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.

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Comments on “EFF Tells Court That The NSA Knowingly And Illegally Destroyed Evidence In Key Case Over Bulk Surveillance”

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That One Guy (profile) says:

Time to see how much integrity and respect for the law the judge in the case has. If little to none, I imagine the DOJ will get off with a minor slap on the wrist, and the destroyed evidence will be ignored. If however the judge actually believes that no-one is above the law(a belief that is sadly all but non-existent these days), then I imagine the DOJ will be hurting after a move like this.

limbodog (profile) says:

Smells fishy to me

I suspect the DoJ either knew full well the end result of this, or else assumed that the SCOTUS would just side with them after political pressure. My money is on the former, which says to me that they sacrificed these court cases in order to protect the evidence from becoming public. ie: the secrets are more important to them than stopping criminals.

John Fenderson (profile) says:

Re: Re: Re:3 Smells fishy to me

Yeah, I know, but I was hoping that he had a better argument than that, so I was giving the benefit of the doubt.

That argument is weak for two reasons: first, agencies actually are hurt by large fines, because those fines are paid out of their budgets and so their funds are reduced until the next budget cycle. Admittedly, this means less for those agencies (like the NSA) that are drowning in cash.

More importantly, this hurts the taxpayers. That’s a very good thing: hurt the taxpayers enough and the average Joe, instead of saying “that doesn’t affect me”, will be screaming for enough reform to make the fines stop. We are the boss of the government, and the buck stops with us in every way, including financially. This sort of thing reminds people of that.

Anonymous Coward says:

…will be screaming for enough reform to make the fines stop.

I doubt that will be the driver. You haven’t heard this one yet from the public and you would already have heard it were this one that would help with a grass roots movement.

I think instead where the driver will be, is the government constantly needing more money and continually going back to the kitty for more. The increase in taxes is what will make the public scream.

Just like with the copyright enforcers, more and more actions are coming to court, a little at a time, seeking the chink in the armor. Sooner or later these will build up till not even the court believes the government on what needs be done. Or look at Prenda as a fine example of this in action. Everyone was saying why isn’t the court doing something about this miscarriage of justice. It was a long time in coming but no one is talking about that anymore. These issues with government wholesale spying and then running for the cover of National Security is coming to an end, not if, but when. It is just such actions as these that are bringing it to a head.

GEMont (profile) says:

Re: Re:

I really wish that what you say was true but, sadly, the internet public is not the general public.

Most of this will happen – the reported crimes and the eventual fines – without the general public ever becoming aware of the perpetrator of the crimes or the existence of the fines, due entirely to a controlled, or “truth-free” press that will report nothing at all, or mis-report the facts at best.

In Canada, the courts struck down the laws against cannabis around 2001, because the government could not bring forward a comprehensive Medical Marijuana position. The laws were stricken from the books after a one year wait during which the government did nothing. The laws were never re-instated to the law books, but the Canadian public does not have a clue about this as the police still arrest smokers and growers and the only coverage of the court case was on the internet, transcribed from recordings by a man named Turmel. The totally-controlled Canadian Truth-Free press dutifully pretended that this more than year-long court case never happened, never mentioning it once in any paper, or on any tv channel. Canadians generally still have no idea that cannabis has been Not-Illegal in Canada for more than a decade, save those few who followed the case on-line.

That’s all it takes to keep the public in the dark – a complicit press.

The US has that in spades.

The Fed also does not actually have to report honestly what costs the taxes are being raised to cover, so when it costs more to pay for these criminal activities of its agencies due to fines, it can simply state that its raising taxes for national security reasons, or road building for that matter.

Only an informed public can make informed decisions.

There is no “informed public” outside of the internet.

This is why there is so much desperation at high levels of government and commerce to end Net Neutrality, or as it has recently been relabeled, to allow corporate and government fuckery.

John Fenderson (profile) says:

Re: mike masnick eff etc

EFF is a very common and well-known term. It’s the Electronic Frontier Foundation: http://eff.org It hardly takes all day to discover what EFF means. The very first result when you search for it is to their webpage. Perhaps you should stop being so upset when other people aren’t willing to cater to your laziness.

tomczerniawski (profile) says:

Re: Re: mike masnick eff etc

I gotta jump in, in this guy’s defense. Whenever referring to an abbreviation of an organization in a journalistic article, the first instance of the abbreviation should be expanded/explained in brackets, or serve as a hyperlink to the referred organization. It’s just a good writing habit, and his question is perfectly legit. Folks shouldn’t have to Google to figure out what an unexplained abbreviation or acronym means.

John Fenderson (profile) says:

Re: Re: Re: mike masnick eff etc

True, but two points:

1) The practice is only advisable when you’re using terms your target audience is unlikely to know. For example, if you’re publishing an article in a programming journal, you want to actively avoid defining common jargon when you use it. It is pointless and will just annoy everyone, so reduce the value of the article. For this site’s audience, “EFF” is a commonly used term. I would argue that defining it would have been the wrong thing to do.

2) jay ess was being pretty insulting in his comment, which leads me to believe that he wasn’t so upset about the use of the term as he was looking for something, anything, bad to say.

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