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Today the ACLU filed a Freedom of Information Act (FOIA) request seeking records related to 鈥減arallel construction,鈥� the government鈥檚 practice of falsifying a trail of evidence in order to conceal controversial investigative techniques from the courts and the public.

Under parallel construction, instead of disclosing how its investigation actually took place, the government presents a sanitized version of events. The practice allows the government to evade legal challenges to the use of such techniques, and also to keep the very existence of such techniques a secret. Recent news reports have shown that parallel construction might be far more common than we鈥檇 like to think, so we鈥檝e asked the government to provide any records it has documenting the practice.

Because evidence derived from an unconstitutional search is generally inadmissible in court, law enforcement agencies鈥攊n order to build a case against a defendant鈥攎ay make their investigation appear legal on the surface, by reverse-engineering a trail of evidence that passes Fourth Amendment muster. Here鈥檚 how it would work:

Suppose the government acquires incriminating information about a suspect using method 鈥淎,鈥� a novel and potentially unlawful technique. In order to keep method 鈥淎鈥� secret, and to avoid having to defend the legality of method 鈥淎鈥� in court, the government circles back to method 鈥淏,鈥� a lawful technique, and re-acquires the same incriminating information uncovered by method 鈥淎.鈥� In this way, the government fakes the investigative path that led it to the information, masking the fact that it ever used illegal method 鈥淎鈥� at all. As far as anyone knows, it only used 鈥淏.鈥�

As the ACLU has made clear, parallel construction violates the constitutional rights of the accused and . It allows the government to illegally collect evidence while evading its obligation to disclose, and then justify, how the evidence was obtained. Even when law enforcement gathers evidence pursuant to statute, it is the responsibility of the courts鈥攏ot the government鈥攖o determine whether the government actually followed the statute and whether the search method is in fact constitutional. The government doesn鈥檛 get to decide this for itself while keeping its use of the surveillance secret.

If all this sounds shocking, that鈥檚 because it is. Unfortunately, we only know bits and pieces about parallel construction鈥攂ut, based in large part on government documents procured through FOIA, we do know it鈥檚 real.

For example, parallel construction has been used to cover up of the techniques in the past decade. It initially captured the public鈥檚 attention in August 2013, when scrutinizing the elusive Drug Enforcement Administration Special Operations Division鈥檚 use of the practice. Parallel construction received renewed attention this past May, when a between the FBI and the Oklahoma City Police Department was . The non-disclosure agreement governs the use of cell site simulators鈥攃olloquially known as 鈥渟tingrays鈥濃�攁nd requires that the Oklahoma City Police Department use the technology for 鈥�,鈥� further explaining that the agency must 鈥渦se additional and independent investigative means and methods . . . that would be admissible at trial鈥� in lieu of .

Why would the Oklahoma City Police Department agree to limit the use of stingrays to 鈥渓ead purposes only鈥�? Beyond simply keeping the technology secret from the public or criminal defendants, it allowed the government to avoid legal challenges to the use of stingrays. Where the government is using novel and controversial surveillance techniques, that鈥檚 no small thing. Two courts鈥�, and 鈥攔ecently determined that the use of a stingray device without a warrant violates the Fourth Amendment, and both courts barred the government from using evidence obtained via stingray in criminal prosecutions.

Similar instructions were given to FBI agents who were fed tips from the government鈥檚 warrantless-wiretapping program, Stellarwind. Agents were instructed that information obtained through the program was:

for lead purposes only and is intended in developing their own collateral leads. It cannot be used in affidavits, court proceedings, subpoenas, or for other legal or judicial purposes.

These examples show that parallel construction is real, and that it is dangerous鈥攂ut there is much more to learn. We are filing this FOIA request to clarify how widespread the practice actually is, and how the government uses it.

Parallel construction allows law enforcement to conceal intrusive surveillance programs, evade statutory disclosure obligations, and use unconstitutionally obtained evidence in court鈥攚ithout any form of check or oversight. It provides an extraordinarily convenient solution to law enforcement, while jeopardizing privacy rights in the process. For these reasons, it is imperative that the government make its practice of parallel construction openly accessible to the public for review and debate.