived
from mass surveillance activities.291 Since then, a few defendants have
sought new trials and/or the suppression of evidence obtained or de-
rived from electronic surveillance and bulk metadata collection,292

285 Brief for Respondents at 57, Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013)
(No. 11-1025).
286 Id. at 58 n.22.
287 Reply Brief for Petitioners at 15, Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138
(2013) (No. 11-1025).
288 See Transcript of Oral Argument at 4–5, Clapper v. Amnesty Int’l USA, 133 S. Ct.
1138 (2013) (No. 11-1025).
289 See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1154 (2013) (“[I]f the Govern-
ment intends to use or disclose information obtained or derived from [electronic surveil-
lance] in judicial or administrative proceedings, it must provide advance notice of its
intent, and the affected person may challenge the lawfulness of the acquisition.”).
290 See Adam Liptak, A Secret Surveillance Program Proves Challengeable in Theory Only, N.Y.
TIMES, July 16, 2013, at A11; Devlin Barrett, U.S. Spy Program Lifts Veil in Court, WALL. ST. J.,
July 31, 2013, at A1; Ellen Nakashima, NSA Surveillance Questioned in Plot Case, WASH. POST,
June 22, 2013, at A2; Eric Schmitt et al., Mining of Data Is Called Crucial to Fight Terror, N.Y.
TIMES, June 8, 2013, at A1.
291 See Robert Barnes & Ellen Nakashima, U.S. to Use Warrantless Evidence in Terror Case,
WASH. POST, Oct. 26, 2013, at A1; Charlie Savage, Doors May Open for Challenge to Secret
Wiretaps, N.Y. TIMES, Oct. 17, 2013, at A3; Charlie Savage, Justice Dept. Defends Its Conduct on
Evidence, N.Y. TIMES, Feb. 15, 2014, at A9; Charlie Savage, Warrantless Surveillance Continues
to Cause Fallout, N.Y. TIMES, Nov. 21, 2013, at A20.
292 50 U.S.C. § 1806(e) (2006 & Supp. V 2011) (electronic surveillance); id. § 1845(e)
(pen register and trap and trace devices); see also id. § 1825(f) (suppression motion for
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1026 CORNELL LAW REVIEW [Vol. 99:981

challenging the lawfulness of their surveillance as violating statutory

requirements and constitutional law.293 Most importantly for present
purposes, these defendants have also moved for disclosure of informa-
tion related to their surveillance under the NSA programs and for
access to that information.294
The ultimate resolution of this issue remains unclear. In an his-
toric ruling in January 2014, a federal court in Chicago ordered the
disclosure of FISA application materials to the defense.295 But the rul-
ing in United States v. Daoud was stayed so the appellate process could
run its course, and even if the order is upheld, the revealed materials
may not exonerate the defendant. Instead, it is more likely that the
disclosures will “be highly embarrassing to the government.”296 And

FISA physical searches); id. § 1881e (stating that information acquired under FAA section
702 is governed by 50 U.S.C. § 1806). Patriot Act section 215 does not contain provisions
concerning government notification and motions to suppress, which led the government
to claim there is no remedy for any section 215 violation. See United States’ Response and
Opposition to Defendants’ Joint Motion for New Trial at 17–19, United States v. Moalin,
No. 10-cr-4246-JM, 2013 WL 6079518 (S.D. Cal. Nov. 18, 2013). This remarkable claim was
not addressed in the district court’s opinion. See United States v. Moalin, No. 10-cr-4246-
JM, 2013 WL 6079518 (S.D. Cal. Nov. 18, 2013).
293 See Defendant’s Motion to Suppress Evidence Obtained or Derived from Surveil-
lance Under the FISA Amendments Act and Motion for Discovery at 20–47, United States
v. Muhtorov, No. 12-cr-00033-JLK-1 (D. Colo. filed Jan 29, 2014) [hereinafter Muhtorov
Motion] (on file with authors) (challenging constitutionality of electronic surveillance
under section 702 of the FISA Amendments Act); Statement of Facts and Memorandum of
Points and Authorities in Support of Joint Motion Pursuant to Rule 33, Fed. R. Crim. P.,
for a New Trial at 1–4, 11–25, United States v. Moalin, No. 10-cr-4246-JM, 2013 WL
6079518 (S.D. Cal. Nov. 18, 2013) [hereinafter Moalin Motion] (arguing for new trial
based on, inter alia, unconstitutionality of bulk metadata collection program); Defendant’s
Motion Requesting that This Court Declare the FISA Amendments Act of 2008 Unconstitu-
tional at 1, United States v. Qazi, No. 12-60298-CR-Scola/O’Sullivan (S.D. Fla. May 28,
2013) (on file with authors) (requesting that FAA be declared unconstitutional because it
violates the First and Fourth Amendments, as well as Article III).
294 See Mohamud Motion, supra note 157, at 17–25; Muhtorov Motion, supra note 293, R
at 47–56; Moalin Motion, supra note 293, at 2–7, 25–34, 37–38. R
295 United States v. Daoud, No. 12-cr-723, 2014 WL 321384, at *3 (N.D. Ill. Jan. 29,
2014). But see In re Grand Jury Proceedings of Special April 2002 Grand Jury, 347 F.3d 197,
203 (7th Cir. 2003) (noting that “every FISA wiretap review had been conducted in camera
and ex parte”); Moalin, 2013 WL 6079518, at *9–10 (refusing to order defense access to
surveillance-related materials). As of this writing, similar defense motions are pending in
criminal cases in Colorado (United States v. Muhtorov, No. 12-cr-00033-JLK-1 (D. Colo.)),
Florida (United States v. Qazi, No. 12-60298-CR-Scola/O’Sullivan (S.D. Fla.)), and Oregon
(United States v. Mohamud, No. 3:10-cr-00475-KI (D. Or.)). Other motions may be forth-
coming. See Ellen Nakashima, No Warrant, Inmate Is Told, WASH. POST, Feb. 26, 2014, at A4
(most recent government notification); Patrick C. Toomey, In Reversal, DOJ Poised to Give
Notice of Warrantless Wiretapping, ACLU BLOG OF RIGHTS (Oct. 18, 2013), https://www.aclu.
org/blog/national-security/reversal-doj-poised-give-notice-warrantless-wiretapping (listing
affected cases).
296 Andrew Harris & Steven Church, Terror Defendant’s Lawyer Wins Access to Secret Court
Papers, BUS. WK. (Jan. 30, 2014), http://www.businessweek.com/news/2014-01-29/chicago-
bomb-sting-defense-lawyer-allowed-to-see-fisa-papers-1 (quoting defense attorney Ronald
Kuby) (internal quotations marks omitted).
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2014] DIGITAL INNOCENCE 1027

therein lies a very real danger. In considering defense access to infor-

mation, some may be tempted to view these cases as involving nothing
more than suspected terrorists seeking to have damning evidence ex-
cluded at trial—or, worse yet, convicted terrorists attempting to over-
turn otherwise valid guilty verdicts—all in an attempt to avoid well-
deserved punishment. As prominent jurists have noted in the past,
“we are called on to decide whether evidence should be excluded only
when a search has been ‘successful,’”297 and in this environment the
protection of a constitutional right “is not apt to flourish where its
advocates are usually criminals.”298
But a nearsighted, subject-distorted approach is inconsistent with
constitutional criminal procedure, which makes clear that basic rights
are not diminished by the seriousness of the underlying crime.299 Nor
are rights dependent upon the likely guilt of the accused. “The con-
stitutional rights of criminal defendants are granted to the innocent
and the guilty alike,”300 the Supreme Court has opined, recognizing
that a basic right, “while sometimes a shelter to the guilty, is often a
protection to the innocent.”301 The impact of decisions about access
to information gleaned from mass eavesdropping and bulk-collection

297 Rawlings v. Kentucky, 448 U.S. 98, 121 (1980) (Marshall, J., dissenting).
298 Draper v. United States, 358 U.S. 307, 314 (1959) (Douglas, J., dissenting); see also
Minnesota v. Carter, 525 U.S. 83, 110 (1998) (Ginsburg, J., dissenting) (“Other decisions
have similarly sustained Fourth Amendment pleas despite the criminality of the defend-
ants’ activities.” (internal citations omitted)); Brinegar v. United States, 338 U.S. 160, 181
(1949) (Jackson, J., dissenting) (“Only occasional and more flagrant abuses come to the
attention of the courts, and then only those where the search and seizure yields incriminat-
ing evidence and the defendant is at least sufficiently compromised to be indicted.”).
299 See Mincey v. Arizona, 437 U.S. 385, 395 (1978) (rejecting the notion that there is a
“murder scene exception” to the Fourth Amendment). In the few instances when the
Constitution does distinguish among crimes for purposes of individual rights, the relevant
provisions were intended to provide greater protection to those facing more serious charges
and greater punishment. See U.S. CONST. art. III, § 3, cl. 1 (heightened proof requirements
for treason); id. amend. V (“No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury . . . .”); Alabama v.
Shelton, 535 U.S. 654, 658 (2002) (recognizing that the right to counsel applies in any case
where incarceration may result); Baldwin v. New York, 399 U.S. 66, 69 (1970) (holding that
right to trial by jury applies whenever charged crime authorizes punishment of more than
six months’ imprisonment). In other words, the fact that the foregoing cases involve very
serious criminal charges (i.e., terrorism) cannot justify lower constitutional protections.
But cf. United States v. Abdulmutallab, No. 10-20005, 2011 WL 4345243, at *5–6 (E.D.
Mich. Sept. 16, 2011) (expanding “public safety” exception to Miranda to terrorism
investigations).
300 Kimmelman v. Morrison, 477 U.S. 365, 380 (1986); see also Ohio v. Reiner, 532 U.S.
17, 18 (2001) (per curiam) (“[O]ur precedents dictate that the privilege [against self-
incrimination] protects the innocent as well as the guilty . . . .”); Trupiano v. United States,
334 U.S. 699, 709 (1948) (“The Fourth Amendment was designed to protect both the
innocent and the guilty from unreasonable intrusions upon their right of privacy . . . .”),
overruled in part on other grounds, United States v. Rabinowitz, 339 U.S. 56 (1950).
301 Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52, 55 (1964) (internal
quotation marks omitted).
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1028 CORNELL LAW REVIEW [Vol. 99:981

activities will not be limited to accused and convicted terrorists seek-

ing to suppress incriminating evidence.302 These cases necessarily im-
plicate the rights of those wrongfully accused and convicted of all
sorts of crimes.303
The case for defense access is even more compelling given revela-
tions of chronic government dissembling. A series of high-ranking of-
ficials have made public statements about surveillance activities that
were shown to be misleading if not altogether false,304 and some news
stories provide reason to doubt government claims that it has re-
formed or discontinued certain mass surveillance programs.305 More-
over, recently declassified FISC opinions reveal the government’s
repeated misrepresentations, omissions of material facts, and failure

302 In these cases, one of the key FISA provisions applies not just to suppression mo-
tions but also to “any motion or request . . . pursuant to any other statute or rule . . . to
discover or obtain applications or orders or other materials relating to electronic surveil-
lance or to discover [or obtain] evidence or information obtained or derived from elec-
tronic surveillance.” 50 U.S.C. § 1806(f) (2006 & Supp. V 2011); see also id. § 1845(f)(1)
(analogous provision for pen register and trap and trace devices).
303 Some defendants are now seeking discovery of mass surveillance and bulk metadata
collection activities in criminal cases having nothing to do with terrorism or national secur-
ity. See, e.g., Notice of Motion and Motion to Compel Discovery of Defendant Lara, United
States v. Diaz-Rivera et al., No. 12-cr-00030-EMC/EDL (N.D. Cal. Oct. 2, 2013) (on file with
authors) (drug prosecution).
304 Perhaps the best-known example was Director of National Intelligence James Clap-
per’s congressional testimony denying that the NSA was collecting data on millions of
Americans. Clapper would latter describe his answer as the “‘least untruthful’” and then
later issue an apology for his “‘clearly erroneous statements.’” James Risen, Lawmakers
Question White House Account of an Internet Surveillance Program, N.Y. TIMES, July 4, 2013, at A6
(quoting Director Clapper); see also Spencer Ackerman, Congressional Trio Criticize James
Cole’s NSA Testimony as Misleading, THE GUARDIAN (Feb. 12, 2014), http://www.theguardian.
com/world/2014/feb/12/nsa-james-cole-congress-testimony-surveillance-phone-records
(characterizing Deputy Attorney General James Cole’s statements as “not entirely accu-
rate”); Greg Miller, A Trail of Inaccuracy About NSA Programs, WASH. POST, July 1, 2013, at A1
(discussing inaccuracies and careful phrasing in administration statements about NSA sur-
veillance programs); Shaun Waterman, NSA Chief’s Admission of Misleading Numbers Adds to
Obama Administration Blunders, WASH. TIMES (Oct. 2, 2013), http://www.washingtontimes.
com/news/2013/oct/2/nsa-chief-figures-foiled-terror-plots-misleading/ (discussing Gen-
eral Keith Alexander’s testimony that the number of terrorist plots foiled was one or two,
and not fifty-four as the Obama administration claimed). For earlier incidents of govern-
ment misstatements regarding mass surveillance, see Charles Babington & Dan Eggen,
Gonzales Seeks to Clarify Testimony on Spying, WASH. POST, Mar. 1, 2006, at A8; Dan Eggen &
Walter Pincus, Varied Rationales Muddle Issue of NSA Eavesdropping, WASH. POST, Jan. 27,
2006, at A6 (noting that administration officials had “emphasized in testimony and public
statements that the NSA was prohibited from engaging in domestic surveillance—even as
the agency was clearly doing so” pursuant to President Bush’s orders).
305 See Glenn Greenwald & Spencer Ackerman, How the NSA Is Still Harvesting Your
Online Data, THE GUARDIAN (June 27, 2013), http://www.theguardian.com/world/2013/
jun/27/nsa-online-metadata-collection (“A review of top-secret NSA documents suggests
that the surveillance agency still collects and sifts through large quantities of Americans’
online data—despite the Obama administration’s insistence that the program that began
under Bush ended in 2011.”).
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to abide by court orders.306 This truth-telling deficit calls for circum-

spection about government claims regarding mass surveillance and
justifies defense access in order to protect the rights of the accused.
In particular, the Bill of Rights contains a series of defense trial
rights as part of “what might loosely be called the area of constitution-
ally guaranteed access to evidence.”307 Taken together, the provisions
ensure the delivery of “exculpatory evidence into the hands of the
accused, thereby protecting the innocent from erroneous conviction
and ensuring the integrity of our criminal justice system.”308 Among
other things, the Sixth Amendment guarantees the right of the ac-
cused “to have compulsory process for obtaining witnesses in his
favor.”309 The Compulsory Process Clause has a parallel function to
the Sixth Amendment’s better-known Confrontation Clause: “Just as
an accused has the right to confront the prosecution’s witnesses for
the purpose of challenging their testimony, he has the right to present
his own witnesses to establish a defense.”310 By protecting the right to
compel witness attendance, the Constitution guarantees “the right to
present a defense, the right to present the defendant’s version of the

306 See, e.g., [redacted], No. [redacted], 2011 WL 10945618, at *5 & n.14, *6, *9 (Foreign
Intelligence Surveillance Ct. Oct. 3, 2011) (noting that “for the first time, the government
has now advised the Court that the volume and nature of the information it has been
collecting is fundamentally different from what the Court had been led to believe,” and
stating that the court was “troubled that the government’s revelations regarding NSA’s
acquisition of Internet transactions mark the third instance in less than three years in
which the government has disclosed a substantial misrepresentation regarding the scope of
a major collection program”); In re FBI for an Order Requiring the Production of Tangible
Things from [redacted], No. BR 09-13, 2009 WL 9150896, at *2 (Foreign Intelligence Sur-
veillance Ct. Sept. 25, 2009) (stating that it was “deeply troubled” by noncompliance inci-
dents, which occurred shortly after the NSA’s completion of “end to end review” of the
relevant processes “and its submission of a report intended to assure the Court that NSA
had addressed and corrected the issues giving rise to the history of serious and widespread
compliance problems”); In re Production of Tangible Things from [redacted], No. BR 08-13,
2009 WL 9150913, at *2–9 (Foreign Intelligence Surveillance Ct. Mar. 2, 2009) (describing
government misrepresentations and violations of court orders); In re Production of Tangi-
ble Things from [redacted], No. BR 08-13, 2009 WL 9157881, at *2 (Foreign Intelligence
Surveillance Ct. Jan. 28, 2009) (“The Court is exceptionally concerned about what appears
to be a flagrant violation of its Order in this matter . . . .”); Memorandum Opinion at 3,
[redacted], No. PR/TT [redacted] (Foreign Intelligence Surveillance Ct. [redacted]) (“NSA
exceeded the scope of authorized acquisition continuously during the more than [redacted]
years of acquisition . . . .”), available at http://www.dni.gov/files/documents/1118/CLEAN
EDPRTT%202.pdf; see also In re All Matters Submitted to the Foreign Intelligence Surveil-
lance Court, 218 F. Supp. 2d 611, 620–21 (Foreign Intelligence Surveillance Ct. 2002)
(describing government’s “misstatements and omissions of material facts” in FISA applica-
tions), rev’d on other grounds, In re Sealed Case, 310 F.3d 717 (Foreign Intelligence Surveil-
lance Ct. Rev. 2002).
307 United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (referring to defense
rights contained in the Fifth and Sixth Amendments).
308 California v. Trombetta, 467 U.S. 479, 485 (1984).
309 U.S. CONST. amend. VI.
310 Washington v. Texas, 388 U.S. 14, 19 (1967).
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facts as well as the prosecution’s to the jury so it may decide where the
truth lies.”311
At a minimum, the Supreme Court’s jurisprudence establishes
that a defendant has “the right to the government’s assistance in com-
pelling the attendance of favorable witnesses at trial and the right to
put before a jury evidence that might influence the determination of
guilt.”312 To be sure, the Court has also made clear that “the mere
invocation of that right cannot automatically and invariably outweigh
countervailing public interests.”313 Compulsory process cannot be
used irresponsibly to undermine the basic goals of a criminal justice
system by hampering the legal process or impeding the fact-finding
function of a criminal trial.314 But although officials have some lati-
tude concerning the disclosure of information and its use in court,
that flexibility has limits when it infringes upon a criminal defendant’s
right to “a meaningful opportunity to present a complete defense.”315
The refusal to disclose potentially exonerating evidence under-
cuts the aims of the criminal justice system—most obviously, an accu-
rate fact-finding process in pursuit of the truth. In holding that even
the President could not resist a subpoena in a criminal case, the
Supreme Court emphasized that the nation, through its Constitution
and legal tradition,
elected to employ an adversary system of criminal justice in which
the parties contest all issues before a court of law. The need to de-
velop all relevant facts in the adversary system is both fundamental
and comprehensive. The ends of criminal justice would be defeated
if judgments were to be founded on a partial or speculative presen-
tation of the facts. The very integrity of the judicial system and pub-
lic confidence in the system depend on full disclosure of all the
facts, within the framework of the rules of evidence. To ensure that
justice is done, it is imperative to the function of courts that com-
pulsory process be available for the production of evidence needed
either by the prosecution or by the defense.316
Another fundamental part of the defense right of access is the
government’s discovery obligations under the Due Process Clause.
Pursuant to Brady v. Maryland and its progeny, the prosecution is re-
quired to disclose favorable evidence—essentially, exculpatory and

311 Id.
312 Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987).
313 Taylor v. Illinois, 484 U.S. 400, 414 (1988).
314 See id. at 414–15 (“The integrity of the adversary process, which depends both on
the presentation of reliable evidence and the rejection of unreliable evidence, the interest
in the fair and efficient administration of justice, and the potential prejudice to the truth-
determining function of the trial process must also weigh in the balance.”).
315 Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467
U.S. 479, 485 (1984)) (internal quotation marks omitted).
316 United States v. Nixon, 418 U.S. 683, 709 (1974).
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witness impeachment evidence—that is material to the defense and in

the possession of the government.317 In post-conviction review, evi-
dence is considered “material” to the defense if “there is a reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.”318
The scope of the prosecution’s duty includes learning of “any
favorable evidence known to the others acting on the government’s
behalf in the case, including the police.”319 Moreover, Rule 16 of the
Federal Rules of Criminal Procedure requires the prosecution to dis-
close to the defendant certain categories of information “within the
government’s possession, custody, or control,” including “any relevant
written or recorded statement by the defendant” and documents and
other objects that are “material to preparing the defense” or that “the
government intends to use . . . in its case-in-chief at trial.”320
The right of access helps inform a fundamental premise: the gov-
ernment is not obliged to prosecute any case—the principle of
“mandatory prosecution” is foreign in American criminal justice321—
but once a criminal case is brought, a defendant is granted various
constitutional rights that must be respected and even facilitated by the
government.322 This premise applies with full force to digital evi-
dence. The government is not compelled to use Big Data or to en-
gage in mass surveillance, and it certainly is under no obligation to
prosecute cases as a result of the information it finds. But when it
does, the government must provide a basic level of evidentiary access
and ability to challenge the prosecution as required by the
Constitution.323

317 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment”); Giglio v. United States, 405 U.S.
150 (1972) (holding that suppression of material impeachment evidence violates due pro-
cess under Brady).
318 United States v. Bagley, 473 U.S. 667, 682 (1985). “A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome.” Id.
319 Kyles v. Whitley, 514 U.S. 419, 437 (1995); see also Giglio, 405 U.S. at 154 (noting
that the prosecution has the burden of ensuring “communication of all relevant informa-
tion on each case to every lawyer who deals with it”).
320 FED. R. CRIM. P. 16(a)(1).
321 See, e.g., THE PROSECUTOR IN TRANSNATIONAL PERSPECTIVE 84–86, 200–01 (Erik Luna
& Marianne L. Wade eds., 2012) (discussing the broad charging discretion granted to
American prosecutors).
322 See generally David A. Sklansky, Quasi-Affirmative Rights in Constitutional Criminal Pro-
cedure, 88 VA. L. REV. 1229, 1238–43 (2002) (discussing the rights that the government is
required to provide criminal defendants, most notably, those rights granted by the Fifth
and Sixth Amendments).
323 After revelations of warrantless mass surveillance under the Bush Administration—
known as the “President’s Surveillance Programs” (PSP)—the Inspector General admon-
ished the Justice Department to review its discovery obligations for information derived
from such surveillance. See OIG Report, supra note 250, at 19 (summarizing the Inspector R
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1032 CORNELL LAW REVIEW [Vol. 99:981

B. Barriers to Digital Innocence

A defendant’s right to access Big Data information to prove his
innocence faces several obstacles. The government’s mass surveil-
lance programs are ostensibly secret, despite appearing on the front
page of every major newspaper. Moreover, defendants may have
trouble accessing information that is available for use by law enforce-
ment but is in the possession of another government agency or entity.
Even though investigators can tap the information source in further-
ance of a criminal probe, and prosecutors may rely upon the resulting
information as evidence at trial, the government often balks at
defense requests for information possessed by agencies outside of the
law enforcement community. This section addresses these barriers to
claims of digital innocence.

1. State Secrets
The so-called “state secrets privilege” provides the government a
limited prerogative to withhold classified information (and perhaps
nonclassified “state secrets”) sought in court proceedings, most often
in civil cases brought against the government and its private-sector
partners. A related procedural bar can preclude judicial inquiry alto-
gether where state secrets are essential to the litigation.324 The
Supreme Court has long acknowledged that “no governmental inter-
est is more compelling than the security of the Nation.”325 This in-
cludes “protecting both the secrecy of information important to our
national security and the appearance of confidentiality so essential to
the effective operation of our foreign intelligence service.”326 For in-
stance, terrorism investigations can implicate various types of informa-
tion that, if disclosed, might aid terrorist organizations and further
violent schemes. In the case of Zacarias Moussaoui, the so-called
“20th Hijacker” in the 9/11 plot, the government argued:

General’s report). In particular, the Inspector General called upon the Justice Depart-
ment to: (1) “carefully consider whether it must re-examine past cases to see whether po-
tentially discoverable but undisclosed Rule 16 or Brady material was collected under the
PSP, and take appropriate steps to ensure that it has complied with its discovery obligations
in such cases”; and (2) “implement a procedure to identify PSP-derived information, if any,
that may be associated with international terrorism cases currently pending or likely to be
brought in the future and evaluate whether such information should be disclosed in light
of the government’s discovery obligations under Rule 16 and Brady.” Id.
324 See, e.g., Tenet v. Doe, 544 U.S. 1, 11 (2005) (adhering to categorical bar an-
nounced in Totten v. United States, 92 U.S. 105 (1876), and emphasizing that the “state
secrets privilege and the more frequent use of in camera judicial proceedings simply cannot
provide the absolute protection” necessary in lawsuits against the government where the
plaintiffs’ success depends upon the existence of their alleged secret relationship with the
government).
325 Haig v. Agee, 453 U.S. 280, 307 (1981).
326 Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (per curiam).
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Because al Qaeda operates as a clandestine force relying on sleeper

agents to mount surprise attacks, one of the most critical fronts in
the current war involves gathering intelligence about future terror-
ist attacks and how the terrorist network operates—identifying
where its operatives are, how it plans attacks, who directs opera-
tions, and how they communicate.327
To do this, the government has developed the aforementioned,
rather amazing surveillance apparatus. In the realm of national secur-
ity, the government often works with the development and deploy-
ment assistance of the private sector.328 This is particularly the case in
Big Data data mining, where partnerships with Silicon Valley giants
form the bedrock of the government surveillance program.329 In
many instances, the specifications and even the existence of the tech-
nology remain secrets of the state.330 For evident reasons, the govern-
ment often wishes to avoid disclosing information about hardware
and software that could allow malefactors to thwart detection. Such
information might fall into the hands of foreign enemies and accrue
to their benefit, and typically to U.S. detriment as well. The same is
true of information obtained from American allies, the secrecy of
which has long been recognized as critical to the successful conduct of
foreign affairs.331 The government also has a clear interest in the ano-
nymity of informants, many of whom are lodged within criminal
schemes involving racketeering, drug trafficking, terrorism, and so on.
It should be noted, however, that in the case of mass electronic
surveillance the biggest concern is not necessarily the existence of the
programs, which are now generally acknowledged, nor is it the capa-
bility to gather information, since the systems are “full take.” Rather,
the issue may be the degree to which the government complies with
the law. Oftentimes, legal limits are kept secret to prevent them from
serving as a guide for evasion.332 This creates an interesting effect: the

327 Hamdan v. Rumsfeld, 548 U.S. 557, 723–24 (2006) (Thomas, J., dissenting) (quot-
ing Brief for the United States at 9, United States v. Moussaoui, 382 F.3d 453 (4th Cir.
2004) (No. 03-4792)) (internal quotation marks omitted).
328 See, e.g., Richards, supra note 154, at 1934, 1958–59 (noting that private and public R
sector surveillance “use the same technologies and techniques” and “operate through a
variety of public/private partnerships”).
329 See Glenn Greenwald et al., Microsoft Gave NSA Access to Users’ Messages, THE GUARD-
IAN, July 12, 2013, at A1 (describing partnerships between the NSA and several
corporations).
330 See, e.g., Greenwald, supra note 62 (explaining that Verizon could not “disclos[e] to R
the public either the existence of the FBI’s request for its customers’ records or the court
order” compelling the production of those call records to the NSA).
331 See, e.g., United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936) (not-
ing that regarding foreign affairs, “[s]ecrecy in respect of information gathered by [gov-
ernment agents] may be highly necessary, and the premature disclosure of it productive of
harmful results”).
332 See Richards, supra note 154, at 1942–45 (criticizing surveillance law’s limited pro- R
tections where plaintiffs “can only challenge secret government surveillance they can
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1034 CORNELL LAW REVIEW [Vol. 99:981

more careful the government is about respecting legal limits, the

more it seeks to isolate discussions about those legal limits from the
public.
The 1953 case of United States v. Reynolds 333 is frequently cited for
recognizing the government privilege on state secrets, as well as estab-
lishing its boundaries and the process for invocation. Under Reynolds,
the judge “must determine whether the circumstances are appropri-
ate for the claim of privilege, and yet do so without forcing a disclo-
sure of the very thing the privilege is designed to protect.”334 This
requires a “formula of compromise,” balancing the “circumstances of
the case” and the requesting party’s “showing of necessity” for the evi-
dence versus the government’s concerns that “compulsion of the evi-
dence will expose military matters which, in the interest of national
security, should not be divulged.”335
In drawing upon the exercise of similar doctrines, the Reynolds
Court apparently contemplated that the claimant could disclose to the
judge enough information—perhaps filed under seal and reviewed in
camera—so that the judge could determine the existence of the privi-
lege and, if it existed, the extent to which it might be overridden by
the opposing party’s need for the information. If the judge decides
there is a reasonable danger that disclosure would harm U.S. national
security, “the claim of the privilege will be accepted without requiring
further disclosure,”336 and the relevant information will be considered
unavailable for purposes of the litigation.
Due to the privilege’s broad sweep, some courts have maintained
that, “whenever possible, sensitive information must be disentangled
from nonsensitive information to allow for the release of the latter.”337
In a simple example, secret information might be redacted from rele-
vant pages instead of suppressing the whole document. Others have
questioned the judiciary’s ability to neatly separate classified and un-
classified information in light of the so-called “mosaic theory,” which
postulates that an overall picture of national security efforts can be
revealed by analyzing and fitting into place otherwise innocent “bits
and pieces” of information.338 As one court argued, “if seemingly in-
nocuous information is part of a classified mosaic, the state secrets

prove,” yet acknowledging the simultaneous benefits of such a standard, which provides
security from potential crime).
333 345 U.S. 1 (1953).
334 Id. at 8 (citation omitted).
335 Id. at 9–11.
336 Id. at 9.
337 Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983); see also Doe v. Tenet, 329 F.3d
1135, 1152–53 (9th Cir. 2003), rev’d, 544 U.S. 1 (2005) (providing possible safeguards to
prevent public exposure of secret materials).
338 See, e.g., CIA v. Sims, 471 U.S. 159, 178 (1985).
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privilege may be invoked to bar its disclosure and the court cannot
order the government to disentangle this information from other clas-
sified information.”339
Jewel v. National Security Agency provides an example of how these
complex issues are resolved in an ongoing case.340 In 2008, the plain-
tiffs in Jewel brought a challenge to the NSA warrantless mass surveil-
lance program conducted by gathering Internet backbone
information directly from telecommunications providers.341 On re-
mand from the Ninth Circuit,342 Judge Jeffrey White considered
whether the state secrets privilege barred the entire subject matter of
the litigation because the programs themselves were secret, and
whether the FISA section relating to procedures for use of electronic
surveillance data, 50 U.S.C. § 1806(f), preempted the federal com-
mon law of state secrets.343
On the first question, Judge White determined that recent public
disclosure of government mass electronic surveillance meant that
there was no longer an interest in keeping the existence of the pro-
grams secret.344 Obviously, this is an important point for those seek-
ing disclosure of government surveillance information to prove their
innocence. The surveillance programs are now public, and the data
sought by run-of-the-mill defendants will not touch on national secur-
ity. As such, there remains little in the way of a secret to keep were the
government required to disclose non-sensitive data, such as informa-
tion relevant to a defendant’s alibi.
Judge White further developed this distinction between subject
matter and individual data in his analysis of the FISA procedures for
reviewing information derived from electronic surveillance. The court
noted that 50 U.S.C. § 1806(f) provides the exclusive means for evalu-
ating electronic surveillance evidence.345 Because Congress chose to
impose these rules “notwithstanding any other . . . law,”346 and author-

339 Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998).
340 See Jewel v. NSA, No. C 08-04373 JSW, No. C 07-00693 JSW, 2013 WL 3829405 (N.D.
Cal. July 23, 2013).
341 Id. at *23.
342 Jewel v. NSA, 673 F.3d 902, 913–14 (9th Cir. 2011).
343 Jewel, 2013 WL 3829405, at *7.
344 Id. In December 2013, the Director of National Intelligence, James Clapper, filed a
declaration stating that the government was no longer asserting privilege over the exis-
tence of the warrantless mass surveillance program. Public Declaration of James R. Clap-
per, Director of National Intelligence at 2–6, Jewel v. NSA, No. C 08-04373 JW, No. C 07-
00693 JSW, 2013 WL 3829405 (N.D. Cal. July 23, 2013), available at http://www.dni.gov/
files/documents/1220/DNI%20Clapper%202013%20Jewel%20Shubert%20SSP%20Un
classified%20Signed%20Declaration.pdf. Nonetheless, the government continues to claim
the state secrets privilege with regard to still-classified information on the program’s scope
and operational details. See id. at 6–21.
345 Jewel, 2013 WL 3829405, at *8.
346 50 U.S.C. § 1806(f) (2006 & Supp. V 2011).
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1036 CORNELL LAW REVIEW [Vol. 99:981

ized the section as the “exclusive means by which materials [desig-

nated as sensitive by the government] shall be reviewed,”347 the court
determined that section 1806(f) preempted the state secrets privilege
for purposes of evaluating evidence of electronic surveillance.
The specific description leaves no room for application of the state
secrets privilege and is, in effect, a “codification of the state secrets
privilege for purposes of relevant cases under FISA, as modified to
reflect Congress’s precise directive to the federal courts for the han-
dling of materials and information with purported national security
implications.”348
It remains to be seen how far this rationale extends. Not all cases
involving surveillance will raise FISA claims; for instance, some will
entail wiretapping under Title III. Moreover, section 1806(f) review
goes to the lawfulness and appropriateness of the surveillance. It is
not clear whether the in camera review imagined by section 1806(f)
extends to all those seeking to “discover or to obtain” the fruits of
government surveillance or only to those who challenge the legality or
appropriateness of the surveillance. But the overall tenor of section
1806 is concerned precisely with use and disclosure of electronic sur-
veillance in criminal cases, and the ability of “aggrieved persons” to
challenge the collection and use of that data. It would be a strange
reading of the statute if parties were permitted access to information
for purposes of challenging the legality of that information but not for
purposes of proving their innocence.
In addition, it must be kept in mind that criminal defendants
seeking access to Big Data are in a different position from civil liti-
gants. As the Supreme Court noted in Reynolds,
The rationale of the criminal cases is that, since the Government
which prosecutes an accused also has the duty to see that justice is
done, it is unconscionable to allow it to undertake prosecution and
then invoke its governmental privileges to deprive the accused of
anything which might be material to his defense. Such rationale
has no application in a civil forum where the Government is not the
moving party, but is a defendant only on terms to which it has
consented.349
This position is entirely consistent with the foregoing premise: the
government is not required to prosecute a criminal case, but when it
does, it must respect and at times facilitate the defendant’s rights.350

347 18 U.S.C. § 2712(b)(4) (2012).

348 Jewel, 2013 WL 3829405, at *9 (quoting In re NSA Telecomms. Records Litig., 564 F.
Supp. 2d 1109, 1119 (N.D. Cal. 2008)).
349 United States v. Reynolds, 345 U.S. 1, 12 (1953).
350 See supra Part IV.A.
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2014] DIGITAL INNOCENCE 1037

Although lower court cases have subsequently concluded that the

state secrets privilege does apply in criminal cases,351 the doctrine has
a more limited scope in light of the constitutional rights at stake, and
it cannot defeat a claim of digital innocence backed by a sufficient
showing that the government possesses relevant and potentially excul-
patory evidence. Since the NSA scandal broke, defense attorneys have
begun to seek government surveillance information as proof of inno-
cence. In June 2013, lawyers for a robbery defendant filed a Rule 16
motion to require the government to hand over cell-site location in-
formation (CSLI), which, the defendant argued, would establish his
innocence.352 The court treated the motion as one under section
1806(f)353 and ordered the government to respond, noting that “even
if the Court determines that the surveillance was lawfully authorized
or conducted, it must order discovery or disclosure to the extent that
due process requires it.”354
In an unredacted portion of its response, the government alleged
that it did not receive CSLI “under this program.”355 Still, it appears
increasingly likely that the government does receive this data under
some program. After all, CSLI is a key component of the NSA
cellphone tracking program CO-TRAVELER.356 Moreover, CSLI is
openly retained and recorded by almost every telecommunications
carrier, which could be required to turn over this information as
metadata within the purview of FISC orders.357 Perhaps the qualifying
language (“under this program”) saves the government’s assertions;
or perhaps the government explained more in the redacted portions
of its filing. In the end, the government’s claim that it did not gather
CSLI “under this program” appeared to convince the defendant, who
withdrew his request before the judge ruled on the merits.358 But the

351 See, e.g., United States v. Aref, 533 F.3d 72, 79–80 (2d Cir. 2008) (holding that the
state secrets privilege applies to requests for privileged information brought under the
Classified Information Procedures Act in criminal cases).
352 Motion to Compel Production of Phone Records at 3, United States v. Davis, No.
11-cr-60285-RSR (S.D. Fla. filed June 9, 2013).
353 See supra notes 345–48 and accompanying text. R
354 Order Requiring Response from Government at 3, United States v. Davis, No. 11-cr-
60285-RSR (S.D. Fla. filed June 10, 2013), available at http://de.scribd.com/doc/
147116286/Order-Requiring-Response-Re-FISA-Records.
355 Government’s Response to the Court’s Order and Motion for a Protective Order
Pursuant to Section 4 of the Classified Information Procedures Act and Rule 16(d)(1) of
the Federal Rules of Criminal Procedure and Memorandum of Law at 2, United States v.
Davis, No. 11-cr-60285-RSR (S.D. Fla. filed June 19, 2013).
356 See Gellman & Soltani, supra note 5. The NSA Director, General Keith Alexander, R
testified that the NSA had run pilot projects collecting U.S. cellphone location data. Al-
though claiming that the program was discontinued, General Alexander acknowledged
that the NSA may resume the collection process in the future. See id.
357 See supra notes 261–68 and accompanying text. R
358 See Reply to Government’s Response to Defendant’s Motion to Compel at 1, United
States v. Davis, No. 11-cr-60285-RSR (S.D. Fla. filed June 20, 2013) (“Given the govern-
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1038 CORNELL LAW REVIEW [Vol. 99:981

matter will have to be decided at some point—new defendants are

already raising similar challenges, and they are unlikely to be dis-
suaded by government assurances.359

2. Agency Alignment
Another potential barrier to digital innocence claims is the divide
between the law enforcement community and the intelligence com-
munity. As discussed earlier, the roots of the problem lie in the histor-
ical separation of intelligence gathering from criminal investigation—
a separation that was always somewhat sketchy, given that the targets
of intelligence agents are often involved in crime, while law enforce-
ment has long relied upon information gleaned from intelligence op-
erations. Moreover, the legal predicate for the separation no longer
exists post–Patriot Act,360 although the government continues to as-
sert the division to limit defense access to information.361
Originally, the separation may have made some sense, as the
goals of the two communities are not immediately congruent. The
mission of the federal law enforcement community “is to identify, tar-
get, investigate, arrest, prosecute, and convict those persons who com-
mit crimes in violation of Federal laws.”362 By contrast, the mission of
the intelligence community—which includes more than a dozen gov-
ernment organizations, such as the CIA and the NSA363—“is to per-
form intelligence activities necessary for the conduct of foreign
relations and the protection of the national security, including the
collection of information and the production and dissemination of
intelligence; and the collection of information concerning espionage,
international terrorist activities, and international narcotics
activities.”364
Few published cases have provided guidance on discovery obliga-
tions for information held by the intelligence community.365 In gen-

ment’s representation, Mr. Brown concedes that the records will not assist him in establish-
ing his innocence . . . [and] therefore withdraws his requests . . . .”).
359 See supra note 294 and accompanying text. R
360 See supra notes 232–35 and accompanying text. R
361 See, e.g., Mohamud Motion, supra note 157, at 46–50 (describing how prosecution R
narrowly construed its discovery obligations).
362 U.S. DEP’T OF JUSTICE, UNITED STATES ATTORNEYS’ MANUAL § 9-90.210(A) (rev. ed.
2008) [hereinafter USAM].
363 See Mission: Member Agencies, U.S. INTELLIGENCE COMMUNITY, http://www.intelli
gence.gov/mission/member-agencies.html (last visited Mar. 24, 2014).
364 USAM, supra note 362, § 9-90.210(A). R
365 In United States v. Libby, a former White House official was charged with the unau-
thorized disclosure of classified information, namely, an undercover operative’s affiliation
with the CIA. Given “a rather free flow of documents” from the CIA to the special prosecu-
tor’s office, the trial judge concluded that the CIA was closely aligned with the prosecution
for discovery purposes. United States v. Libby, 429 F. Supp. 2d 1, 11 (D.D.C. 2006); see also
United States v. Diaz-Munoz, 632 F.2d 1330 (5th Cir. 1980) (determining that trial court
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2014] DIGITAL INNOCENCE 1039

eral, the government’s obligation to disclose goes beyond evidence

known to be in its physical possession. The scope of this duty is not
gauged by a prosecutor’s knowledge, since information known to
members of the “prosecution team”366 can be imputed to the prosecu-
tor. At times, prosecutors may be required to search for exculpatory
evidence, including information maintained by government bodies
that have a working relationship with the prosecution—or, as phrased
by some courts, those agencies “closely aligned with the prosecu-
tion.”367 For example, cases have imputed to federal prosecutors evi-
dence within the possession of the Drug Enforcement Agency, the
Bureau of Prisons, and state law enforcement when these entities have
been involved in case investigation or prosecution.368
The federal courts have differed on the appropriate standard for
whether a given governmental body is aligned with the prosecution.369
Some circuits have adopted “an expansive view” and “imputed a broad
range of knowledge to the prosecution,”370 placing an obligation on
prosecutors to inquire of all agencies that have a potential connection
with the case. Under this view, the government “is not a congery of
independent hermetically sealed compartments,” and “the prosecutor
is duty bound to demand compliance with disclosure responsibilities
by all relevant dimensions of the government.”371 Other circuits have
taken narrower approaches to alignment, refusing to “infer the prose-
cutors’ knowledge simply because some other government agents
knew about the [information].”372 Rather, alignment requires some
form of cooperation between the prosecutor and the entity in ques-
tion. The appropriate scope of alignment remains unresolved, as
demonstrated by disagreement among judges within the same
circuit.373

was required to undertake in camera review of CIA documents that defendant claimed
were exculpatory); United States v. Poindexter, 727 F. Supp. 1470, 1487 (D.D.C. 1989)
(determining that defendant was entitled to discovery of a limited set of documents pre-
pared by the executive branch relating to the Iran-Contra affair).
366 See, e.g., Moon v. Head, 285 F.3d 1301, 1309 (11th Cir. 2002).
367 See, e.g., United States v. Brooks, 966 F.2d 1500, 1503 (D.C. Cir. 1992) (quoting
United States ex rel. Smith v. Fairman, 769 F.2d 386, 391 (7th Cir. 1985)) (internal quota-
tion marks omitted).
368 See, e.g., United States v. Blanco, 392 F.3d 382, 393–94 (9th Cir. 2004) (DEA
agents); United States v. Antone, 603 F.2d 566, 570 (5th Cir. 1979) (state agents); United
States v. Burnside, 824 F. Supp. 1215, 1257–58 (N.D. Ill. 1993) (federal prison personnel).
369 See Afsheen John Radsan, Remodeling the Classified Information Procedures Act (CIPA),
32 CARDOZO L. REV. 437, 454–57 (2010).
370 Smith v. Sec’y of N.M. Dep’t of Corr., 50 F.3d 801, 825 n.36 (10th Cir. 1995) (citing
United States v. Thornton, 1 F.3d 149, 158 (3d Cir. 1993)).
371 United States v. Osorio, 929 F.2d 753, 760, 62 (1st Cir. 1991).
372 United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993).
373 Compare United States v. Safavian, 233 F.R.D. 12, 14 (D.D.C. 2005) (adopting an
expansive view), with United States v. Libby, 429 F. Supp. 2d 1, 6 n.10 (D.D.C. 2006) (sup-
porting a narrower view).
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1040 CORNELL LAW REVIEW [Vol. 99:981

Regardless of the standard, however, it is clear that the govern-

ment obligation to respond to defense requests for information does
not stop at the edge of an agency’s organizational chart. In the
Oklahoma City Bombing case, the trial court noted that lack of agency
alignment
does not limit the duty to inquire of such agencies for information
which may be exculpatory or impeaching as to the government’s
evidence or material to the preparation of the defense of Mr.
McVeigh and Mr. Nichols. Accordingly, the prosecutors must re-
spond to the defendants’ requests for information from a broad
perspective of the government as a whole.374
The trial court did acknowledge the strain placed upon the prose-
cutors in this case, and in terrorism cases in general,375 but this did
not reduce the government’s obligation to comply with discovery
rules.
Application of the Brady doctrine to this case is especially difficult
because the scope of inquiry is so broad and the information gath-
ering capability of all government agencies is so great. The lawyers
appearing on behalf of the United States, speaking for the entire
government, must inform themselves about everything that is
known in all of the archives and all of the data banks of all of the
agencies collecting information which could assist in the construc-
tion of alternative scenarios to that which they intend to prove at
trial. That is their burden under Brady[, and it] is not excused by
any inconvenience, expense, annoyance or delay.376
Such exhortations are not always borne out in executive protocol,
however. To this day, the United States Attorneys’ Manual uses language
that harks back to the pre-9/11 wall.377 Both the law enforcement
community and the intelligence community belong to the executive
branch of government, but they maintain “very distinct identities,
mandates, and methods,” guided by different legal provisions and
arrangements.378 “Although coordination on matters of common
concern is critical to the proper functioning of the two communities,
prosecutors must be aware of the concomitant need of both commu-
nities to maintain a well-delineated separation between criminal pros-
ecutions and foreign intelligence activities, in which less-stringent
restraints apply to the government.”379
Another policy document for federal prosecutors, the Criminal
Resource Manual, recognizes that when the intelligence community

374 United States v. McVeigh, 923 F. Supp. 1310, 1315 (D. Colo. 1996).
375 See United States v. McVeigh, 954 F. Supp. 1441, 1450 (D. Colo. 1997).
376 Id.
377 See supra notes 221–23 and accompanying text. R
378 USAM, supra note 362, § 9-90.210(A). R
379 Id.
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actively participates in an investigation or prosecution, “it likely has

aligned itself with the prosecution and its files are subject to the same
search as would those of an investigative law enforcement agency as-
signed to the case.”380 Examples would include cases where an intelli-
gence agency provided information that served as a predicate for a
search warrant or an indictment. The Criminal Resource Manual then
turns to the question of when intelligence files should be searched
even though the intelligence community (IC) was not actively in-
volved in a criminal investigation. Specifically, it suggests a sliding
scale where a greater demonstration by the defense is necessary to
justify broader, more difficult searches. In any case, a prosecutor must
search intelligence files when he has “direct or reliable knowledge of
potential Brady and/or other discovery material in the possession of
the IC” or when there “exists any reliable indication suggesting that
the IC possesses evidence that meets the Brady case law standard of
materiality.”381 Finally, certain types of cases may justify a “prudential
search,” defined as “one based not upon a known duty to the defen-
dant or to a known nexus to national security matters but rather on
the fact that the case meets a certain profile of cases likely to implicate
such issues.”382
According to one former federal prosecutor and CIA attorney,
the actual search process can be somewhat circuitous and
circumspect.
[P]rosecutors do not rummage through an intelligence agency’s
vault and determine what needs to be disclosed file by file. Instead,
an administrator without a law degree searches the intelligence files
in response to a laundry list from the prosecutor. After the search is
complete, the prosecutor, whose case—and license—are on the
line, will travel to the intelligence agency and apply the rules of dis-
covery to decide which of the found files, if any, need to be turned
over to the defense.383
In this process, counsel for the given intelligence agency may inter-
cede and advocate against disclosure. Sometimes spymasters and
prosecutors disagree on whether alignment exists in a particular
case.384 These disagreements reinforce other differences. For in-
stance, the “CIA does not gather and store its information in the same
way that the FBI does,” and the intelligence community “is not as con-
cerned with chains of custody and the rules of evidence.”385

380 Id. at § 2052(B)(1).

381 Id. at § 2052(B)(2)(a).
382 Id. at § 2052(B)(4).
383 Radsan, supra note 369, at 452. R
384 See id. at 456.
385 Id. at 456–57.
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The current system thus reflects a separation of agencies that

does not track the post-9/11 realities of information sharing and in-
teragency cooperation. In the end, courts may have the final say on
disclosure but only after an opaque process involving file searches by
intelligence agency staff and any negotiations between prosecutors
and spymasters. Worse yet, although the walls between agencies have
been torn down with respect to the flow of incriminating information,
they have been actively reinforced with respect to exonerating infor-
mation. Agency cooperation speeds the flow of incriminating infor-
mation but impedes the flow of exonerating information. Automated
searches of very large databases provide incriminating information,
while exonerating evidence arises, if at all, from the fumbling searches
of “administrators without a law degree.”
Above all, defendants must know the path information has taken
in order to locate potential sources of information that may prove
them innocent. As noted earlier, intelligence and law enforcement
agencies have actively shared information.386 Reportedly, however,
law enforcement officials have been instructed to hide the source of
this information.387 According to documents reviewed by the news
agency Reuters, an entity within the Drug Enforcement Agency—the
Special Operations Division (SOD)—funnels NSA intelligence to law
enforcement officers but directs them to conceal the true origins of
any resulting criminal investigation from defense attorneys, prosecu-
tors, and judges.388 To pull off this ruse, law enforcement is trained to
“recreate” information through a process euphemistically termed
“parallel construction”: laundering the information in question by
concocting independent sources through field interviews, confidential
informants, physical searches and seizures, etc.389
Some legal experts have denounced the practice as more troub-
ling than the NSA spying scandal itself.390 Like the post-Clapper failure
to provide notice to affected defendants,391 parallel construction insu-
lates the government’s surveillance activities from legal scrutiny. By
misleading the courts, it prevents the judiciary from fulfilling its

386 See supra notes 232–35, 290–96 and accompanying text. R

387 See John Shiffman & Kristina Cooke, U.S. Directs Agents to Cover Up Program Used to
Investigate Americans, REUTERS, Aug. 5, 2013, available at http://www.reuters.com/article/
2013/08/05/us-dea-sod-idUSBRE97409R20130805?irpc=932; John Shiffman & David In-
gram, IRS Manual Detailed DEA’s Use of Hidden Intel Evidence, REUTERS, Aug. 7, 2013, available
at http://www.reuters.com/article/2013/08/07/us-dea-irs-idUSBRE9761AZ20130807.
388 Shiffman & Cooke, supra note 387. R
389 See id.; Shiffman & Ingram, supra note 387. R
390 Even a current federal prosecutor acknowledged that “[l]ying about where the in-
formation came from is a bad start if you’re trying to comply with the law because it can
lead to all kinds of problems with discovery and candor to the court.” Shiffman & Cooke,
supra note 387 (quoting the prosecutor) (internal quotation marks omitted). R
391 See supra notes 290–96 and accompanying text. R
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fundamental role in assessing the factual basis for court orders. Most
of all, information laundering deprives the accused of a meaningful
opportunity to defend himself at trial. Criminal defendants must
know the path information has taken in order to locate sources of
information that may prove them innocent. When the government
obscures the origin and course of information, they not only inhibit
the defense from challenging the information’s origins but also un-
dermine efforts to locate other discoverable, and perhaps exonerat-
ing, material. Defendants find themselves confronted with evidence
that they have no way to contest or contextualize. For this reason,
defense attorneys are now challenging the practice as a violation of
the defendant’s right to a fair trial, and they are making more aggres-
sive discovery requests to ensure that potentially exculpatory evidence
is not secreted in intelligence files.392
All of this justifies a straightforward approach: agency alignment
should follow the movement of information, not arbitrary lines of
agency organization. Where incriminating information flows between
organizations, exonerating information must flow as well. This is a far
simpler principle than attempting to unpack the organizational charts
of agencies, which cooperate in providing incriminating information
but too often refuse to assist in discovering proof of innocence.

V
ESTABLISHING DIGITAL INNOCENCE

To some extent, all criminal trials pit the rights of the accused
against the interests of government. These conflicts are magnified,
however, when a defendant seeks information that has been gathered
as part of the national security apparatus. On the one hand, all agree
that the government must function with some level of secrecy on is-
sues of national security. This is particularly true when the informa-
tion in question could be used against the United States by foreign
powers, or when it might be exploited by terrorist organizations to
plan and carry out violent attacks. On the other hand, removing the
wall between intelligence surveillance and law enforcement has cre-
ated a troubling asymmetry in the criminal justice system. The gov-
ernment acts expeditiously to secure those records that it needs to
secure a conviction, but it may overlook or at least not pursue digital
information that undermines the prosecution. Such duplicity is in-
compatible with a fair adversarial system committed to accurate

392 See David Ingram & John Shiffman, U.S. Defense Lawyers to Seek Access to DEA Hidden
Intelligence Evidence, REUTERS, Aug. 8, 2013, available at http://www.reuters.com/article/
2013/08/08/us-dea-irs-idUSBRE9761AZ20130808.
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fact-finding consistent with the long-accepted maxim concerning er-

rors in criminal justice.393
Acknowledging that the competing values at stake are both of the
highest order, the law should evolve to meet the resulting challenges.
Among other things, we would advocate the inclusion of innocence-
protective measures within the various privacy reforms currently
under discussion in response to the NSA surveillance scandal. We are
realistic, however, and recognize that such reforms may not be forth-
coming. But this does not mean that claims of digital innocence can-
not be raised within the current legal regime. In particular, this Part
evaluates the prospects for such claims in two principal contexts:
preventing wrongful convictions and exonerating innocent inmates.
The first category of cases is primarily concerned with ensuring
that defense counsel will have access to proof of innocence prior to
trial and can present it in a meaningful fashion before the finder of
fact. Along these lines, the following considers the Classified Informa-
tion Procedures Act—which governs when and how defense counsel
can access protected federal government information—as well as the
means to secure information from private third parties and from the
United States as a third party. The second category of cases is con-
cerned with making sure that those who are wrongfully convicted have
the ability to contest their continued imprisonment based on proof of
innocence. The challenge here is the procedural bar established by
the Antiterrorism and Effective Death Penalty Act, which raises ques-
tions as to whether claims of digital innocence will free the wrongfully
convicted even though the evidence only became available as a result
of technological developments years after trial.

A. Access to Information at Trial

Imagine a defendant is charged as a participant in a bank rob-
bery. The prosecution seeks to bolster its case by using cellphone call
records to show the relationship among the actors. But it allegedly
lacks cellphone records from the actual time of the robbery, which
the defendant asserts would demonstrate that he was not at the scene
of the crime. The prosecution’s claim appears reasonable: the service
provider no longer had the records.394 While trial is pending, how-

393 See 4 WILLIAM BLACKSTONE, COMMENTARIES *352 (“[F]or the law holds, that it is
better that ten guilty persons escape, than that one innocent suffer.”); see also Letter from
Benjamin Franklin to Benjamin Vaughan (Mar. 14, 1785), in 9 THE WRITINGS OF BENJAMIN
FRANKLIN: COLLECTED AND EDITED WITH A LIFE AND INTRODUCTION 291, 293 (Albert H.
Smyth ed., 1906) (“That it is better 100 guilty Persons should escape than that one inno-
cent Person should suffer, is a Maxim that has been long and generally approved.”).
394 This hypothetical is based on Order Requiring Response from Government at 1–2,
United States v. Davis, No. 11-60285-CR-ROSENBAUM (S.D. Fla. June 10, 2013), ECF No.
786.
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ever, disclosures from the NSA scandal make it a matter of public

record that the U.S. government has stored every record of every call
made by several carriers, including the one used by the defendant.
Defense counsel then moves to compel the government to disclose
the cell-site location information that may prove the defendant’s inno-
cence. The case raises issues as to the process under which the
request for information will be reviewed and the circumstances that
might permit the defendant to prove his innocence through govern-
ment data. The following discussion is intended to show that claims
of digital innocence cannot be dismissed as asking the impossible.

1. CIPA and CIPA-like Processes

In 1980, Congress adopted a statutory framework to evaluate the
types of defense requests and government responses in situations in-
volving government secrets, such as the NSA program in the above
fact pattern.395 The Classified Information Procedures Act (CIPA)
sets out the process governing the disclosure and use in federal crimi-
nal trials of government secrets denominated as “classified informa-
tion.”396 CIPA did not create new discovery and evidentiary rules nor
did it limit those that already existed.397 Instead, the scheme seeks to
prevent unwarranted disclosure of such information, while at the
same time protecting a defendant’s constitutional rights.398
The prototypical case would involve spies who are charged with
espionage, former clandestine agents or government officials who
claimed their crimes were supported by the government, or
whistleblowers who sought to reveal government misconduct.399 In
these situations, the government invokes CIPA to inhibit the defen-
dant from disclosing classified information already in his possession.
But the government can also use CIPA to prevent defendants from
receiving classified information through the pretrial discovery pro-
cess, a context that has become relatively common in post-9/11 terror-
ism prosecutions. The CIPA procedures are supposed to provide an
opportunity for the government to make a fully informed judgment
about the cost to national security of proceeding with the case, as well

395 Classified Information Procedures Act (CIPA), 18 U.S.C. app. 3 §§ 1–16 (2012).
396 See id. § 1 (defining “Classified information”); see also Exec. Order No. 13,526, 3
C.F.R. 298 (2010) (current executive order establishing “a uniform system for classifying,
safeguarding, and declassifying national security information”).
397 See, e.g., United States v. Baptista-Rodriguez, 17 F.3d 1354, 1363 (11th Cir. 1994)
(“CIPA does not create new law governing the admissibility of evidence.”); United States v.
Yunis (Yunis II), 867 F.2d 617, 621 (D.C. Cir. 1989) (“[CIPA] creates no new rights of or
limits on discovery of a specific area of classified information.”).
398 See, e.g., United States v. O’Hara, 301 F.3d 563, 568 (7th Cir. 2002) (“[CIPA was
intended] to protect classified information from unnecessary disclosure at any stage of a
criminal trial . . . in a way that does not impair the defendant’s right to a fair trial.”).
399 See S. REP. NO. 96-823, at 1–4 (1980); H.R. REP. NO. 96-831, at 7 (1980).
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as offering possible alternatives to disclosing classified information

during discovery or trial.400
The relationship of the statutory scheme to the state secrets privi-
lege is murky—“it merely presupposes”401 a government privilege to
avoid disclosing classified information. The precise privilege at issue,
its relationship to CIPA, and the ensuing consequences have been the
subject of debate.402 Ultimately, these issues may not matter for pur-
poses of digital evidence that could provide hard proof of innocence.
As mentioned earlier, the Reynolds Court emphasized that a govern-
ment privilege cannot deny a defendant the ability to effectively
mount a defense.403 Moreover, CIPA’s legislative history made clear
that “the defendant should not stand in a worse position, because of
the fact that classified information is involved, than he would without
this Act.”404 Were it otherwise, CIPA would be in tension with the
defendant’s right to present a complete defense. The government
cannot prosecute an individual while at the same time hampering his
use of information necessary to defend himself against the prosecu-
tion.405 “Although CIPA contemplates that the use of classified infor-
mation be streamlined, courts must not be remiss in protecting a
defendant’s right to a full and meaningful presentation of his claim to
innocence.”406
To facilitate early resolution of disputes concerning classified in-
formation, section 2 of CIPA permits either party or the court to call
for a pretrial conference any time after the filing of an indictment “to
consider matters relating to classified information that may arise in
connection with the prosecution.”407 Section 6 governs hearings to
determine the use, relevance, or admissibility of classified informa-
tion, where such hearings must be held in camera on request of the
Attorney General certifying that a public proceeding may result in the

400 See, e.g., United States v. Collins, 720 F.2d 1195, 1197 (11th Cir. 1983).
401 United States v. Abu-Jihaad, 630 F.3d 102, 140 (2d Cir. 2010).
402 Compare Yunis II, 867 F.2d at 623 (“[T]he procedures [CIPA] mandates protect a
government privilege in classified information similar to the informant’s privilege . . . .”),
and United States v. Sarkissian, 841 F.2d 959, 966 (9th Cir. 1988) (“[A]rguendo . . . the
enactment of CIPA does not affect the validity of Reynolds.”), and H.R. REP. NO. 96-831, at
15 n.12 (“[I]t is well-settled that the common law state secrets privilege is not applicable in
the criminal arena.”), with United States v. Aref, 533 F.3d 72, 78–79 (2d Cir. 2008) (hold-
ing that CIPA implicates the state secrets privilege), and United States v. Klimavicius-
Viloria, 144 F.3d 1249, 1261 (9th Cir. 1998) (same), and United States v. Garey, 2004 WL
2663023 (M.D. Ga. Nov. 15, 2004) (same).
403 United States v. Reynolds, 345 U.S. 1, 12 (1953).
404 S. REP. NO. 96-823, at 9.
405 See United States v. Fernandez, 913 F.2d 148, 154 (4th Cir. 1990); cf. United States
v. Coplon, 185 F.2d 629, 638 (2d Cir. 1950) (Hand, J.) (“Few weapons in the arsenal of
freedom are more useful than the power to compel a government to disclose the evidence
on which it seeks to forfeit the liberty of its citizens.”).
406 Fernandez, 913 F.2d at 154.
407 18 U.S.C. app. 3 § 2 (2012).
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disclosure of classified information.408 Most importantly for present

purposes, section 4 addresses defense requests for discovery of infor-
mation in classified documents.409 The lower courts seem to agree
that the standard for defense discovery under CIPA is the same hurdle
to overcome other government privileges, which must give way if the
information “is relevant and helpful to the defense of an accused, or is
essential to a fair determination of a cause.”410
Section 4 states that, “upon a sufficient showing,” the judge can
authorize the government to delete specified items of classified infor-
mation from documents to be provided the defendant, to substitute a
summary of the information contained in the documents, or to substi-
tute a statement admitting relevant facts that the information would
tend to prove.411 Section 6 also deals with alternatives to government
disclosure, stating that a court may authorize a substitution for classi-
fied material “if it finds that the statement or summary will provide
the defendant with substantially the same ability to make his defense
as would disclosure of the specific classified information.”412
If substitution efforts fail, the government may still prevent the
discovery of classified information by filing an affidavit from the Attor-
ney General objecting to disclosure of the information in question.413
“Should the government do so, however, its ability to continue the
prosecution will be seriously damaged or ended.”414 Specifically, sec-
tion 6 requires the trial judge to dismiss the indictment against the
defendant or, when “the interests of justice would not be served by
dismissal,” to take other remedial action, including dismissing specific

408 Id. § 6(a). But see In re Washington Post Co., 807 F.2d 383, 393 (4th Cir. 1986).
409 18 U.S.C. app. 3 § 4.
410 Roviaro v. United States, 353 U.S. 53, 60–61 (1957); see, e.g., United States v. Aref,
533 F.3d 72, 79–80 (2d Cir. 2008) (adopting “the Roviaro standard for determining when
the Government’s privilege must give way in a CIPA case” and citing other circuits that
have adopted this standard). There is an ongoing debate as to whether the courts should
impose a higher evidentiary threshold in CIPA cases by balancing the defendant’s need for
relevant classified information against the government’s interest in national security. Com-
pare United States v. Rosen, 557 F.3d 192, 198 (4th Cir. 2009) (accepting balancing ap-
proach), and United States v. Sarkissian, 841 F.2d 959 (9th Cir. 1988) (same), with United
States v. Baptista-Rodriguez, 17 F.3d 1354, 1363–64 (11th Cir. 1994) (rejecting balancing
approach), United States v. Libby, 453 F. Supp. 2d 35, 44 (D.D.C. 2006) (same), and S.
REP. NO. 96-823, at 9 (1980) (same). But cf. United States v. Yunis (Yunis II), 867 F.2d 617,
625 (D.C. Cir. 1989) (refusing to adopt or reject balancing standard). But even those
CIPA cases acknowledging a higher evidentiary threshold have stressed that the govern-
ment’s interest in protecting national security cannot override the defendant’s right to a
fair trial. See Fernandez, 913 F.2d at 154 (discussing United States v. Smith, 780 F.2d 1102
(4th Cir. 1985) (en banc)).
411 18 U.S.C. app. 3 § 4.
412 Id. § 6(c)(1).
413 Id. § 6(e)(1).
414 United States v. Collins, 720 F.2d 1195, 1201 (11th Cir. 1983).
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charges, finding against the government on issues related to the classi-

fied information, and striking or precluding witness testimony.415
Assuming discovery is forthcoming, CIPA safeguards classified
information through protective orders and security procedures.
Upon motion by the government, section 3 requires the court to issue
a protective order against disclosure of any classified information pro-
vided by the government to the defendant.416 Pursuant to section 9,
the Chief Justice of the Supreme Court prescribed rules to prevent the
unauthorized disclosure of classified information in the custody of
federal courts.417 Under these rules, the courts appoint security
officers who are responsible for facilities and handling of documents
in cases involving classified matters. Among other things, a court may
require the defense to review classified information in a secure room
(“Sensitive Compartmented Information Facility” or SCIF), typically
located in the courthouse. Other than judges, court personnel do not
have access to classified materials without obtaining a security clear-
ance from the executive branch.418
Section 8 concerns the actual introduction of classified informa-
tion into evidence. Recognizing that “classification is an executive,
not a judicial function,”419 the section explicitly states that the intro-
duction of classified information in court does not change its classifi-
cation status.420 Unless fairness requires otherwise, a court may admit
into evidence only part of the writing, recording, or photograph in
question, or it may admit the entire item with redactions of classified
information.421 Finally, section 8 allows the government to object to
any question or line of inquiry that might result in the witness divulg-
ing classified information not previously determined to be admissi-
ble.422 The court is then required to take appropriate action to

415 18 U.S.C. app. 3 § 6(e)(2). Under CIPA § 7, the government can take an interlocu-
tory appeal from district court rulings authorizing disclosure of classified information, im-
posing sanctions for nondisclosure of such information, or denying protective orders. See
id. § 7(a); see also United States v. Clegg, 740 F.2d 16, 18 (9th Cir. 1984) (holding that
appellate court has jurisdiction over disclosure of classified information to the public).
The appeal may occur before or during trial and regardless of whether the defendant has
been placed in jeopardy. The issue must be reviewed on an expedited basis by the appel-
late court, which is authorized to dispense with written briefs by the parties and the issu-
ance of a written opinion in rendering its judgment. See 18 U.S.C. app. 3 § 7(b).
416 18 U.S.C. app. 3 § 3 (2012).
417 See Security Procedures Established Pursuant to Public Law 96-456, 94 Stat. 2025, by
the Chief Justice of the United States for the Protection of Classified Information (1981)
(available in notes following 18 U.S.C. app. 3 § 9).
418 See United States v. Smith, 899 F.2d 564, 567 (6th Cir. 1990).
419 S. REP. NO. 96-823, at 10 (1980).
420 See 18 U.S.C. app. 3 § 8(a).
421 See id. § 8(b).
422 See id. § 8(c).
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determine whether the anticipated response can be admitted without

jeopardizing classified information.423
To be sure, the CIPA process can present difficult questions. For
instance, protective orders under CIPA may require defendants and
their counsel to obtain security clearances from the government
before being allowed to review classified information.424 Invariably,
accused spies and terrorists will be deemed ineligible for security
clearance.425 Defense counsel may also be ineligible for security clear-
ance, or, on occasion, they may be unwilling to submit to a back-
ground check.426 In these circumstances, courts have appointed
counsel with the requisite security clearance to handle issues involving
classified information. Cleared counsel may be prevented from re-
vealing classified information to either uncleared counsel or the
defendant.427 Although this does generate troubling constitutional is-
sues, the most important point for present purposes is that CIPA
would envision access for some defense representative to investigate a
claim of digital innocence. Even circumscribed access to data proving
innocence is better than none.
Substitutions under CIPA raise important questions as well. In
digital innocence cases, an agreeable substitution format may be rela-
tively straightforward. In the hypothetical provided at the beginning
of this section—a defendant who seeks cellphone call records as proof
that he was not at the site of the robbery—it is easy to imagine that
any exculpatory data could be provided in an appropriately redacted
document or through an agreed-upon stipulation or summary. Other
potential pieces of evidence may prove more difficult because they
contain information that might reveal the sources and methods of

423 See id.

424 See United States v. Moussaoui, No. CR. 01-455-A, 2002 WL 1987964, at *1 (E.D. Va.
Aug. 23, 2002) (noting prior protective order that “prohibits the defendant from accessing
classified information unless he first obtains the necessary security clearance from the De-
partment of Justice, or other governmental or Court approval”); United States v. Rezaq,
156 F.R.D. 514, 524 (D.D.C. 1994) (providing reasons why an accused terrorist “has never
had, nor is ever likely to have, a security clearance”), vacated in part, 899 F. Supp. 697
(D.D.C. 1995); see also 28 C.F.R. § 17.41(b) (2013).
425 This requirement is not unique to the defense. Law clerks, secretaries, bailiffs, and
other court staff may be required to undergo security clearances as well. See, e.g., United
States v. Smith, 899 F.2d 564, 567 (6th Cir. 1990). Indeed, judges hearing civil suits chal-
lenging the NSA’s warrantless mass surveillance program were not allowed to possess the
parties’ filings but instead had to make appointments to review the documents. The
judges were even directed to write their decisions on computers supplied by the Depart-
ment of Justice. See Adam Liptak, Secrecy at Issue in Suits Opposing Domestic Spying, N.Y.
TIMES, Jan. 26, 2007, at A1.
426 See, e.g., United States v. Abdi, 498 F. Supp. 2d 1048, 1087 (S.D. Ohio 2007) (de-
fense counsel unwilling to submit to background check); United States v. Al-Arian, 267 F.
Supp. 2d 1258, 1266 (M.D. Fla. 2003) (same).
427 See, e.g., In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 128
(2d Cir. 2008); United States v. Abu Ali, 528 F.3d 210, 253–54 (4th Cir. 2008).
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government surveillance. For instance, the government’s security in-

terest in intercepted communications may rest “not so much in the
contents of the conversations, as in the time, place, and nature of the
government’s ability to intercept the conversations at all.”428 At the
same time, however, it may be necessary to place the data in context,
attributing statements to their sources or phrasing them as quotations,
to ensure that the trier of fact can give the information its full weight
as evidence of innocence.429 As the Supreme Court has said, “A syllo-
gism is not a story, and a naked proposition in a courtroom may be no
match for the robust evidence that would be used to prove it.”430
The CIPA procedures have been understood as providing sub-
stantial latitude to protect both national security and basic constitu-
tional rights. A substitution does not have to be of “precise, concrete
equivalence,” the House Report on CIPA emphasized, and the “fact
that insignificant tactical advantages could accrue to the defendant by
the use of the specific classified information should not preclude the
court from ordering alternative disclosure.”431 Rather, as the Fourth
Circuit has noted, the basic purpose of a CIPA substitution is “to place
the defendant, as nearly as possible, in the position he would be in if
the classified information . . . were available to him.”432 More gener-
ally, courts have many tools available to protect classified information
disclosed to the defense as part of a digital innocence claim. When
national security is at stake, documents containing classified informa-
tion can be sealed;433 gag orders can be placed on the parties;434
pretrial hearings can be closed to the public;435 witness identities can
be protected by pseudonyms;436 and even proceedings in open court
can employ special procedures to prevent disclosure of government
secrets.437 Again, this Article does not advocate these procedures,

428 United States v. Yunis (Yunis II), 867 F.2d 617, 623 (D.C. Cir. 1989).
429 See United States v. Rezaq, 134 F.3d 1121, 1142 (D.C. Cir. 1998) (stating that plac-
ing facts in context should work to protect the interests of the defendant).
430 Old Chief v. United States, 519 U.S. 172, 189 (1997).
431 H.R. REP. NO. 96-1436, at 12–13 (1980).
432 United States v. Moussaoui, 382 F.3d 453, 477 (4th Cir. 2004).
433 See, e.g., United States v. Aref, 533 F.3d 72, 77 (2d Cir. 2008) (describing court’s
denial and grant of motions under seal); United States v. Ressam, 221 F. Supp. 2d 1252,
1259 (W.D. Wash. 2002) (discussing statutory provisions that permit sealing of information
sensitive to national security).
434 See, e.g., United States v. Koubriti, 305 F. Supp. 2d 723, 728 (E.D. Mich. 2003) (issu-
ing gag order); United States v. McVeigh, 931 F. Supp. 756, 757 (D. Colo. 1996) (describ-
ing gag order).
435 See, e.g., United States v. Abu Marzook, 412 F. Supp. 2d 913, 915 (N.D. Ill. 2006)
(granting government’s motion to close hearing to the public).
436 See, e.g., United States v. El-Mezain, 664 F.3d 467, 491 (5th Cir. 2011) (permitting
use of pseudonyms for witnesses in certain cases).
437 See, e.g., United States v. Zettl, 835 F.2d 1059, 1063 (4th Cir. 1987) (describing
procedures used to avoid disclosing government secrets during proceedings in open
court).
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which raise important constitutional concerns (mostly for the defen-

dant). Instead, it simply points out the various means by which judges
can protect state secrets. Although the government may be worried
about revealing its methods of surveillance, the federal courts have
decades of experience protecting not just information but also the
systems that generate such information.438
It is conceivable that digital innocence claims could face an en-
tirely different challenge: the information sought from government-
controlled Big Data is considered privileged but is not classified, and
thus, it does not fit cleanly within CIPA. Nonetheless, courts retain
the authority to analyze a government claim of privilege and the possi-
bility of substitutions under procedures styled after CIPA. On a show-
ing of “good cause,” for instance, Rule 16 of the Federal Rules of
Criminal Procedure allows a court to “deny, restrict, or defer discovery
or inspection, or grant other appropriate relief.”439 According to the
Advisory Committee’s notes on Rule 16, the limitation was intended to
ensure, among other things, “the protection of information vital to
the national security,” permitting the government to make the show-
ing in camera when “matters of national security are involved.”440
Similarly, a district court decision recognized a statutory privilege
for the NSA under the National Security Agency Act,441 which may be
invoked to protect unclassified information.442 The court went on to
analyze the protected information under a CIPA-type process.443 An-
other example comes from the prosecution of the aforementioned
“20th Hijacker,” Zacarias Moussaoui, who requested pretrial access to
enemy combatants detained in Guantanamo Bay and their production
as witnesses at trial. CIPA did not apply in this context, but both the
district court and the Fourth Circuit relied upon the statutory provi-
sions because CIPA provided “a useful framework” for whether the
enemy combatant witnesses would be relevant and helpful to Mous-
saoui’s defense and whether substitutions would be appropriate.444

438 See United States v. Lopez, 328 F. Supp. 1077, 1086 (E.D.N.Y. 1971) (describing
efforts taken to prevent disclosure of sensitive programmatic information in a criminal
case).
439 FED. R. CRIM. P. 16(d)(1).
440 Id. 16(e) and advisory committee’s notes.
441 See National Security Agency Act of 1959, § 6(a), 50 U.S.C. § 3605 (2006 & Supp. V
2011) (stating that nothing in statute, with limited exceptions, should be construed to
require disclosure from the NSA).
442 See United States v. Drake, No. RBD 10-181, 2011 WL 2175007, at *5 (D. Md. June
2, 2011) (“Section 6(a) . . . provides the NSA with a statutory privilege protecting against
the disclosure of information relating to its activities . . . .”).
443 See id. at *3–4 (beginning CIPA analysis).
444 See United States v. Moussaoui, 382 F.3d 453, 471 n.20 (4th Cir. 2004) (stating that
even though CIPA does not apply, it still provides a useful framework for evaluating defen-
dant access to enemy combatant witnesses); United States v. Moussaoui, 333 F.3d 509, 513
(4th Cir. 2003) (discussing the district court’s application of the CIPA procedures).
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1052 CORNELL LAW REVIEW [Vol. 99:981

There are constitutional limits to these and other procedures,445

and consistent with our standing caveat, we do not necessarily endorse
CIPA and CIPA-like approaches. In fact, we harbor some misgivings
about these processes. Of particular concern here is a maneuver not
required by law but one that has become a standard government
practice: filing materials ex parte in response to defense discovery
motions.446 Under CIPA section 4, the court may authorize the gov-
ernment to make submissions to be reviewed by the court alone,447
but nothing in the law’s language or history suggests that ex parte
filings are mandatory. To the contrary, section 4 was intended to clar-
ify a court’s authority under Rule 16 of the Federal Rules of Criminal
Procedure448—which, in turn, explicitly rejected language that would
have made ex parte filings a matter of right449 and instead embodied
the principle that “ex parte proceedings are disfavored and not to be
encouraged.”450
The vices of ex parte proceedings are well known, such as the
tendency to undermine the appearance if not reality of fairness and
impartiality in judicial decision making.451 In an adversary system, the
ability of counsel to participate in proceedings is necessary not merely
to present the defense perspective but also to correct or contradict the
information and reasoning forwarded by a partisan in the process
(i.e., the prosecutor).452 Ex parte proceedings carry an “enormous
risk of error,” such that “the very foundation of the adversary process

445 See Waller v. Georgia, 467 U.S. 39, 46 (1984) (a public trial is a guarantee provided
by both the First and Sixth Amendments); United States v. Aref, 533 F.3d 72, 83 (2d Cir.
2008) (transparency in court judgments is essential to constitutional system of checks and
balances); United States v. Abu Ali, 528 F.3d 210, 255 (4th Cir. 2008) (hiding evidence
from the defendant, but giving it to the jury, is a violation of the Confrontation Clause).
446 See Joshua L. Dratel, Section 4 of the Classified Information Procedures Act: The Growing
Threat to the Adversary Process, 53 WAYNE L. REV. 1041, 1042–47 (2007).
447 18 U.S.C. app. 3 § 4 (2012).
448 See S. REP. NO. 96-823, at 6 (1980).
449 See FED. R. CRIM. P. 16 advisory committee notes (“The Committee changed the
[proposed] mandatory language to permissive language. A Court may, not must, conduct
an ex parte proceeding if a party so requests.”).
450 H.R. REP. NO. 94-247, at 16 (1975).
451 See United States v. Carmichael, 232 F.3d 510, 517 (6th Cir. 2000) (“[E]x parte
communications with the court are an extraordinarily bad idea [particularly in criminal
cases because] giving the government private access to the ear of the court is not only ‘a
gross breach of the appearance of justice,’ but also a ‘dangerous procedure.’” (quoting
United States v. Minsky, 963 F.2d 870, 874 (6th Cir. 1992))); American-Arab Anti-Discrimi-
nation Comm. v. Reno, 70 F.3d 1045, 1069 (9th Cir. 1995) (noting that judges “are neces-
sarily wary of one-sided process” and “fairness can rarely be obtained by secret, one-sided
determination”) (internal quotation marks omitted); Abourezk v. Reagan, 785 F.2d 1043,
1060–61 (D.C. Cir. 1986) (stating that party access to case evidence is a hallmark of Ameri-
can adjudication and “serves to preserve both the appearance and the reality of fairness in
the adjudications of United States courts”); see also MODEL CODE OF JUDICIAL CONDUCT
Canon 3(B)(7) (2004) (setting out a general rule against ex parte communications).
452 See United States v. Abuhamra, 389 F.3d 309, 322–23 (2d Cir. 2004).
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assumes that use of undisclosed information will violate due pro-

cess.”453 At the pretrial stage of discovery pursuant to CIPA section 4,
the court alone does not have the basis to assess the veracity of the
government’s contentions, which is only exacerbated by the technical
complexity of information relevant to a claim of digital innocence.454
Nor can judges be expected to appreciate all the facts and issues that
could impact defense claims of innocence. In rejecting ex parte
review of electronic surveillance that may have been illegal, the
Supreme Court once observed:
An apparently innocent phrase, a chance remark, a reference to
what appears to be a neutral person or event, the identity of a caller
or the individual on the other end of a telephone, or even the man-
ner of speaking or using words may have special significance to one
who knows the more intimate facts of an accused’s life. And yet that
information may be wholly colorless and devoid of meaning to one
less well acquainted with all relevant circumstances. . . . [T]he task
is too complex, and the margin for error too great, to rely wholly on
the in camera judgment of the trial court to identify [the relevant
records] . . . .
....
Adversary proceedings will not magically eliminate all error,
but they will substantially reduce its incidence by guarding against
the possibility that the trial judge, through lack of time or unfamili-
arity with the information contained in and suggested by the materi-
als, will be unable to provide the scrutiny [demanded].455
Even more problematic is relying upon the prosecution—the ad-
vocate for conviction—to make the case for exculpatory evidence.456
Indeed, candid prosecutors will concede that they are not in a posi-
tion to assess the materiality of information for the defense.457 As dis-
cussed earlier, the government has a less-than-stellar track record of
truthfulness when it comes to its mass surveillance programs,458 and
the law enforcement practice of “parallel construction” is nothing less

453 American-Arab Anti-Discrimination Comm., 70 F.3d at 1069–70.

454 See United States v. Abu Marzook, 412 F. Supp. 2d 913, 921 (N.D. Ill. 2006) (“It is a
matter of conjecture whether the court performs any real judicial function when it reviews
classified documents . . . . Without the illumination provided by adversarial challenge and
with no expertness in the field, . . . the court has no basis on which to test the accuracy of
the government’s claims.” (quoting Stein v. Dep’t of Justice, 662 F.2d 1245, 1254 (7th Cir.
1981) (internal quotation marks omitted))).
455 Alderman v. United States, 394 U.S. 165, 182–84 (1969).
456 See DiSimone v. Phillips, 461 F.3d 181, 195 (2d Cir. 2006) (stating that to allow the
prosecution to assess the value of exculpatory information “would be to appoint the fox as
henhouse guard”).
457 See Panel Discussion: Criminal Discovery in Practice, 15 GA. ST. U. L. REV. 781, 785–86
(1999) (U.S. Attorney acknowledging the difficulty in “convincing my Assistant U.S. Attor-
neys that they often don’t know what may be material to the defense”).
458 See supra notes 285–91, 304–05 and accompanying text. R
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1054 CORNELL LAW REVIEW [Vol. 99:981

than a fraud on the court.459 Most telling of all are the FISC opinions
exposing the government’s serial misrepresentations,460 none of
which resulted in the court stopping a mass surveillance program.461
Such prevarications, and the spy court’s failure to discipline the gov-
ernment for them, reinforce the argument against secret ex parte
proceedings.
The incidents also help make the case for installing a civil liber-
ties advocate in the FISC to argue against the government’s position,
which has been recommended by President Obama’s blue-ribbon ad-
visory committee462 and endorsed by the President himself.463 When
the issue is discovery under CIPA section 4, however, the process al-
ready provides for an advocate in the form of security-cleared defense
counsel. In Daoud, the government offered no meaningful response
to the contention that national security interests are not implicated
when defense counsel has the required security clearances, other than
to say that it had never been done before.464 “That response is unper-
suasive where it is the government’s claim of privilege to preserve
national security that triggered this proceeding,” the court opined,
finding that “the probable value of disclosure and the risk of nondis-
closure outweigh the potential danger of disclosure to cleared coun-
sel.”465 Unless CIPA is a charade, security-cleared counsel should be
allowed to participate in the discovery process in order to secure
exculpatory evidence.

2. Obtaining Information from Private Third Parties

There is another way for the wrongfully accused and convicted to
access Big Data. The government seeks the vast majority of its infor-
mation from telecommunications firms and ISPs. These commercial
enterprises maintain the comprehensive user records that feed pro-
grams like PRISM. So rather than seeking exculpatory evidence from
the government, defendants could obtain this information directly

459 See supra notes 387–92 and accompanying text. R

460 See supra note 306 and accompanying text. R
461 See Jennifer S. Granick & Christopher J. Sprigman, FISA Court Rolls Over, Plays Dead,
FORBES (Aug. 28, 2013, 10:50 AM), http://www.forbes.com/sites/jennifergranick/2013/
08/28/fisa-court-rolls-over-plays-dead/.
462 See PRG REPORT, supra note 9, at 36, 203–05. R
463 See Obama, supra note 12 (“To ensure that the court hears a broader range of R
privacy perspectives, I am also calling on Congress to authorize the establishment of a
panel of advocates from outside government to provide an independent voice in signifi-
cant cases before the Foreign Intelligence Surveillance Court.”).
464 United States v. Daoud, No. 12-cr-723, 2014 WL 321384, at *2 (N.D. Ill. Jan. 29,
2014). As discussed earlier, the Daoud case involved the analogous situation of a FISA
suppression motion in which the government sought to file materials ex parte and in
camera. See supra notes 295–96 and accompanying text. R
465 Daoud, 2014 WL 321384, at *2.
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from third-party Internet intermediaries.466 Although national secur-

ity may not be a concern when pursuing information from ISPs,
defendants still must overcome restrictions and hurdles to access the
data.
As a starting point, defendants may be able to access social media
data merely by examining what is publicly available. Social media is
built on widespread sharing. Consider a Facebook wall: the account
of the wall owner not only contains information on the user but also
information regarding any of the other social network users who have
permitted their content to be published to friends. Access to any one
of a number of accounts will yield the information. Defense attorneys
must be cautious to abide by ethical guidelines barring the use of de-
ception in seeking social media connections that might reveal such
information (such as deceptively seeking “friend” status on Facebook
to obtain semi-private information), but broad-based sophisticated
searches of publicly available information do not normally raise such
concerns.467
As for nonpublic or formerly public information, criminal
defendants usually seek relevant materials through a subpoena.468
Onerous or oppressive subpoenas can be quashed or limited, but the
advent of fast software forensic tools means that producing even quite
large amounts of data is not presumptively burdensome.469 Once a
party has received a subpoena, the party must comply, move to quash,
or face a motion to compel and the possibility of being held in con-
tempt of court.470
Silicon Valley firms uniformly, and usually successfully, resist such
subpoenas pursuant to the Stored Communications Act (SCA), codi-
fied at 18 U.S.C. §§ 2702 and 2703. These provisions, which are part
of the larger Electronic Communications Protection Act, regulate the
ability of Internet intermediaries to release the contents of stored
electronic communications. The SCA is based on the technological
balance between client and server that existed at the time of the law’s
passage, when users generally downloaded information from e-mail
servers and accessed it locally.471 More than a quarter-century later,
this structure is not only outdated, it has been completely reversed as

466 See Zwillinger & Genetski, supra note 42, at 585 (stating that certain exceptions R
permit a criminal defendant to obtain his own messages or messages intended for him).
467 See Shirin Chahal, Note, Balancing the Scales of Justice: Undercover Investigations on
Social Networking Sites, 9 J. TELECOMM. & HIGH TECH. L. 285, 306 (2011) (detailing ethical
restrictions on defense use of deception to gain access to social media information).
468 FED. R. CRIM. P. 17(c).
469 See id.
470 See id.
471 See Patricia L. Bellia, Surveillance Law Through Cyberlaw’s Lens, 72 GEO. WASH. L. REV.
1375, 1396–97 (2004).
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1056 CORNELL LAW REVIEW [Vol. 99:981

a result of cloud computing that permits more secure access of con-

tent on more devices. Today, the SCA’s presumption—that content
left on the server is unimportant or abandoned—is incorrect.
Because of this basic technological change, the balance struck by
the SCA between account holders and the government now produces
a variety of unintended consequences, including its largely underex-
plored impact on the ability of civil parties and criminal defendants to
access information that has migrated from filing cabinets to file serv-
ers.472 While the SCA enumerates provisions for disclosure of this in-
formation to government entities, it is silent on access by criminal
defendants and civil litigants. Courts have read this silence as prohib-
iting access by these parties,473 and yet the underlying obligation to
comply with a subpoena remains. This lack of clarity has caused con-
fusion and excess litigation when defendants seek information to
which they have a constitutional right in order to prepare their case,
with ISPs resisting on the ground that the disclosure of communica-
tions content is unlawful.474
Section 2702 prohibits Internet intermediaries from releasing the
contents of stored electronic communications,475 where an “elec-
tronic communication” is defined as “any transfer of signs, signals,
writing, images, sounds, data, or intelligence of any nature transmit-
ted in whole or in part by a wire, radio, electromagnetic, photo-elec-
tronic or photo-optical system that affects interstate or foreign
commerce.”476 Intermediaries are divided into two now-archaic clas-
ses based on what they do with electronic communications. An “elec-
tronic communication service” is defined as “any service which
provides to users thereof the ability to send or receive wire or elec-
tronic communications,” while a “remote computing service” is one
that engages in the “provision to the public of computer storage or
processing services by means of an electronic communications sys-
tem.”477 Although the advance of cloud computing and the general
progress of technology have rendered these categories largely obso-
lete, the distinction has real differences for the means by which the
content may be obtained.478

472 See Zwillinger & Genetski, supra note 42, at 579–81 (stating that the SCA is broad R
enough to include e-mails stored on ISP servers that are not in temporary storage).
473 See id. at 580 (discussing Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004)).
474 See id. (detailing the need for a search warrant to access stored communications).
475 See 18 U.S.C. § 2702(a) (2012); see also Theofel, 359 F.3d at 1076–77 (interpreting
section 2702(a)).
476 See 18 U.S.C. § 2510(12).
477 Id. §§ 2510(15), 2711(2).
478 See Zwillinger & Genetski, supra note 42, at 581 n.62 (“The distinction between R
materials in ‘electronic storage,’ and materials that may just be stored electronically is
crucial.”).
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There are limited exceptions to the prohibition on disclosing

content to private parties. Of interest to criminal defendants are two
exceptions contained within section 2702, which permit disclosure of
the contents of communication to “an addressee or intended recipi-
ent of such communication” or “with the lawful consent of the origi-
nator or an addressee or intended recipient of such communication,
or the subscriber in the case of remote computing service.”479 Section
2702 also references non-content in the form of customer records and
other subscriber information.480 Although Internet intermediaries
are barred under this provision from providing any “record or other
information pertaining to a subscriber to or customer of such ser-
vice . . . to any governmental entity,”481 records or information “not
including the contents of communications”482 may be provided “to
any person other than a governmental entity.”483
Government entities may access both content and non-content
information pursuant to the mandatory disclosure provisions of sec-
tion 2703. Obtaining the content of communications stored for less
than 180 days requires a warrant,484 while a subpoena will suffice for
content stored for a longer period of time.485 As a consequence, pro-
curing records and information (although not content) may be sim-
pler for a nongovernment entity through section 2702 than it is for a
government entity through section 2703. Obtaining content is very
difficult for nongovernment entities, however, with the only clear path
being the consent of the originator, addressee, recipient, or
subscriber.486
With respect to Big Data, the SCA’s rules have interesting interac-
tions with new forms of storing and accessing data. The SCA does not
prohibit the release to a defendant of information about him or her-
self, including content information.487 Given Big Data tracking, this
can be a treasure trove of material for the defense. Consider, for ex-
ample, the data collected about a user for the purposes of targeted
advertising. As discussed earlier, most users’ physical location or loca-
tion-based IP address are constantly tracked by advertisers. That infor-

479 18 U.S.C. § 2702(b)(1), (3).

480 See id. § 2702(a)(3).
481 Id.
482 Id.
483 Id. § 2702(c)(6).
484 Id. § 2703(a).
485 Id. § 2703(b)(1)(B).
486 See Zwillinger & Genetski, supra note 42, at 585 (“Even a close examination of all R
three of the provisions cited in this exception reveals no pathway for anyone other than a
government entity to compel disclosures of contents of customer communications.”).
487 See 18 U.S.C. § 2702(b)(1), (b)(3), (c)(2); Crispin v. Christian Audigier, Inc., 717
F. Supp. 2d 965, 972 n.16 (C.D. Cal. 2010) (describing when an electronic communication
service (ECS) provider may divulge the contents of a communication).
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1058 CORNELL LAW REVIEW [Vol. 99:981

mation can serve as a comprehensive record of where the defendant

was on a particular day and time. Companies may still object, of
course, but they will be unlikely to prevail in such straightforward re-
quests for production. When Yahoo refused to provide a defendant
with the contents of his own e-mail accounts, for instance, the court
noted that a motion to compel production from Yahoo would be the
next best step to obtain the data.488
More difficult will be attempts to obtain content information that
does not fall under the defendant’s own consent exceptions in section
2702. The antiquated SCA framework contemplates that parties will
seek disclosure directly from senders or recipients rather than from
an ISP.489 Under this framework, the defendant could locate the rele-
vant originator or recipient by accessing non-content identifying in-
formation, such as an IP address, and then seek production
directly.490 Changes in technology make this problematic, however.
Even the originator or recipient may no longer have a deleted text
message or may not remember a password to an old social media ac-
count. Moreover, much cloud data only barely touches the local com-
puter. For instance, Facebook accounts are not stored on a user’s
hard drive.
Although courts have avoided the question of whether the SCA’s
lack of an exception for a criminal defendant would impermissibly
impact his confrontation and compulsory process rights, there has
been a more robust discussion of the pure statutory issue in civil cases.
Courts agree that the SCA creates no exception for civil subpoenas
directed at third-party ISPs or social networks. Based on the seminal
case of Crispin v. Christian Audigier, Inc., a consensus has evolved that
the statute does not inherently permit an exception for response to a
court subpoena.491 But where such an exception does exist—most no-
tably, the “lawful consent” exception—courts have been willing to

488 See United States v. Amawi, 552 F. Supp. 2d 679, 680 (N.D. Ohio 2008) (“[M]oving
to compel disclosure from the providers directly does seem to be the more appropri-
ate . . . route for the defendant to take.”).
489 See, e.g., O’Grady v. Superior Court, 44 Cal. Rptr. 3d 72, 88–89 (Cal. Ct. App. 2006)
(stating that prohibition of discovery from ISPs imposes no new burdens on litigants and
encourages the development of digital communications); Facebook, Inc. v. Aguayo-Gomez,
No. A13-0579 (Minn. Ct. App. May 1, 2013) (granting writ of prohibition stopping district
court’s order to compel disclosure by Facebook).
490 See, e.g., Amawi, 552 F. Supp. 2d at 680.
491 717 F. Supp. 2d at 975; see Mintz v. Mark Bartelstein & Assocs., Inc., 885 F. Supp. 2d
987, 991 (C.D. Cal. 2012); Flagg v. City of Detroit, 252 F.R.D. 346, 350 (E.D. Mich. 2008)
(“[A]s noted by the courts and commentators alike, § 2702 lacks any language that explic-
itly authorizes a service provider to divulge the contents of a communication pursuant to a
subpoena or court order.”); Viacom Int’l Inc. v. Youtube Inc., 253 F.R.D. 256, 264
(S.D.N.Y. 2008); In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 611
(E.D. Va. 2008); O’Grady, 44 Cal. Rptr. 3d at 89.
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craft relief that satisfies the SCA and makes sure that parties receive
discovery to which they are entitled.492
In civil cases, parties often seek the communications, records, or
social media information of the opposing party.493 Discovery of this
sort of information has become routine, with the request directed at
the opposing party rather than at the service provider.494 For discov-
ery purposes, the information is deemed to be in the control of the
party required to produce it.495 So, for example, plaintiffs whose
social media posts contradict their personal injury claims are usually
required to consent to the social network provider’s disclosure of ac-
count information and posts.496
Courts make sure that such social network access is not a mere
fishing expedition by, for instance, restricting access and discovery by
time or by subject.497 But they do order plaintiffs to consent to the
access if there is a basis for the request.498 As noted by the court in

492 See, e.g., Juror No. One v. Superior Court, 142 Cal. Rptr. 3d 151, 156 (Cal. Ct. App.
2012) (“One exception is recognized where the customer or subscriber has given consent
to the disclosure.”); see also 18 U.S.C. § 2702(b)(3) (“A provider . . . may divulge the con-
tents of a communication . . . with the lawful consent of the originator or an addressee or
intended recipient of such communication . . . .”).
493 See Offenback v. L.M. Bowman, Inc., No. 1:10-CV-1789, 2011 WL 2491371 (M.D. Pa.
June 22, 2011); Levine v. Culligan of Florida, Inc., No. 50-2011-CA-010339-XXXXXMB,
2013 WL 1100404, at *3 (Fla. Cir. Ct. Jan. 29, 2013) (“Similarly, courts seem to be in agree-
ment that the [SCA] prohibits records from being subpoenaed directly from Facebook and
other social networking sites. However, in Florida, in certain circumstances, courts may
require a plaintiff to provide a signed authorization for the production of relevant social
media discovery to allow an opposing party to obtain those records directly.” (citations
omitted)); EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010);
Romano v. Steelcase Inc., 907 N.Y.S.2d 650, 657 (Sup. Ct. 2010); Zimmerman v. Weis Mar-
kets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Ct. Com. Pl. May 19, 2011); McMillen v.
Hummingbird Speedway, Inc., No. 113-2010 CD, 2010 WL 4403285 (Pa. Ct. Com. Pl. Sept.
9, 2010).
494 See, e.g., Romano, 907 N.Y.S.2d at 651; Largent v. Reed, No. 2009-1823, 2011 WL
5632688, at *11 (Pa. Ct. Com. Pl. Nov. 8, 2011) (“Crispin is distinguishable. In that case,
the defendants sought information via subpoena to Facebook and other social networking
sites. In this case, [defendant] seeks the information directly from [plaintiff].”); Zimmer-
man, 2011 WL 2065410; McMillen, 2010 WL 4403285.
495 See supra note 494. R
496 See supra notes 491–93 and accompanying text. R
497 See, e.g., Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 (E.D. Mich. 2012) (re-
jecting social media discovery request as overbroad); Levine, 2013 WL 1100404, at *4 (refus-
ing access to Facebook information where defendant “failed to establish a factual predicate
with respect to the relevance [sic] of the evidence” and finding that the defendant “essen-
tially sought permission to conduct ‘a fishing expedition’ into plaintiff’s Facebook account
based on the mere hope of finding relevant evidence” (quoting McCann v. Harleysville Ins.
Co. of New York, 910 N.Y.S.2d 614 (App. Div. 2010)) (internal quotation marks omitted));
see also Winchell v. Lopiccolo, 954 N.Y.S.2d 421, 424 (Sup. Ct. 2012) (finding defendant’s
request for unrestricted access to social media accounts was overbroad).
498 See Flagg v. City of Detroit, 252 F.R.D. 346, 363 (E.D. Mich. 2008) (“[I]t is not an
‘oxymoron’ to conclude, under the particular circumstances presented here, that a party
may be compelled to give its consent. It is a necessary and routine incident of the rules of
discovery that a court may order disclosures that a party would prefer not to
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1060 CORNELL LAW REVIEW [Vol. 99:981

O’Grady v. Superior Court, “[w]here a party to the communication is

also a party to the litigation, it would seem within the power of a court
to require his consent to disclosure on pain of discovery sanctions.”499
Under the cases lies a broad streak of rough fairness: when a personal
injury plaintiff brings allegations that may be disproved by evidence
over which she exercises some control via her consent to disclosure,
the plaintiff must exercise this power to make the evidence available
to the other party. The upshot is that while the SCA is held to bar
direct subpoenas to service providers, the problem is vastly amelio-
rated in practice.
This solution seems readily applicable to claims of digital inno-
cence. If the government chooses to prosecute, it is obliged to provide
access to information not only within its immediate possession but
also within its reach. This argument carries even greater force in
criminal prosecutions. Criminal cases implicate strong constitutional
interests vindicated by providing a reasonable process for accessing
potentially exonerating evidence. Moreover, prosecutors bear a
higher burden of accuracy and care than do civil plaintiffs. While tort
and contract litigants are free to be as partisan as the rules of civil
procedure and ethics allow, prosecutors have a special obligation to
support the truth-seeking functions of the court and a “duty to refrain
from improper methods calculated to produce a wrongful
conviction.”500
The law in this area is developing rapidly, and the decisions are
often unpublished because they relate to discovery disputes in cases
that often settle. Nonetheless, there appears to be movement on this
front toward ordering access. In Juror Number One v. Superior Court, a
California appellate court upheld a trial judge’s order requiring a ju-
ror to consent to defense counsel’s access of his Facebook profile.501
The court referenced the SCA bar, the lawful consent exception, and
the judicial authority to order consent for purposes of discovery.502

make. . . . [T]his power of compulsion encompasses such measures as are necessary to

secure a party’s compliance with its discovery obligations. In this case, the particular de-
vice that the SCA calls for is ‘consent,’ and [d]efendant . . . has not cited any authority for
the proposition that a court lacks the power to ensure that this necessary authorization is
forthcoming from a party with the means to provide it. Were it otherwise, a party could
readily avoid its discovery obligations by warehousing its documents with a third party
under strict instructions to release them only with the party’s ‘consent.’”).
499 O’Grady v. Superior Court, 44 Cal. Rptr. 3d 72, 88 (Cal. Ct. App. 2006); see also In re
Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 613 n.5 (E.D. Va. 2008) (de-
tailing discovery options that would avoid discovery sanctions).
500 Berger v. United States, 295 U.S. 78, 88 (1935).
501 See 142 Cal. Rptr. 3d 151, 153 (Cal. Ct. App. 2012).
502 See id. at 155–56 (“[T]he SCA creates a set of Fourth Amendment-like protections
that limit both the government’s ability to compel ISP’s to disclose customer information
and the ISP’s ability to voluntarily disclose it. . . . One exception is recognized where the
customer or subscriber has given consent to the disclosure.”).
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Moreover, it noted the reasoning in O’Grady and other cases that a

judge’s “power of compulsion encompasses such measures as are
necessary to secure a party’s compliance with its discovery obligations.
In this case, the particular device that the SCA calls for is
‘consent’ . . . .”503 Although the order in Juror Number One focused on
a juror, the reasoning of O’Grady is not so constrained and has been
instrumental in persuading other courts to direct discovery requests to
the person in control of the information.
Unsurprisingly, Facebook has subsequently received discovery
orders in criminal cases based on the precedent of Juror Number One.
In a 2013 case, for instance, the trial court “require[d] Facebook to
disclose the content of an alleged crime victim’s Facebook communi-
cations” in response to a defense subpoena.504 Upon receiving
Facebook’s response, the trial court asked the defendant to respond
to the claim that the information would be available by way of an or-
der directed to the alleged crime victim—precisely the path described
above.505 The defendant withdrew the subpoena, mooting the re-
quest, and the court denied Facebook’s request to adjudicate the
question.506
There are some additional wrinkles as these discovery disputes
unfold. Perhaps anticipating the success of court-ordered consent in
the criminal context, Facebook has begun asserting that section 2702,
which references voluntary disclosure, nonetheless permits the com-
pany to refuse access even if it has received “lawful consent.”507 Such
an approach would permit Internet intermediaries to refuse disclo-
sure, in the face of lawful consent and a court order, to the point that
it could deny access to a defendant’s own data even if the information
could prove her innocence. Needless to say, this construction goes far
beyond any legally viable purpose of the statute.
The line of reasoning also ignores the structure of the statute,
which bars an ISP from producing the information sought only if
there is no exception. Lawful consent is just such an exception.

503 See id. at 158 (quoting Flagg, 252 F.R.D. at 363).

504 See Application for Leave to File Amicus Curiae Brief and Amicus Curiae Brief of
Electronic Frontier Foundation in Support of Plaintiff and Petitioner Facebook, Inc. at 2,
Facebook, Inc. v. Superior Court, No. B248609, 2013 WL 2391432, at *1 (Cal. Ct. App. May
28, 2013).
505 See id.
506 See id.
507 See Facebook, Inc.’s Motion to Quash Subpoena in a Civil Case at 7, In re Facebook,
Inc., 923 F. Supp. 2d 1204 (N.D. Cal. 2012) (No. C 12–80171 LHK (PSG)); see also In re
Facebook, Inc., 923 F. Supp. 2d 1204, 1206 (N.D. Cal. 2012) (quashing subpoena and
noting, “Nor is the court persuaded that Applicants’ consent on Sahar’s behalf distin-
guishes these precedents so as to justify compelling production. Under the plain language
of Section 2702, while consent may permit production by a provider, it may not require such
a production.”).
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1062 CORNELL LAW REVIEW [Vol. 99:981

Issuing a subpoena directly to a provider is entirely consistent with the

SCA, which does not prevent the provider from performing its legal
duties once lawful consent for disclosure has been obtained. Con-
versely, allowing Internet intermediaries to refuse to produce data
even when they have received consent would upset the fragile balance
achieved in the civil context, where the SCA has been left intact
largely because direct discovery is possible. What is more, this would
permit the precise outcome that concerned the O’Grady court: parties
immunizing themselves from discovery merely by using cloud storage
from a service that refuses to disclose. In the long run, this cannot,
and will not, be the interpretation adopted by courts.
Another emerging path to the content of communications is
through the terms of the Internet intermediaries’ own license agree-
ments or terms of service. Almost all software “End User License
Agreements” and website “Terms of Use” include provisions allowing
for disclosure of content information and subscriber information.508
As a result of their careful drafting, Internet intermediaries may have
built “lawful consent” to disclose into many online agreements. This
question was raised by the court in Juror Number One, which noted that
“we have no information as to the terms of any agreement between
Facebook and Juror Number One that might provide for a waiver of
privacy rights in exchange for free social networking services.”509 But
given that Facebook’s Mark Zuckerberg views privacy as dead,510 it
should be unsurprising that the company’s “Data Use Policy” seems to
vitiate significantly any privacy interests and includes an express provi-
sion for consent to disclose information.511
Another path to content data may be through Internet in-
termediaries’ own advertising ecosystems. The SCA’s prohibition on
disclosure by a remote computing services (RCS) states that:
a person or entity providing remote computing service to the public
shall not knowingly divulge to any person or entity the contents of

508 See Derek S. Witte, Bleeding Data in a Pool of Sharks: The Anathema of Privacy in a World
of Digital Sharing and Electronic Discovery, 64 S.C. L. REV. 717, 729–30 (2013) (giving exam-
ples of popular services with such EULAs).
509 See Juror No. One v. Superior Court, 142 Cal. Rptr. 3d 151, 158 (Cal. Ct. App.
2012).
510 See Bobbie Johnson, Privacy No Longer a Social Norm, Says Facebook Founder, THE
GUARDIAN (Jan. 10, 2010, 8:58 PM), http://www.theguardian.com/technology/2010/jan/
11/facebook-privacy.
511 See Data Use Policy, FACEBOOK, https://www.facebook.com/full_data_use_policy
(last modified Nov. 15, 2013) (“We may access, preserve and share your information in
response to a legal request (like a search warrant, court order or subpoena) if we have a
good faith belief that the law requires us to do so.”). The policy is phrased in terms of
Facebook’s own belief as to whether it is obligated to comply—that is, it may disclose if it
believes it may disclose—which may mean that its obligation to disclose under the lawful
consent obtained in its terms of service may rest on its own beliefs about whether it may
disclose. Whether courts will accept such a circular argument remains to be seen.
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any communication which is carried or maintained on that ser-

vice . . . solely for the purpose of providing storage or computer
processing services to such subscriber or customer, if the provider is
not authorized to access the contents of any such communications
for purposes of providing any services other than storage or com-
puter processing.512
Unlike electronic communication service (ECS) providers, RCS
providers are defined by the fact that they offer services beyond transi-
tory electronic communications to the public.513 Many popular In-
ternet sites are RCS providers.514 For example, Google has created an
entire online ecosystem of services that go beyond mere transmission
of e-mail, and yet many of these services are likely not covered by the
RCS restrictions. Google (and many other free e-mail providers) scan
e-mails for purposes of targeted advertising, with statements to this
effect included in the company’s terms of service and privacy poli-
cies.515 As such, much of the information stored with Google is not
“solely for the purpose of providing storage or computer processing
services,” and in addition, Google is “authorized to access the contents
of . . . communications for purposes of providing . . . services other
than storage and computer processing.”516 As noted by the court in
Juror Number One, “if the service is authorized to access the customer’s
information for other purposes, such as to provide targeted advertis-
ing, SCA protection may be lost.”517
On this statutory reading, the prohibition of section 2702, which
is the bedrock of the SCA, would apply to nearly no cases of cloud
data. The ECS prohibition would only apply to content in “electronic
storage,” which is “temporary, intermediate storage . . . incidental
to . . . electronic transmission” or storage “for purposes of backup
protection.”518 The courts have interpreted this expansively, however.
In determining whether Facebook wall postings and comments were
recoverable with a civil subpoena, the Crispin court held that
“Facebook and MySpace are ECS providers as respects wall postings
and comments and that such communications are in electronic stor-

512 18 U.S.C. § 2702(a)(2)(B) (2012).

513 See id. § 2711(2).
514 See Viacom Int’l Inc. v. YouTube Inc., 253 F.R.D. 256 (S.D.N.Y. 2008).
515 See 18 U.S.C. § 2702(a)(2)(B).
516 Id. Compare Google Privacy Policy, GOOGLE, http://www.google.com/intl/en/poli
cies/privacy/ (last modified June 24, 2013), and Google Terms of Service, GOOGLE (Mar. 1,
2012), http://www.google.com/intl/en/policies/terms/ (last modified March 1, 2012),
with 18 U.S.C. § 2702(a)(2).
517 Juror No. One v. Superior Court, 142 Cal. Rptr. 3d 151, 156 (Cal. Ct. App. 2012);
see also William J. Robison, Note, Free at What Cost?: Cloud Computing Privacy Under the Stored
Communications Act, 98 GEO. L.J. 1195, 1212–14 (2010) (explaining that cloud computing
may not be protected under the SCA or the RCS because of the use of information for
targeted advertising).
518 See 18 U.S.C. § 2510(17).
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1064 CORNELL LAW REVIEW [Vol. 99:981

age.”519 For this reason, a number of cases have held that there is no
implied exception in the SCA for discovery subpoenas under the Fed-
eral Rules of Civil Procedure.520
But in criminal cases, the constitutional dimension of a defen-
dant’s right to present a defense affects the function of a subpoena
issued pursuant to Rule 17 of the Federal Rules of Criminal Proce-
dure. In interpreting the role of subpoenas under the SCA, one court
differentiated between civil discovery and constitutional criminal pro-
cedure: “Rule 17 is not a discovery device, but rather a vehicle by
which to obtain compulsory process.”521 In all likelihood, a defendant
denied access to data held by Internet intermediaries might be able to
claim a violation of several defense rights.522 Responding to this ten-
sion, “some trial courts in California have issued bench orders and
oral rulings finding that the restrictions . . . threaten to interfere with
the defendant’s constitutional rights to due process and effective assis-
tance of counsel.”523
The SCA’s permissions are much more lenient for non-content
data, including metadata, which is significant because, in many ways,
Big Data is more about metadata than content. Data about communi-
cations—the location of the person sending a communication, the IP
address accessed, login time, amount of traffic, type of traffic, and so
on—can tell a powerful story. Disclosure of non-content data to
nongovernment entities is not barred by the SCA, and, in fact, it is the
one category of data that is easier to obtain by private parties than it is
by government entities.524 The ISPs have written exceptions for them-
selves in their user agreements and privacy policies that permit them
to disclose subscriber information in response to a subpoena. In fact,
metadata disclosure has become almost routine in other areas of the
law. Consider, for example, the cases in which the recording industry
regularly and successfully used subpoenas to discover the IP addresses
and, in many cases, the identities of peer-to-peer file sharers.525 This
information is stock non-content information about a subscriber

519 See Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 989 (C.D. Cal. 2010).
520 See Mintz v. Mark Bartelstein & Assocs., Inc., 885 F. Supp. 2d 987, 991 (C.D. Cal.
2012); Crispin, 717 F. Supp. 2d at 975; Flagg v. City of Detroit, 252 F.R.D. 346, 350 (E.D.
Mich. 2008); In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 611 (E.D.
Va. 2008); O’Grady v. Superior Court, 44 Cal. Rptr. 3d 72, 89 (Cal. Ct. App. 2006).
521 See FTC v. Netscape Commc’ns Corp., 196 F.R.D. 559, 561 (N.D. Cal. 2000) (citing
United States v. Nixon, 418 U.S. 683, 698–99 (1974)).
522 See Zwillinger & Genetski, supra note 42, at 595–96 (citing Coleman v. Alabama, 399 R
U.S. 1, 9 (1970); Pennsylvania v. Ritchie, 480 U.S. 39, 40, 56 (1987)).
523 Electronic Communications Privacy Act and the Revolution in Cloud Computing: Hearing
Before the Subcomm. on the Constitution, Civil Rights & Civil Liberties of the H. Comm. on the
Judiciary, 111th Cong. 7 (2010) (statement of Marc J. Zwillinger), available at http://scholar
ship.law.georgetown.edu/cong/109.
524 See 18 U.S.C. § 2702(c)(6) (2012).
525 See, e.g., Interscope Records v. Does, 558 F. Supp. 2d 1176, 1179–80 (D. Kan. 2008).
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2014] DIGITAL INNOCENCE 1065

under the SCA but was readily available by subpoena. Moreover, com-
pliance with a subpoena is hardly burdensome, given that most com-
panies have set up a regular path and fee structure. All one needs to
do is serve the subpoena on the company’s custodian of records and
pay the fee, and the company provides the information.

3. Obtaining Information from the United States as a Third Party

A more onerous and convoluted process may apply when state

criminal defendants seek information from the federal government.
To be sure, officials such as FBI agents often cooperate with state
requests for information or witness testimony. If the federal govern-
ment proves recalcitrant, however, the seemingly proper approach
would be for the defense to serve a subpoena on the relevant federal
agency. Although the issue is “infrequently presented,” it turns out
to be “a difficult and important one.”526 A federal judge formulated
the question as follows: “How, if at all, may a defendant in a
state criminal prosecution obtain from unconsenting federal offi-
cials . . . information in their custody that may be material and
favorable to his state-court defense?”527
Pursuant to the so-called “housekeeping statute,” Congress has
authorized federal agencies to manage themselves by promulgating
regulations, including those for “the custody, use, and preservation
of its records, papers, and property.”528 For present purposes, the
regulations governing the Justice Department, and thus the FBI,
provide an apposite example.529 When a defendant makes a state
court–backed demand for information possessed by federal law en-
forcement, the served employee cannot provide that material without
notifying the U.S. Attorney for the district in which the issuing court is
located, and then receiving the approval of the “responsible offi-
cial”—that is, the U.S. Attorney and/or a high-ranking Justice Depart-
ment official.530 In turn, the responsible official must contact the
“originating component,” such as the head of the FBI field office
where the information was gathered.531 In the interim, the responsi-
ble official may engage in negotiations with the state court, prosecu-
tor, and defendant prior to any decision—and if necessary, file legal
motions—all intended to limit the demand for information.532

526 Smith v. Cromer, 159 F.3d 875, 883 (4th Cir. 1998) (Phillips, J., dissenting).
527 Id. (citation omitted).
528 5 U.S.C. § 301 (2012). Most federal agencies have created such regulations. See,
e.g., 10 C.F.R. §§ 202.21–202.26 (2013) (regulations for the Department of Energy).
529 See 28 C.F.R. §§ 16.21–16.29 (2013).
530 See id. §§ 16.22, 16.24.
531 See id. § 16.24(a).
532 See id. § 16.24(c).
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1066 CORNELL LAW REVIEW [Vol. 99:981

Ultimately, the responsible official may only authorize the pro-

duction of the requested material if the originating component has
no objection and the disclosure would be appropriate under the pro-
cedural rules governing the underlying case and the relevant law con-
cerning government privileges.533 Among other things, the disclosure
must not violate a specific regulation or statute (e.g., grand jury se-
crecy); it must not impair the effectiveness of investigative techniques
and procedures; and, of particular concern, it must not reveal classi-
fied information.534 In theory, the Deputy or Associate Attorney Gen-
eral could permit disclosure of information revealing a confidential
source or investigative techniques and procedures if he or she “deter-
mines that the administration of justice requires disclosure.”535 But
he or she “will not approve disclosure” if it would reveal classified
information.536
These daunting procedures may seem unlikely to produce infor-
mation helpful to a digital innocence claim. Sometimes a less formal
process might provide a bit of relief; in one case, for instance, a fed-
eral prosecutor responded to a state subpoena by relating that “the
FBI would be willing to sign a stipulation declaring that they have no
responsive documents.”537 In practice, however, state subpoenas to
federal agencies may follow an almost standard course leading to
denial: After deciding not to produce the information, an agency offi-
cial will move to quash the subpoena in state court. If the state court
denies the motion, the agency will invoke a federal statute to remove
the case to U.S. district court,538 where the agency will once again
move to quash the subpoena based on the doctrine of sovereign im-
munity and the Supremacy Clause of the U.S. Constitution.539 The
federal court will then quash the state subpoena pursuant to, inter
alia, the Supreme Court’s decision in United States ex rel. Touhy v.
Ragen,540 which has been interpreted as precluding state court juris-
diction to proceed against a federal employee (i.e., to hold him in

533 See id. §§ 16.24(b)(1)–(2), 16.26(a).

534 See id. §§ 16.24(b)(3), 16.26(b).
535 See id. § 16.26(c). In making such a decision, the official must take into considera-
tion: “(1) [t]he seriousness of the violation or crime involved, (2) [t]he past history or
criminal record of the violator or accused, (3) [t]he importance of the relief sought, [and]
(4) [t]he importance of the legal issues presented.” Id.
536 Id.
537 FBI v. Superior Court, 507 F. Supp. 2d 1082, 1086 (N.D. Cal. 2007).
538 See 28 U.S.C. § 1442(a)(1) (2012); see also Willingham v. Morgan, 395 U.S. 402, 405,
407 (1969) (holding that federal officers and the federal government can require a federal
forum to justify a wider reading of § 1442).
539 See, e.g., Boron Oil Co. v. Downie, 873 F.2d 67, 69 (4th Cir. 1989).
540 340 U.S. 462 (1951).
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2014] DIGITAL INNOCENCE 1067

contempt) when he is acting in accordance with agency

regulations.541
This understanding is flawed, and the exculpatory power of digi-
tal information could provide opportune moments to correct a juris-
prudential misstep. To begin with, the housekeeping statute was
intended to be just that—an explicit call for an agency to keep its
house in order, so to speak. The original housekeeping statute was
only supposed to “help General Washington get his administration
underway by spelling out the authority for executive officials to set up
offices and file Government documents.”542 When agencies began cit-
ing the housekeeping statute as authority to withhold information
from the public, federal lawmakers balked at the statute being “twisted
from its original purpose” and misinterpreted to “let every file clerk
become a censor,” a result that “would have aroused Madison, Jeffer-
son, Mason, and the rest of the statesmen who put so much trust in
popular rights to information.”543 The current housekeeping statute
was intended “to correct that situation,”544 as evidenced by the stat-
ute’s last sentence: “This section does not authorize withholding infor-
mation from the public or limiting the availability of records to the
public.”545 Nothing in the legislative history or text suggests that the
statute provides substantive grounds for a federal agency to withhold
information from the public,546 let alone a criminal defendant at-
tempting to prove his innocence.
The lower court interpretation of Touhy is also problematic. In
that case, the Supreme Court decided a narrow question—whether an
agency head could deny his subordinates the authority to produce
documents in response to a subpoena. In ruling that the Attorney
General could withhold such power from lower-ranked officials, the
Touhy Court explicitly refused to consider a far broader issue of consti-
tutional dimension. “We find it unnecessary . . . to consider the ulti-
mate reach of the authority of the Attorney General to refuse to
produce at a court’s order the government papers in his posses-
sion,”547 said Justice Stanley Reed in his majority opinion. “The con-
stitutionality of the Attorney General’s exercise of a determinative

541 See, e.g., Kasi v. Angelone, 300 F.3d 487, 504–06 (4th Cir. 2002); United States v.
Williams, 170 F.3d 431, 433 (4th Cir. 1999); Smith v. Cromer, 159 F.3d 875, 878–81 (4th
Cir. 1998); Louisiana v. Sparks, 978 F.2d 226, 236 (5th Cir. 1992); FBI v. Superior Court, 507
F. Supp. 2d at 1092–95.
542 H.R. REP. NO. 85-1461, at 1 (1958).
543 Id. at 2.
544 Id.
545 5 U.S.C. § 301 (2012).
546 See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 310 (1979); United States ex rel.
O’Keefe v. McDonnell Douglas Corp., 132 F.3d 1252, 1255–56 (8th Cir. 1998); United
States v. Henson, 123 F.3d 1226, 1237 (9th Cir. 1997).
547 United States ex rel. Touhy v. Ragen, 340 U.S. 462, 467 (1951).
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1068 CORNELL LAW REVIEW [Vol. 99:981

power as to whether or on what conditions or subject to what disad-

vantages to the Government he may refuse to produce government
papers under his charge must await a factual situation that requires a
ruling.”548 Justice Felix Frankfurter’s concurrence took up this pre-
cise point, emphasizing that “the decision and opinion in this case
cannot afford a basis for a future suggestion that the Attorney General
can forbid every subordinate who is capable of being served by process
from producing relevant documents.”549
As such, neither the housekeeping statute nor Touhy provides fed-
eral agencies immunity from, or a substantive privilege against, state
judicial processes. This does not mean that an agency cannot argue
sovereign immunity or invoke an executive privilege when confronted
with a subpoena from a state criminal court. Rather, those claims
must meet the doctrinal criteria of the relevant substantive law. Sub-
poenas from state courts are barred by sovereign immunity unless a
federal official’s withholding of information is unconstitutional or
otherwise beyond his legal authority.550 In turn, whether or not the
official’s actions are unconstitutional or ultra vires requires a judicial
assessment of the information in question and the asserted right to
such information, namely, the defendant’s “constitutionally guaran-
teed access to evidence”551 under the Fifth and Sixth Amendments.
In Smith v. Cromer,552 perhaps the leading case on state criminal
court subpoenas of federal officials, the U.S. district court acknowl-
edged that the state defendant’s compulsory process rights were at
stake and then balanced those rights against a federal agency’s inter-
est in protecting its employees from being subpoenaed by state
courts.553 The Fourth Circuit affirmed the district court’s assessment
of constitutional rights versus governmental interests and its conclu-
sion that the defendant had made an insufficient showing through
“unrelated allegations.”554 Quoting a prominent CIPA case, the
Cromer court noted that the defendant was required to “come forward
with something more than speculation as to the usefulness of [the]
disclosure.”555
Implicit within these words is a judicial obligation: when a state
criminal defendant makes a sufficient claim of digital innocence—
that is, a plausible showing that the federal government possessed rel-

548 Id. at 469.

549 Id. at 472 (Frankfurter, J., concurring).
550 See, e.g., Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 690 (1949).
551 United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982).
552 159 F.3d 875 (4th Cir. 1998).
553 See id. at 878, 881–83; id. at 886 (Phillips, J., dissenting).
554 See id. at 881–83 (majority opinion).
555 See id. at 883 n.2 (quoting United States v. Smith, 780 F.2d 1102, 1108 (4th Cir.
1985) (en banc)) (internal quotation marks omitted).
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evant and potentially exculpatory data—it would be incumbent upon

a federal judge to order at least an in camera inspection of the
sought-after information.556 The same analysis should apply when the
federal government raises a claim of privilege. In particular, the gov-
ernment’s assertion of the state secrets privilege can be reviewed
under CIPA or CIPA-like procedures. Judicial practice and a federal
regulation assume as much.557 Moreover, a state proceeding removed
to U.S. district court is derivative of the state court’s jurisdiction over
criminal cases. Thus, a federal court evaluating an issue of classified
information within the context of a motion by the federal government
to quash a subpoena is, in fact, exercising jurisdiction over a criminal
case (albeit a state case). This would seem to trigger CIPA’s provisions
or at least make CIPA “a useful framework.”558 The resulting in cam-
era review and the aforementioned substitution process could help
protect the rights of state criminal defendants with viable claims of
digital innocence—at least more so than a perfunctory quashal with-
out any independent review of the information in question.
Even if the foregoing arguments fall flat in court, a state criminal
defendant may still have a remedy. For instance, he can challenge a
federal agency’s decision not to disclose information by bringing
a separate civil action under the Administrative Procedure Act
(APA)559 or perhaps by seeking a writ of mandamus against the appro-
priate federal official (e.g., the U.S. Attorney General).560 This is ex-
actly what happened in Johnson v. Reno.561 On trial for capital murder,
the state defendant had been frustrated in his attempt to obtain rele-
vant materials from a series of federal law enforcement agencies that
had participated in the underlying criminal investigation. There was
no doubt that the information in question would have been discovera-
ble Brady material had the defendant been prosecuted federally.562
Emphasizing the importance of this information to the defendant
given the serious criminal charges he was facing, the Johnson court
referenced an opinion by Judge Learned Hand.563 “While we must
accept it as lawful for a department of the government to suppress
documents, even when they will help determine controversies be-
tween third persons,” Judge Hand wrote, “we cannot agree that this

556 Cf. Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987) (ordering such an in camera
review by a state trial court).
557 See, e.g., Kasi v. Angelone, 200 F. Supp. 2d 585, 596 (E.D. Va. 2002) (discussing a
state court performing an in camera review), aff’d, 300 F.3d 487 (4th Cir. 2002); 28 C.F.R.
§ 17.17(b) (2013).
558 See supra note 444 and accompanying text. See generally supra Part V.A.1. R
559 See 5 U.S.C. §§ 701–706 (2012).
560 See 28 U.S.C. § 1361 (2012).
561 92 F. Supp. 2d 993 (N.D. Cal. 2000).
562 See id. at 995.
563 See id. at 994.
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should include their suppression in a criminal prosecution, founded

upon those very dealings to which the documents relate, and whose
criminality they will, or may, tend to exculpate.”564 After citing
Hand’s opinion, the Johnson court ordered the production of the in-
formation, finding that the agencies’ decisions were “arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance with
law,” as well as contrary to the defendant’s constitutional rights.565
Admittedly, the APA/mandamus route may prove to be a dead
end for digital innocence claims, and, if nothing else, requiring a state
criminal defendant “to file a separate mandamus action or a cumber-
some APA suit in the middle of his [case] is so burdensome that it
effectively eviscerates his right.”566 In the face of a recalcitrant federal
agency and an unduly compliant federal court, the state defendant’s
best (or only) option may be to take the issue out of federal hands and
pursue a remedy against the underlying state case itself. State courts
have the authority to dismiss a criminal case or make adverse findings
against the prosecution if state officials’ invocation of privilege results
in their refusal to disclose potentially exonerating evidence.567 A state
court should have the same power when the noncompliant entity is a
federal agency. The federal government may have the absolute
prerogative to withhold certain secrets, but criminal courts in both the
federal and state systems need not tolerate an incomplete and poten-
tially erroneous truth-finding process.

B. Post-Conviction Relief
Where proof of innocence is only found after conviction, defend-
ants face a range of legal arguments intended to limit post-conviction
challenges. Some restrictions are considered necessary to stop repeti-
tive and abusive petitions, but they can also severely restrict the ability
of the actually innocent to exonerate themselves. This section consid-
ers the procedural bar to habeas relief imposed by the Antiterrorism
and Effective Death Penalty Act (AEDPA),568 before turning to recent
developments in the law that may provide hope for the wrongfully
convicted who discover digital evidence of actual innocence.

564 United States v. Andolschek, 142 F.2d 503, 506 (2d Cir. 1944).
565 Johnson, 92 F. Supp. 2d at 995 (quoting 5 U.S.C. § 706(2)(A)–(B) (2012)) (internal
quotation marks omitted). In the alternative, the Johnson court found that the mandamus
requirements were met because: (1) the defendant’s claim was “clear and certain”; (2) the
agencies had ignored and/or violated the standards delimiting their discretion; and (3) no
other adequate remedy was available. Id. (internal quotation marks omitted).
566 In re Boeh, 25 F.3d 761, 770 n.4 (9th Cir. 1994) (Norris, J., dissenting).
567 See, e.g., Hines v. Superior Court, 251 Cal. Rptr. 28, 30 (Cal. Ct. App. 1988) (laying
out guidelines for California courts making adverse findings after privilege is invoked by
state officers).
568 Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of
the U.S. Code).
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1. Habeas and AEDPA

Arguably, AEDPA has been the largest obstacle for wrongful con-
viction claims. Prior to the law’s enactment in 1996, the Supreme
Court had held that the “great writ” of habeas corpus was subject to
various procedural defaults—for instance, a defendant’s submitting
“successive” or “abusive” petitions, his failing to develop facts in state
court, or his defying state procedural rules such as filing deadlines—
which thereby precluded federal court review of state court judg-
ments. For its part, AEDPA further imposes a one-year statute of limi-
tations on federal habeas petitions.569 To date, the Supreme Court
has not recognized a freestanding claim of actual innocence,570 mean-
ing that an inmate raising a wrongful-conviction argument must shoe-
horn the issue through some other viable legal ground—most
frequently, a Sixth Amendment claim of ineffective assistance of
counsel.
AEDPA itself contains an exception to the otherwise stringent
one-year deadline for claims of newly discovered evidence, so long as
the petition is filed within one year of “the date on which the factual
predicate of the claim or claims presented could have been discovered
through the exercise of due diligence.”571 In essence, this provision
triggers a new one-year limitations period starting with the time at
which the evidence should have been discovered by a conscientious
defense.572 The operative inquiry then is one of “reasonable dili-
gence” and whether its exercise would have uncovered exonerating
information.573 The question is not unfamiliar to courts in other
contexts, and there is a developed jurisprudence of diligence.574
While a literature survey is beyond the present scope, the following
will identify trends in the interpretation of the diligence requirement
that might provide some guidance for inmates seeking exoneration
based on strong digital evidence.
Broadly stated, the cases suggest that a petitioner must move
promptly to develop relevant facts. A petitioner proceeding pro se
and developing legal arguments from a prison library is held to tight
deadlines. Lack of education is not an excuse, nor are limited facili-
ties, limited ability to access the law, constrained or nonexistent access

569 See 28 U.S.C. § 2244(d)(1)(A) (2012) (“A 1-year period of limitation shall apply to
an application for a writ of habeas corpus by a person in custody pursuant to the judgment
of a State court.”).
570 See, e.g., Herrera v. Collins, 506 U.S. 390, 404–05 (1993) (“We have never held that
it extends to freestanding claims of actual innocence.”).
571 28 U.S.C. § 2244(d)(1)(D).
572 See id.
573 Id. § 2244(c).
574 See, e.g., Lee Kovarsky, Death Ineligibility and Habeas Corpus, 95 CORNELL L. REV. 329,
342 (2010) (discussing AEDPA’s statute of limitations requirement).
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to counsel, and so on. Of concern here, the restrictions placed on

prisoners in one technical field—law—may in the future be applied
with equal narrowness to the requirements that an inmate somehow
secure help in conducting sophisticated data searches.575 Although
prisoners are expected to be expert lawyers and clerks in order to
protect their rights, thus far the courts do not expect prisoners to be
technical scientists. Hopefully, prisoners will not be required to add a
computer science Ph.D. to their J.D. in the year following conviction.
For digital innocence, the salient feature is that while huge
amounts of information are being stored now, the existence of a par-
ticular piece of evidence, or its meaning in relation to other pieces of
evidence, may only be found years later. To be useful in digital inno-
cence claims, this store-now, parse-later trend requires the refinement
of digital analysis tools. Parsing algorithms must grow in strength and
become available to the broader public beyond Big Data firms.576
Moreover, discovery may have to wait until databases become big
enough or connected enough for meaningful analysis. But if this hap-
pens, the facts should rise to the surface as storage costs fall and
search algorithms improve.577
Consider the following example: A man is wrongfully accused of
murder but is convicted nonetheless and sent to prison for a crime he
did not commit. A decade later, an innocence project runs a “search
bot” over social networking data and finds that the defendant could
not have committed the offense. A geolocated and time-stamped pic-
ture of the defendant was posted from an acquaintance’s smartphone
to a now-defunct social photography service. This photograph dem-
onstrates that the defendant was, as he claimed, many miles away at
the time of the murder. Because AEDPA conceptualizes exonerating
evidence as single, discrete pieces of information, the question is
when the data should have been found by the exercise of reasonable
diligence.
More problematic under AEDPA is proof of innocence that does
not involve a single, crucial, game-changing piece of evidence but
instead comes from the ability of data-mining software to discover

575 See, e.g., Emily G. Uhrig, The Sacrifice of Unarmed Prisoners to Gladiators: The Post-
AEDPA Access-to-the-Courts Demand for a Constitutional Right to Counsel in Federal Habeas Corpus,
14 U. PA. J. CONST. L. 1219, 1243 (2012) (discussing the doctrine of equitable tolling).
576 See Gruenspecht, supra note 113, at 545 (“[B]ecause of the networking of digital R
storage, third parties are now significantly more likely to possess digital data, such as per-
sonal communications and stored documents, created by others.”); Richards, supra note
154, at 1939 (describing the concept of Big Data and its potential implications); Schwartz, R
supra note 63 (examining the legal issues surrounding GPS data privacy). R
577 See Daniel M. Katz, Quantitative Legal Prediction—or—How I Learned to Stop Worrying
and Start Preparing for the Data-Driven Future of the Legal Services Industry, 62 EMORY L.J. 909,
943 (2013) (“The decrease in data storage cost and increase in processor speed has
brought with it a massive proliferation of electronically stored information . . . .”).
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patterns. This is consistent with the way the technology works: digital
parsing tools reveal patterns,578 and a pattern is not one fact in isola-
tion but rather a set of relationships between different parts.579 In
pattern recognition, some parts of the pattern will become apparent
before others, and at times almost the entire pattern will be available
with just a few pieces missing to make the picture complete. The facts
will become known at different times, although some, if not most, may
already be known at the time of trial. Generally speaking, this situa-
tion is the mosaic theory redux.580 As the Supreme Court said in
CIA v. Sims, “bits and pieces of data may aid in piecing together bits of
other information even when the individual piece is not of obvious
importance in itself.”581
Now consider the question from the perspective of a prisoner
who finds a fact that tends toward her exoneration. Should she file
within a year, even though she has not obtained corroborating evi-
dence, or should she seek to corroborate that evidence? If she waits
but the first fact is the only one she finds, the defendant will have lost
her only chance to challenge her imprisonment.582 But if she files
within the deadline despite the fact that there is much more to find,
the defendant will have foregone her best chance to convince the
court that she is innocent based on multiple corroborating data
points. The tradeoff between time and certainty may impel prisoners
to file under-supported claims before the deadline runs, regardless of
how much corroboration they have obtained.
The speed of a database claim may be inversely related to its relia-
bility as a hard proof of innocence. Some pieces of a data puzzle will
be open and obvious from the outset. The pattern may not be con-
vincing until the pattern is complete, but at that point it may be com-
pletely convincing. The fact that data mining excels at matching
pieces of data over time complicates things for the courts. If they per-
mit prisoners to file habeas petitions based on the timing of the last
fact discovered, past-known facts would be grandfathered in based on
the discovery of some new fact.583 If courts instead focus solely on the

578 See Richards, supra note 154, at 1939. R

579 See id. (“[D]ata in one area can be linked to other areas and analyzed to produce
new inferences and findings.”).
580 See supra notes 338–39 and accompanying text. R
581 471 U.S. 159, 178 (1985) (quoting Halperin v. CIA, 629 F.2d 144, 150 (1980))
(internal quotation marks omitted).
582 See Kovarsky, supra note 574, at 341 (illustrating that roughly “four percent of post- R
AEDPA capital cases include a time-barred claim”).
583 See Jennifer G. Case, How Wide Should the Actual Innocence Gateway Be? An Attempt to
Clarify the Miscarriage of Justice Exception for Federal Habeas Corpus Proceedings, 50 WM. & MARY
L. REV. 669, 679 (2008) (examining a circuit split “as to whether the Schlup standard ‘re-
quires newly discovered evidence or merely newly presented evidence’” (quoting Wright v.
Quarterman, 470 F.3d 581, 591 (5th Cir. 2006))).
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1074 CORNELL LAW REVIEW [Vol. 99:981

date of the first related fact necessary to complete the pattern, they
could effectively foreclose the “new evidence” exception for an entire
category of digital innocence cases.

2. Actual Innocence
With sufficiently strong proof of digital innocence, however, peti-
tioners may be able to avoid the procedural bars of AEDPA. In its
recent decision in McQuiggin v. Perkins,584 the Supreme Court consid-
ered whether there was an actual innocence exception to AEDPA’s
diligence requirement, and if so, how strong the evidence must be to
pass through this gateway. The pre-AEDPA jurisprudence had recog-
nized a “miscarriage of justice” exception to overcome procedural
defaults in filing a habeas petition.585 In particular, an inmate who
could not provide good cause for a procedural default, such as abusive
or successive uses of the writ of habeas corpus, nonetheless “may have
his federal constitutional claim considered on the merits if he makes a
proper showing of actual innocence.”586 A credible showing of actual
innocence could overcome procedural bars to relief, “grounded in
the ‘equitable discretion’ of habeas courts to see that federal constitu-
tional errors do not result in the incarceration of innocent
persons.”587
To be viable today, this exception would need to have survived
AEDPA’s enactment, and the relationship between pre-AEDPA law
and post-AEDPA deadlines is thorny. AEDPA’s statute of limitations
can be equitably tolled if the petitioner has acted diligently with
regards to the claim’s development and was prevented from filing by
some extraordinary event. These criteria were not met in Perkins
because the statute of limitations had expired and the defendant had

584 See 133 S. Ct. 1924, 1928 (2013) (holding that evidence of actual innocence can
overcome the habeas statute of limitations if “in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt”).
585 See, e.g., Keeney v. Tamayo-Reyes, 504 U.S. 1, 12 (1992) (“A habeas petitioner’s
failure to develop a claim in state-court proceedings will be excused . . . if . . . a fundamen-
tal miscarriage of justice would result from failure to hold a federal evidentiary hearing.”);
Coleman v. Thompson, 501 U.S. 722, 750 (1991) (“[F]ederal habeas review of the claims is
barred unless the . . . failure to consider the claims will result in a fundamental miscarriage
of justice.”); McCleskey v. Zant, 499 U.S. 467, 494–95 (1991) (“[T]he failure to raise the
claim in an earlier petition may nonetheless be excused if . . . a fundamental miscarriage of
justice would result from a failure to entertain the claim.”); Murray v. Carrier, 477 U.S. 478,
495–96 (1986) (“[V]ictims of a fundamental miscarriage of justice will meet the cause-and-
prejudice standard.” (quoting Engle v. Isaac, 456 U.S. 107, 135 (1982)) (internal quotation
marks omitted)); Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (“[S]uccessive federal
habeas review should . . . be available when the ends of justice so require.”).
586 Herrera v. Collins, 506 U.S. 390, 404 (1993); see also Carrier, 477 U.S. at 496 (“[A]
federal habeas court may grant the writ even in the absence of a showing of cause for the
procedural default.”).
587 Herrera, 506 U.S. at 404 (quoting McCleskey, 449 U.S. at 502).
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not diligently pursued his rights,588 thereby adding another prerequi-

site to the defendant’s actual innocence claim: time must not be of
the essence in any preexisting, court-crafted, AEDPA-surviving
exception.
The Perkins Court concluded that “actual innocence, if proved,
serves as a gateway through which a petitioner may pass whether the
impediment is a procedural bar, . . . or, as in this case, expiration of
the statute of limitations.”589 When faced with an actual-innocence
gateway claim, “a federal habeas court . . . should count unjustifiable
delay on a habeas petitioner’s part, not as an absolute barrier to relief,
but as a factor in determining whether actual innocence has been reli-
ably shown.”590 As a threshold requirement, the defendant must per-
suade a habeas court that, “in light of the new evidence, no juror,
acting reasonably, would have voted to find him guilty beyond a rea-
sonable doubt.”591 Moreover, Justice Ruth Bader Ginsburg’s majority
opinion cautioned “that tenable actual-innocence gateway pleas are
rare.”592 For defendant Perkins, his claim on remand was predestined
for denial, given the district court had already concluded the defen-
dant “had not shown that, taking account of all the evidence, ‘it is
more likely than not that no reasonable juror would have convicted
him,’ or even that the evidence was new.”593
Without a doubt, however, the Perkins framework will be a posi-
tive development for the use of Big Data to exonerate, since the re-
moval of the time bar is critical for digital innocence claims. Indeed,
a forgiving standard may be in order given the aforementioned diffi-
culties attending the procurement and analysis of the underlying data.
Technology can deliver new evidence of innocence, but the necessary
progress takes time. In the case of DNA testing, the technology to
prove innocence took decades to develop. If time alone barred the
wrongfully convicted from challenging their incarceration, innocence
derived from new technological advances would be useless in many
cases. And, as noted previously, it may take time for a pattern to be-
come complete. Some pieces of the data puzzle may be missing at
first and only become evident over time. But when the puzzle is

588 See Perkins, 133 S. Ct. at 1936 (“[E]quitable tolling was unavailable to Perkins be-
cause he could demonstrate neither exceptional circumstances nor diligence.”).
589 See id. at 1928.
590 Id.
591 Id. (quoting Schlup v. Delo, 513 U.S. 298, 319 (1995)) (internal quotation marks
omitted).
592 Id.
593 Id. at 1930 (quoting the district court’s opinion); see Perkins v. McQuiggin, No.
2:08-cv-139, 2013 WL 4776285, at *3 (W.D. Mich. Sept. 4, 2013) (dismissing petition on
remand).
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finally completed, the provably innocent must have an avenue to over-

turn their convictions.
Certainly, Perkins requires strong proof to reach the gateway, but
Big Data technology delivers precisely this kind of hard evidence of
actual innocence. Geolocation information will establish alibis.
Tagged photographs and facial recognition will prove innocence by
showing that someone else committed an act. Telephony metadata
records will demonstrate that a conspiracy had some members but
that others were outside of the circle. Social network maps will prove
who-knew-whom for purposes of evaluating witness and informer testi-
mony. The list goes on and on. What is most important is that when
this proof of innocence is unearthed by quickly growing information
technology, there will be a path to justice for the wrongfully convicted.

CONCLUSION
In the wake of the Snowden disclosures, Americans are being
forced to weigh the costs and benefits of Big Data and mass surveil-
lance in terms of their privacy and security. To date, however, the
analysis has failed to consider an important consequence: as a result
of their spying en masse, the government and commercial entities
assume an obligation to provide criminal defendants access to poten-
tially exculpatory evidence. The depth and breadth of corporate and
government surveillance virtually guarantee that evidence of digital
innocence will be found using the tools of Big Data. This Article has
sought to identify and describe the relevant technology, and to sug-
gest a path forward to prevent wrongful convictions and exonerate the
actually innocent already behind bars. We do not revel in the emer-
gence of a surveillance society and an Orwellian national security
apparatus. But we do want to make clear one unavoidable conse-
quence for the watchers. Conceptualizing digital innocence is just the
first step, but a necessary one, to ensure that Big Data and data min-
ing are not reserved solely for convictions.