If The NSA's System Is Too Big To Comply With Court Orders, Court Should Require It To Change Its System

from the something's-badly-broken dept

Last week, we wrote about the latest in the Jewel v. NSA case, where the Justice Department admitted to the EFF that the NSA was still destroying surveillance evidence, despite a temporary restraining order in March ordering it to stop. The EFF had rushed over to the court to get an emergency order to get the DOJ/NSA to stop -- and the DOJ flipped out, arguing that such an order was effectively impossible, since the information was quickly spread throughout many different systems, and stopping the program from deleting unnecessary info that was collected under that program (the so-called minimization efforts) might require the NSA to stop a huge amount of intelligence gathering, just to handle the situation. And, yes, there does appear to be some significant amount of irony in the idea that the DOJ insists that an order that it stop destroying evidence might mean that the NSA would have to stop collecting data in the first place. Either way, the judge was at least convinced enough that the court allowed the NSA to keep destroying evidence while the two sides further brief the issue, for a later ruling on whether or not the restraining order really applies to the information collected under Section 703 of the FISA Amendments Act.

While we focused mainly on the whole issue of the NSA/DOJ destroying key evidence in a case about its surveillance efforts, the ACLU has made another important (if related) point: if the NSA's systems are really too complex to comply with a preservation order, isn't that a pretty serious problem?

For an agency whose motto is "Collect It All," the NSA's claim that its mission could be endangered by a court order to preserve evidence is a remarkable one. That is especially true given the immense amount of data the NSA is known to process and warehouse for its own future use.

The NSA also argued that retaining evidence for EFF's privacy lawsuit would put it in violation of other rules designed to protect privacy. But what the NSA presents as an impossible choice between accountability and privacy is actually a false one. Surely, the NSA — with its ability to sift and sort terabytes of information — can devise procedures that allow it to preserve the plaintiffs' data here without retaining everyone's data.

The crucial question is this: If the NSA does not have to keep evidence of its spying activities, how can a court ever test whether it is in fact complying with the Constitution?

The ACLU calls this "too big to comply," a play on the infamous "too big to fail" claims towards Wall Street during the 2008 economic crisis. Of course, back in 2008, I made a simple suggestion on the "too big to fail" argument, which would seem to apply equally here. Back then, I pointed out that if banks are "too big to fail," there's a reasonable solution that doesn't involve making them even bigger (which was the government's solution): it was to require them to get small enough to fail again. Basically, the government could offer them bail out money on the condition that the banks be reorganized in a manner that if particular pieces started to fail, it didn't create systemic risk to the entire system. In some forms it wouldn't be all that different than a traditional antitrust breakup. And, yes, there's a lot of complexity hidden within such a proposal, but it seems like the only thing that really made sense (though, unfortunately, no one in the government seemed to agree).

So, shouldn't we take the same approach with the NSA? If its systems are truly "too complex to comply" or "too big to comply" with preservation orders, then shouldn't the court require the NSA to change its systems such that it can actually comply with legal court orders to preserve evidence needed in lawsuits that explore the constitutionality of their surveillance efforts?

Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    mcinsand, Jun 11th, 2014 @ 9:11am

    Am I understanding this correctly...

    So, as I'm reading the NSA's 'logic,' they can't be required to preserve court-required evidence. Forgetting the fact that the claim that they can't secure particular information simply leaves me more skeptical than I have ever been. However, let's say that they are telling the truth (Please! Stop laughing in the back.) What if this wasn't Jewel? What if this was a group of individuals purchasing fertilizer, diesel fuel, plain white vans, etc. If I'm reading the NSA correctly, then they couldn't be trusted to preserve any relevant evidence for a trial. Then, if the people involved in the purchases were up to no good, they would probably go free.

    Is that what the NSA is saying? They collect everything that they can, but they can't be trusted to keep anything that might be needed by, say, the court system.

     

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  2.  
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    Anonymous Anonymous Coward, Jun 11th, 2014 @ 9:15am

    Too Big?

    The part of the NSA that is too big, is their hubris.

     

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  3.  
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    Anonymous Coward, Jun 11th, 2014 @ 9:19am

    Re: Am I understanding this correctly...

    You touched on a part of the bigger picture. Lets spell this out.

    The NSA via Government et al... has reserved the rights to...

    Adulterate Evidence
    Falsify or Misrepresent Evidence
    Illegally Obtain Evidence
    Fabricate Evidence

    In short, you need to let NSA decide who is good or evil... evidence and/or your rights be damned!

     

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  4.  
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    Anonymous Anonymous Coward, Jun 11th, 2014 @ 9:19am

    Re: Am I understanding this correctly...

    Except the NSA does not solve issues with court cases, they use drones and missiles.

     

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  5.  
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    Anonymous Coward, Jun 11th, 2014 @ 9:32am

    will you please stop bringing common sense into these conversations, Mike, one day someone might take note!!

     

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  6.  
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    Anonymous Coward, Jun 11th, 2014 @ 9:34am

    Too Important to be Accountable

     

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  7.  
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    Anonymous Coward, Jun 11th, 2014 @ 9:46am

    So basically the NSA throws puppies off cliffs and claims that there's nothing they can do to prevent puppy deaths since large falls are lethal, and also the NSA is not responsible for any puppy deaths because it's the ground that actually kills the puppies. But all the puppies are terrorists anyway so it's okay.

     

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  8.  
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    Branden Allmon (profile), Jun 11th, 2014 @ 9:46am

    Lavabit

    So if building a system not designed to comply with a federal agency's order, is reason enough to refuse the order, what happened to Lavabit again?

     

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  9.  
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    John Fenderson (profile), Jun 11th, 2014 @ 9:47am

    Re: Re: Am I understanding this correctly...

    The NSA doesn't even do that. They simply collect and process communications. They pass on that information to the agencies who use drones and missiles.

     

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  10.  
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    RadioactiveSmurf (profile), Jun 11th, 2014 @ 9:50am

    Just so we're clear the NSA is to big to comply but Google better police the internet and remove anything that the court compels them to. Two sets of rules at play here.

     

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  11.  
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    Anonymous Coward, Jun 11th, 2014 @ 9:57am

    Re:

    Let's be fair: the NSA is bigger than Google.

     

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  12.  
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    Uriel-238 (profile), Jun 11th, 2014 @ 9:59am

    Does that even make sense?

    What exactly is the function of the NSA again? And how can they accomplish this service without being able to control the data within their system?

    It sounds like the NSA has already moved to the stage of being solely intent on self preservation, not actually accomplishing any function at all except to attack anything that might specifically threaten the agency.


    As of this posting I have not received a US National Security Letter or any classified gag order from an agent of the United States
    This post does not contain an encrypted secret message
    Wednesday, June 11, 2014 9:58:18 AM
    mint goal shrimps shelf marble frame pliers medicine

     

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  13.  
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    Josh in CharlotteNC (profile), Jun 11th, 2014 @ 10:05am

    Re: Am I understanding this correctly...

    What if this was a group of individuals purchasing fertilizer, diesel fuel, plain white vans, etc. If I'm reading the NSA correctly, then they couldn't be trusted to preserve any relevant evidence for a trial. Then, if the people involved in the purchases were up to no good, they would probably go free.

    Well, that's when they get other agencies to manufacture evidence that can be used in trials.

    No need to preserve it if they're lying about where it came from. /s

     

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  14.  
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    DannyB (profile), Jun 11th, 2014 @ 10:05am

    Please do not be so critical of the NSA

    Look, judge, it's not that the NSA's system is too big to comply with the court's orders. It is that the NSA's system is too big and too important to comply with the constitution of the United States.

    Therefore, the NSA begs the court to recognize that it is simply impossible for the NSA's system to comply with the court's order while remaining unconstitutional.

     

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  15.  
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    Tice with a J (profile), Jun 11th, 2014 @ 10:12am

     

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  16.  
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    Anonymous Coward, Jun 11th, 2014 @ 10:30am

    Re: Please do not be so critical of the NSA

    Besides judge... we have pictures of you and the neighbors dog...

     

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  17.  
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    btr1701 (profile), Jun 11th, 2014 @ 10:37am

    Obligation

    > If its systems are truly "too complex to
    > comply" or "too big to comply" with preservation
    > orders, then shouldn't the court require
    > the NSA to change its systems such that it
    > can actually comply with legal court orders

    That might fly with a governement agency, which is (theoretically, at least) obligated to serve the public, but not a private company.

    I'm under no obligation to design my business, and my computers, and the systems that run on them to be most convenient for judges and the lawyers who may (or may not) sue me at some point in the future.

     

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  18.  
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    Anonymous Coward, Jun 11th, 2014 @ 10:54am

    Re: Re: Am I understanding this correctly...

    Exactly. With parallel construction uh... I mean... evidence laundering, who needs to keep the original?

     

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  19.  
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    David, Jun 11th, 2014 @ 11:35am

    Well, the salient point is this:

    The NSA does not have the ability to search and store data on condition of a court order and/or warrant.

    Somewhat embarrassingly, the only legal way to invade the privacy of personal assets according to the Fourth Amendment is on condition of a court order and/or warrant.

    So the NSA is saying "sorry, we never intended to be operating legally".

    And the judge says "of course, what a dummy I am! Carry on."

     

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  20.  
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    Anonymous Coward, Jun 11th, 2014 @ 11:48am

    Does the NSA not have a system for preserving evidence of terrorist activities? If not whatís the point of any of it. If so why don't they utilise it and preserve the evidence when they are the suspects? Hmmmmmmm.

     

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  21.  
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    Anonymous Coward, Jun 11th, 2014 @ 11:55am

    Given the NSAs track record for telling the truth, I can't get my head around the idea the judge bought this hook, line, and sinker.

    Either the NSA has a method for retaining data for future use or what is the purpose of spying? Catching the data without using is is useless. No wonder they can't catch terrorists.

     

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  22.  
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    Anonymous Coward, Jun 11th, 2014 @ 12:05pm

    Re:

    What do they need evidence for? They just have the CIA drone strike the target. It's the "process that they do" which Holder flat out said wasn't a "judicial" process.

     

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  23.  
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    Anonymous Coward, Jun 11th, 2014 @ 12:27pm

    If a corporation gave this excuse, no matter how big and interconnected it is with other corporations or subdivisions (or parent branches and their subdivisions or whatever), it wouldn't fly. So why does the NSA get a free pass?

     

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  24.  
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    Anonymous Coward, Jun 11th, 2014 @ 12:29pm

    Re: Lavabit

    First we had 'too big to fail'.

    Now we have too big to comply with laws. Laws are only for the small guy.

     

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  25.  
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    Coyne Tibbets (profile), Jun 11th, 2014 @ 12:29pm

    NSA brazen? Nah!

    I suspect that the NSA is attempting to brazen through two different lies at the same time to the court.

    First of all, they talk about retention limits...and then talk about how they've copied the data to 70 different systems. It wouldn't surprise me in the slightest that they are using that copying to bypass the retention limits. (Suppose they have a retention limit of 90 days on some data. If they have that data on SYSA, it will expire in 5 days, but if they copy it to SYSB, when does it expire? Right.)

    So then it would be a lie that they "can't keep the data" for the court, wouldn't it, since all the copying probably means they are keeping the data indefinitely in spite of the law?

    Second of all, I believe they have asserted that they can't copy the data for the court now. The 70 system copies gives the lie to that statement, because they already are copying it. Therefore, they could copy the data now, and sequester the copy until the court settles the issue of what data is to be turned over.

    But they are probably brazenly lying on both counts, that they can't retain the data and that they can't sequester it now.

    If I were the court, I would order them to copy and sequester the targeted data now, and accept no excuses.

    But even if the court waits, it is nice that the court now knows that there are 70 machines that need to be searched for relevant data, isn't it?

     

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  26.  
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    Anonymous Coward, Jun 11th, 2014 @ 12:30pm

    Re: Re: Am I understanding this correctly...

    Watched too many hollywood movies.

     

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  27.  
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    John Fenderson (profile), Jun 11th, 2014 @ 12:52pm

    Re: Obligation

    "I'm under no obligation to design my business, and my computers, and the systems that run on them to be most convenient for judges and the lawyers who may (or may not) sue me at some point in the future."

    If your business is in certain industries (financial and telecom, for example), then you are certainly under such an obligation. You are required to keep certain communications and records even when there isn't a business need, to provide backdoor access into your systems, etc.

     

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  28.  
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    Anonymous Coward, Jun 11th, 2014 @ 12:53pm

    Re: Am I understanding this correctly...

    This is what the ACLU kinda misses in the above quote (but comes close to explaining).

    They are an intelligence agency. Their job is to store and analyze relevant data to keep us safe. So what if they know they have relevant data on their systems somewhere but it will take them too long to get to and by then that relevant data will be automatically deleted? Are you telling me they will be unable to stop that relevant data from being deleted so that they can spend more time looking into it potentially allowing a terrorist to continue its plot and put us in danger? It's their job to be able to preserve and analyze relevant data and, apparently according to them, they can't even do their job. How secure is this supposed to make me feel?

     

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  29.  
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    Anonymous Coward, Jun 11th, 2014 @ 1:02pm

    Re: Re: Am I understanding this correctly...

    If we can't even trust them to be able to do a simple task like preventing relevant data from being deleted on their computer systems how can we then trust them with the far more complicated task of protecting our borders and keeping us safe?

     

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  30.  
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    John Fenderson (profile), Jun 11th, 2014 @ 1:15pm

    Re: Re: Am I understanding this correctly...

    "It's their job to be able to preserve and analyze relevant data and, apparently according to them, they can't even do their job. How secure is this supposed to make me feel?"

    I think it's obvious that they're lying through their teeth about this, but let's say they're being honest: I, personally, would feel MUCH more secure if I knew the NSA was unable to effectively engage in domestic surveillance.

     

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  31.  
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    Anonymous Coward, Jun 11th, 2014 @ 1:25pm

    Stab them with Morton's fork.

    Either as pathological liars they should be held in contempt of court until the sun goes out or all fired for their total incompetence.

     

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  32.  
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    Anonymous Coward, Jun 11th, 2014 @ 2:06pm

    Re:

    Hahaha, pretty funny.

    ...

    Oh wait - you're serious?

     

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  33.  
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    John Fenderson (profile), Jun 11th, 2014 @ 6:11pm

    Re:

    "Does the NSA not have a system for preserving evidence of terrorist activities?"

    The other AC's response is right on the money. The data is being collected solely for operational needs, not as evidence. For terrorist cases, no evidence is required because the remedy the US has chosen doesn't involve courts, due process, or any real mechanism to ensure justice.

    For domestic non-terrorist criminal cases, they just tell the cops -- who couldn't use what they're told as evidence regardless of its quality because that might reveal spying capabilities. Instead, "parallel construction" is used.

     

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  34.  
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    Anonymouse Coward, Jun 11th, 2014 @ 6:31pm

    Maybe they should be asking Kim Dotcom for some advice, or surplus capacity.

     

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  35.  
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    GEMont, Jun 12th, 2014 @ 9:10pm

    More BS from NSA... BSA

    "If its systems are truly "too complex to comply" or "too big to comply..."

    My money is riding on the most obvious probability...

    The NSA is lying through its collective teeth about their computer systems, simply because they believe that no court would ever force them to expose that system to inspection by outside parties.

    Since they fully believe that nobody can ever prove that they are lying without examining the systems firsthand and believe that nobody will ever be allowed to examine those systems, NSA believes it can get away with another 100% BS story, and the NSA administration is giggling like little girls over how they screwed the courts and their other public adversaries once again.

    That's been their general attitude since Snowden Day and will remain their general attitude until the day before their dissolution as a federal agency.

    A day that cannot come too soon.

     

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  36.  
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    Anonymous Coward, Nov 28th, 2014 @ 12:05pm

    baloney

     

    reply to this | link to this | view in thread ]


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