Attorney Wants to Use NSA Phone Records For Accused Bank Robber's Defense

A lawyer representing an accused bank robber hopes to tap into a new source of potential evidence: any cell phone records gathered by the NSA as part of a recently leaked metadata surveillance program.

Terrance Brown, 40, is accused along with four other South Florida men of holding up an armored truck carrying bank cash in July, 2010. A truck guard was shot in killed during the robbery.

According to the Sun Sentinel, the FBI and federal prosecutors are using cell phone records as part of their case, attempting to prove that the five men were nearby when the robbery occurred. However, prosecutors were not able to obtain Brown’s phone records before September 2010, because his carrier, MetroPCS did not keep them.

Enter last week’s revelations, leaked by whistleblower Edward Snowden to the Guardian, that the NSA collected cell phone data from millions of Verizon wireless customers everyday. Attorney Marshall Dore Louis asked the U.S. Justice Department to turnover any phone records that might have been collected from Brown. U.S. District Judge Robin Rosenbaum gave prosecutors a couple weeks to respond. In a court order to the federal government, she wrote:

Defendant Brown urges that the records are important to his defense because cell-site records could be used to show that Brown was not in the vicinity of the attempted robbery that allegedly occurred in July 2010. And, relying on a June 5, 2013, Guardian newspaper article that published a FISA Court order relating to cellular telephone data collected by Verizon,1 Defendant Brown now suggests that the Government likely actually does possess the metadata relating to telephone calls made in July 2010 from the two numbers attributed to Defendant Brown.

The maneuver, first reported by defense attorney and blogger David Oscar Markus, raises questions over whether the government is required to hand over once-secret data once it is revealed to exist.

"If the government is spying on our phone calls, it can't then claim in the same breath that it won't provide those calls when it helps the defense. What's good for the goose, is good for the gander,” Oscar Markus told the Sun Sentinel.