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16 Geo. J.L. & Pub. Pol'y 537 (2018)
Surveillance Technology and Graymail in Domestic Criminal Prosecutions

handle is hein.journals/geojlap16 and id is 550 raw text is: 


 Surveillance Technology and Graymail in Domestic
                     Criminal Prosecutions

                            CHARLES M. BELL*

  Following World War II, the expansion of the bureaucratized intelligence serv-
ices 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 eviden-
tiary 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 work-
able procedures for its disclosure in evidence. However, law enforcement sources
and methods that are sensitive but unclassified are protected by the law enforce-
ment 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.

                            TABLE OF CONTENTS
INTRODUCTION   ............................................       538

      SECRETS PRIVILEGE ....................................    539

* J.D., Georgetown University Law Center, 2018. X 2018, Charles M. Bell.

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