That sounds right from a common sense perspective, but when you get down to the technical legal requirements, can a criminal defendant compel the NSA to fork over its secretive data trove? "These sorts of motions are always an uphill battle," says Markus. "But the defendant has a great, creative lawyer and a scholarly judge, so I wouldn't count him out. The fact that it has gotten this far is a victory in itself."
The NSA's data collection is assumed to be widespread, so Brown's case raises the question of whether more criminal defendants will ask the NSA to fork over more phone data in the future. Markus, for one, doubts we'll see criminal defendants making these kinds of requests very often. "Most of the time it's easy enough to get phone records," Markus says. "In this case, it was a little tricky, necessitating the motion."
The prosecution in Brown's case was originally due to respond to the defense's request by Wednesday, June 12. The judge has since extended the deadline to allow the prosecution more time to formulate a response.
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