EFF Tells Court That The NSA Knowingly And Illegally Destroyed Evidence In Key Case Over Bulk Surveillance
from the because-of-course-they-did dept
We followed the back and forth situation earlier this year, in which there were some legal questions over whether or not the NSA needed to hang onto surveillance data at issue in various lawsuits, or destroy it as per the laws concerning retention of data. Unfortunately, in the process, it became clear that the DOJ misled FISA court Judge Reggie Walton, withholding key information. In response, the DOJ apologized, insisting that it didn’t think the data was relevant — but also very strongly hinting that it used that opportunity to destroy a ton of evidence. However, this appeared to be just the latest in a long history of the NSA/DOJ willfully destroying evidence that was under a preservation order.
The key case where this evidence was destroyed was the EFF’s long running Jewel v. NSA case, and the EFF has now told the court about the destruction of evidence, and asked the court to thus assume that the evidence proves, in fact, that EFF’s clients were victims of unlawful surveillance. The DOJ/NSA have insisted that they thought that the EFF’s lawsuit only covered programs issued under executive authority, rather than programs approved by the FISA Court, but the record in the case shows that the DOJ seems to be making this claim up.
EFF filed its first lawsuit challenging illegal government spying in 2006. The current dispute arises from Jewel v. NSA, EFF’s 2008 case that challenges the government’s mass seizure of three kinds of information: Internet and telephone content, telephone records, and Internet records, all going back to 2001. EFF’s brief notes that the government’s own declarations make clear that the government has destroyed five years of the content it collected between 2007 and 2012, three years worth of the telephone records it seized between 2006 and 2009, and seven years of the Internet records it seized between 2004 and 2011, when it claims to have ended the Internet records seizures.
“The court has issued a number of preservation orders over the years, but the government decided – without consent from the judge or even informing EFF – that those orders simply don’t apply,” said EFF Legal Director Cindy Cohn. “Regular civil litigants would face severe sanctions if they so obviously destroyed relevant evidence. But we are asking for a modest remedy: a ruling that we can assume the destroyed records would show that our plaintiffs were in fact surveilled by the government.”
The full filing is worth reading as it highlights how ridiculous the DOJ’s “oh we didn’t think that stuff mattered to this case” argument really is. As EFF notes, all the way back in 2010, it had filed a brief that explicitly noted that they were challenging the use of exactly this kind of data.
The filing lists out the history of the government repeatedly destroying relevant information, despite the preservation orders from the court, and despite clear language noting that the government had to preserve exactly this kind of data. The DOJ’s argument that it thought the data under FISA-approved programs didn’t count seems especially weak, given that the DOJ itself was part of trying to hide that those programs even existed. As the EFF filing notes, the argument seems preposterous in context. For example, at one point, the DOJ claims that it thought EFF didn’t mean FISC-approved programs because it talked about “warrantless” surveillance. However, as EFF notes, even FISC-approved programs are still warrantless, because a FISC order is not a warrant.
Even more damning for the DOJ, the EFF filing points out that in the DOJ’s own attempts to kill this case under state secrets claims, it said that the activity had been approved by FISC. So, for all the talk about how it had no idea that EFF was interested in FISC-approved surveillance, that’s clearly untrue or it wouldn’t have invoked FISC as having approved the collection! After listing out numerous examples of government officials making official statements in the case talking about FISC approval and how revealing this would reveal FISC-related state secrets, EFF points out:
The Government cannot have it both ways, as it seeks to do here. It cannot present one understanding of the scope of plaintiffs’ claims — a very broad one — when asserting state secret privilege, but claim a much narrower understanding when it is destroying evidence.
As EFF points out, when evidence like this is destroyed:
the law presumes that the destroyed evidence goes to the merits of the case, and the burden is on the spoliating party to show that no prejudice resulted.” …. After having repeatedly and vociferously claimed that the plaintiffs must produce evidence from the government of individual seizure of their communications and records (as opposed to the boxes of their evidence plaintiffs have long presented), the government cannot meet its burden to show no prejudice has occurred here. Unsurprisingly, it has made no attempt to do so.
And now we wait to see how the DOJ tries to tap dance out of this one.