Volume 16
Issue 2
Summer '18

Surveillance Technology and Graymail in Domestic Criminal Prosecutions

Written By: Charles M. Bell

Abstract

Following World War II, the expansion of the bureaucratized intelligence services and the Federal Bureau of Investigation resulted in the development and refinement of evidentiary privileges to protect intelligence and law enforcement sources and methods from disclosure at trial. In cases involving the intelligence services and the national security establishment, the clash between these evidentiary privileges and defendants’ discovery rights resulted in “graymail”—the trial tactic of forcing prosecutors into a dilemma between dismissing charges or disclosing sensitive or classified information about their sources and methods. The Classified Information Procedures Act has, for the most part, solved the problem of graymail with regard to classified information by prescribing workable procedures for its disclosure in evidence. However, law enforcement sources and methods that are sensitive but unclassified are protected by the law enforcement evidentiary privilege, and thus still subject to graymail. Law enforcement’s increased use of secret surveillance technology like cell site simulators and zero-day vulnerabilities has exacerbated the problem of graymail in domestic criminal prosecutions. In the Playpen cases, a series of prosecutions arising from a sting of a child pornography ring, the FBI retroactively classified the source code of the Network Investigative Technique (NIT) the Bureau used to hack the Playpen dark web server. As a result, the Playpen cases offer a unique opportunity to observe graymail tactics in nearly identical cases both with and without CIPA’s mechanism for controlled disclosure. CIPA’s success in mitigating graymail in the Playpen cases argues that an analogous statutory mechanism for controlled disclosure would be the best way to mitigate the potential for graymail in other cases involving secret, but unclassified, law enforcement sources and methods.

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