Author Topic: Court Orders Government Not to Destroy Evidence in Cases Against the NSA  (Read 883 times)

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Offline Elaine Davis

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http://beforeitsnews.com/alternative/2014/04/court-orders-government-not-to-destroy-evidence-in-cases-against-the-nsa-2930996.html

Court Orders Government Not to Destroy Evidence in Cases Against the NSA

Wednesday, April 2, 2014 12:10

Nadia Kayyali and Kurt Opsahl
The Electronic Frontier Foundation

In an emergency hearing on March 19th, the government tried to convince the Northern District Court of California that the NSA should be relieved of its obligation to preserve evidence of dragnet collection of call records for the EFF’s First Unitarian case. The arguments in court revealed an astounding level of obfuscation from government lawyers around the numerous lawsuits challenging NSA spying.

There were a number of issues at the core of the argument. EFF was asking the government to preserve information that it never should have had in the first place. The government was misconstruing (willfully or blindly) our lawsuits against the NSA, and ultimately the government was trying to force a very narrow view of its duty to preserve evidence on the Court.

The government tried to frame the issue as one of resources, arguing that the Court needed to balance preservation of information against “the cost of retaining it, both in terms of financial costs as they are quantified in the papers submitted to the court, as well as the cost in personnel who, the Government argues, would be diverted from their core mission.” Essentially, the government tried to argue that compliance with its legal duty to preserve evidence in a lawsuit would divert too many NSA resources.

To complicate matters, the evidence in question is covered by a FISA Court (FISC) order that all bulk metadata collected pursuant to its Section 215 authorization must be destroyed after five years. In other words, under that order the NSA would only have possession of metadata that dates back to March of 2009 if it weren’t for the pending litigation—in fact, as discussed below, there is some indication that evidence may have been destroyed, regardless of the pending litigation. What’s more, the government had applied to FISC for leave to retain the information, which FISC denied.

So why are we here? The government has insisted that we need to show evidence of each individual being surveilled. While we believe the case can go forward without each individual’s call detail records, we also can’t allow the government to simultaneously insist the evidence is necessary and destroy that evidence.


The government’s response to these issues has not been reassuring. The government stepped back from the offer to retain evidence that it made to the FISC. As we pointed out: “what we proposed is what they proposed to the FISC. They proposed just keeping everything, for purposes of the litigation.”

Now the government is fighting against its own proposal. Claiming the burden would be too high, the government said in court that the last five years will be good enough; no need to worry about the first three years of this program. The Court did not buy the government’s arguments, noting that, hypothetically, the spying program could have changed over the years, and recognizing the “potential risk of destroying older documents.”

This potential risk is very real: we know that the government has claimed surveillance was authorized under a number of different authorities, presidential and FISA, and we know that the government plays word games when it comes to defining the way that it conducts dragnet surveillance.

The hearing also exposed an issue that had been hidden below the surface for years. The government was misconstruing the arguments in our lawsuits. According to the government: “First Unitarian is about collection of bulk telephony metadata pursuant to Section 215 of the USA PATRIOT Act. Jewel certainly is about — there’s no dispute — bulk collection of Internet data under Presidential authority.” This is correct as far as it goes, but the government wants to limit the cases to the particular programs under the government’s own categorization. The Jewel and First Unitarian cases are about far more: the unlawful and unconstitutional spying on ordinary Americans, regardless of what ‘program’ or supposed legal authority the government uses to justify the spying.

As this disagreement on the scope of the claims became clear, the Court had some questions for the government: “what I hear you saying is the Government . . . preserved all of the Jewel-related information, i.e., from the so-called ‘TSP’ or ‘Presidential’ program; but it secretly destroyed information related to FISC orders about which the Plaintiffs had no knowledge or no way of knowing. Is that what you’re saying?”

The government conceded that, for the Jewel case, it had only preserved evidence about the program during the time it was authorized by the President, but not spying done under FISC orders. This issue will be briefed and the Court will address it at a later date.

The government does not dispute that the FISC program was implicated by the First Unitarian case. The government has also strenuously denied that it destroyed any evidence since it was on notice of the First Unitarian case. In court, the government unambiguously stated “Since this suit was filed, the NSA has destroyed no telephony metadata collected under Section 215 for purposes of complying with the FISC’s five-year retention requirement, or at least, as far as I am aware, for any other reason.”

The government’s statement in court is not the whole story. A declaration from Theresa Shea, Director of the Signals Intelligence Directorate at the NSA, indicated that “since the inception of the FISC-authorized bulk telephony metadata program in 2006, the FISC’s orders . . . require that metadata obtained by the NSA under this authority be destroyed no later than five years after their collection. In 2011, the NSA began compliance with this requirement . . . and continued to comply with it until this Court’s March 10 order and the subsequent March 12 order of the FISC.” Director Shea noted that the oldest records currently available were from 2009, which fits with continued destruction into 2014.

These two statements from the government are inconsistent, and leave open the disturbing possibility that the NSA has destroyed evidence.

On March 21, the Court ordered the government to preserve evidence relevant to First Unitarian. The Court also ordered the attorneys in this case to inform their clients to halt any practices, government or business, that would result in destruction of evidence. On the same day, the FISC issued a scathing order accepting our motion to correct the record, in which we informed the FISC of information the government had failed to submit. The FISC order lambasted the government for not telling it about preservation orders in Jewel and the related Shubert case, an especially critical omission because the earlier court opinion relied on the notion that no preservation orders had ever been issued.

Now that the government’s preservation obligations moving forward have been settled, in the coming weeks, the parties will brief the Court on the remaining question of whether evidence has already been improperly destroyed.

Related Cases:

Jewel v. NSA

First Unitarian Church of Los Angeles v. NSA

Linkback: http://www.wikileaks-forum.com/nsa/332/court-orders-government-not-to-destroy-evidence-in-cases-against-the-nsa/29079/
GOD FORBID THE LIGHTS GO OUT and a zillion brains have to be retrained to function in manual reality.

Does anyone else get the idea that the tweets on the WL account are starting to sound a little like someone is bathing in a bird bath, eating bird food & possibly smoking bird * in his own sphere??

Offline Elaine Davis

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http://www.emptywheel.net/tag/jewel-v-nsa/

Jewel v. NSA

Turns Out the NSA “May” Destroy Evidence of Crimes before 5 Years Elapse


Published April 4, 2014 | By emptywheel

The metadata collected under this order may be kept online (that is, accessible for queries by cleared analysts) for five years, at which point it shall be destroyed. — Phone dragnet order, December 12, 2008

The Government “takes its preservation obligations with the utmost seriousness,” said a filing signed by Assistant Attorneys General John Carlin and Stuart Delery submitted Thursday in response to Presiding FISA Court Judge Reggie Walton’s accusation they had made material misstatements to him regarding the question of destroying phone dragnet data.

Recognizing that data collected pursuant to the Section 215 program could be potentially relevant to, and subject to preservation obligations in, a number of cases challenging the legality of the program, including First Unitarian Church of Los Angeles  v. NSA,

… Signals Intelligence Division Director Theresa Shea wrote in her March 17 declaration (starting at page 81) explaining what the government has actually done to protect data under those suits.

At which point Shea proceeded to admit that the government hadn’t been preserving the data they recognized was potentially relevant to the suits at hand.

… since the inception of the FISC-authorized bulk telephony metadata program in 2006, the FISC’s orders authorizing the bulk collection of telephony metadata under FISA Section 501 (known also as the Section 215 program) require that metadata obtained by the NSA under this authority be destroyed no later than five years after their collection. In 2011, the NSA began compliance with this requirement (when the first metadata collected under the FISC authority was ready to be aged off) and continued to comply with it until this Court’s March 10 order and the subsequent March 12, 2014 order of the FISC.

Thursday’s filing added to that clarity, not only saying so in a footnote, but then submitting another filing to make sure the footnote was crystal clear.

Footnote 6 on page 5 was intended to convey that “[c]onsistent with the Government’s understanding of these orders in Jewel and Shubert, prior to the filing of the Government’s Motion for Second Amendment to Primary Order, the Government complied with this Court’s requirements that metadata obtained by the NSA under Section 215 authority be destroyed no later than five years after their collection.”


The significance seems clear. The Government admits it could potentially have a preservation obligation from the filing of the first Section 215 suit, Klayman v. Obama, on June 6, 2013. But nevertheless, it destroyed data for 9 months during which it recognized it could potentially have a preservation obligation.  That means data through at least March 9, 2009 and perhaps as late as September 10, 2009 may already be destroyed, assuming reports of biannual purging is correct. Which would perhaps not coincidentally cover almost all of the phone dragnet violations discovered over the course of 2009. It would also cover all, or almost all, of the period (probably)  NSA did not have adequate means of identifying the source of its data (meaning that Section 215 data may have gotten treated with the lesser protections of EO 12333 data).

And the amount of data may be greater, given that NSA now describes in its 5 year age-off requirement no affirmative  obligation to keep data five years.

This all means the government apparently has already destroyed data that might be implicated in the scenario Judge Jeffrey White (hypothetically) raised in a hearing on March 19, in which he imagined practices of graver Constitutional concern than the program as it currently operates five years ago.

THE COURT: Well, what if the NSA was doing something, say, five years ago that was broader in scope, and more problematical from the constitutional perspective, and those documents are now aged out? And — because now under the FISC or the orders of the FISC Court, the activities of the NSA have — I mean, again, this is all hypothetical — have narrowed. And wouldn’t the Government — wouldn’t the plaintiffs then be deprived of that evidence, if it existed, of a broader, maybe more constitutionally problematic evidence, if you will?

MR. GILLIGAN: There — we submit a twofold answer to that, Your Honor.

We submit that there are documents that — and this goes to Your Honor’s Question 5B, perhaps. There are documents that could shed light on the Plaintiffs’ standing, whether we’ve actually collected information about their communications, even in the absence of those data.

As far as — as Your Honor’s hypothetical goes, it’s a question that I am very hesitant to discuss on the public record; but I can say if this is something that the Court wishes to explore, we could we could make a further classified ex parte submission to Your Honor on that point.

According to the NSA’s own admissions, until just over 5 years ago, the NSA was watchlisting as many as 3,000 Americans without doing the requisite First Amendment review required by law. And that evidence — and potentially the derivative queries that arose from it — is apparently now gone.

Which puts a new spin on the narratives offered in the press about DOJ’s delay in deciding what to do with this evidence. WSJ described the semiannual age-off and suggested the issue with destroying evidence might pertain to standing.

As the NSA program currently works, the database holds about five years of data, according to officials and some declassified court opinions. About twice a year, any call record more than five years old is purged from the system, officials said.

A particular concern, according to one official, is that the older records may give certain parties legal standing to pursue their cases, and that deleting the data could erase evidence that the phone records of those individuals or groups were swept up in the data dragnet.

FP’s sources suggested DOJ was running up against that semiannual deadline.

A U.S. official familiar with the legal process said the question about what to do with the phone records needn’t have been handled at practically the last minute. “The government was coming up on a five-year deadline to delete the data. Lawsuits were pending. The Justice Department could have approached the FISC months ago to resolve this,” the official said, referring to the Foreign Intelligence Surveillance Court.

There should be no February to March deadline. Assuming the semiannual age-off were timed to March 1, there should have already been a September 1 deadline, at which point NSA presumably would have destroyed everything moving forward to March 1, 2009.

Which may mean NSA and DOJ put it off to permit some interim age-off, all the out of control violations from 2009.

We shall see. EFF and DOJ will still litigate this going forward. But as I look more closely at the timing of all this, DOJ’s very belated effort to attempt to preserve data in February seems to have served, instead, to put off dealing with preservation orders until the most potentially damning data got destroyed.

All of this is separate from the dispute over whether DOJ violated the preservation order in Jewel, and that case may be coming up on the 5 year destruction of the last violative Internet metadata, which might be aged off by April 30 (based on the assumption the Internet dragnet got shut down on October 30, 2009).

But even for he more narrow question of the phone dragnet, for which the government admits it may have data retention obligations, the government seems to have already violated those obligations and, in the process, destroyed some of the most damning data about the program.

GOD FORBID THE LIGHTS GO OUT and a zillion brains have to be retrained to function in manual reality.

Does anyone else get the idea that the tweets on the WL account are starting to sound a little like someone is bathing in a bird bath, eating bird food & possibly smoking bird * in his own sphere??


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