Legal Issues

by Tim Cushing


Filed Under:
jewel v. nsa, nsa, surveillance

Companies:
eff



Judge Orders Gov't To Stop Screwing Around And Hand Over Docs In Long-Running Surveillance Case

from the doing-nothing-24/7 dept

One of the longest-running lawsuits over NSA surveillance is still no closer to a final decision, but at least we may get to take a look at a few more Section 702 documents. Jewel vs. NSA (filed in 2008) predates the Snowden leaks by five years and, judging by the speed of the government's responses, will probably hit the 10-year mark before everything is sorted out.

The EFF reports a production order has been handed down by the court, which will hopefully light a fire under the recalcitrant government.

In 2016 the Court had ordered that the plaintiffs could seek discovery. After over a year of government stonewalling, the Court has now ordered the government to comply with a narrowed set of discovery requests by August 9, 2017. The discovery is aimed at whether plaintiffs' communications were subject to the mass NSA program tapping into the Internet backbone called Upstream. The court also ordered the government to file as much of its responses as possible on the public court docket.

Whether or not most of these documents will make their way into the public eye remains to be seen. But the court's order [PDF] contains a hypothetical indicating it's expecting a lot of production.

By 6-2-17: Government counsel to inform the Court if, hypothetically, a career law clerk was granted security clearance, would she be able to view all documents, including those already produced in classified submissions.

The court will still handle some of the discovery behind closed doors, but it's hoping to keep itself from being buried in paperwork. The order tells the government to move forward with its production in phases. It also asks the plaintiffs to narrow their discovery request "significantly." By August, the court would like to have this wrapped up and the case moving forward again.

Of course, this order has been delivered to a government that has argued no one has standing to challenge domestic surveillance and one that conveniently interpreted the Section 215 shutdown as permission to destroy evidence. The DOJ will continue to do everything it can to stem the flow of information to the public. It already spent a year ignoring the court's production order. I'm sure it will find a way to turn two months of discovery obligations into a much longer order -- perhaps even long enough to keep more Section 702 info out of the public's hands until after it obtains the year-end renewal it so badly wants.


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  1. icon
    That Anonymous Coward (profile), 30 May 2017 @ 3:47am

    One starts to wonder if the reason for all of the foot dragging isn't because we must keep the program secret but moreso this program generated nothing really useful except a couple of times when something fell into our laps.

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

  2. icon
    Stephen T. Stone (profile), 30 May 2017 @ 3:58am

    “Evil and good at what we do” does have better optics than “evil and awful at what we do”.

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

  3. identicon
    Anonymous Coward, 30 May 2017 @ 4:13am

    Re:

    In the UK, MI5 has launched an inquiry into why they ignored what people were telling them about the Manchester Bomber. So it seems like even when information is handed to them on a plate, they cannot tear their attention away from all that lovely hay that information that surveillance has dumped on the floor.

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

  4. identicon
    Annonymouse, 30 May 2017 @ 5:03am

    Tactical Pants

    Untill the judges start putting assess in cans for failures to comply nothing will happen.

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

  5. icon
    TheResidentSkeptic (profile), 30 May 2017 @ 5:42am

    Why do the Courts

    ... still think that any federal agency will listen to them? Or obey a "Court Order"?

    If the last few years have taught us anything, it is that all agencies hold themselves "above the law".

    Court orders FBI; FBI ignores order - Court Orders DoJ - DoJ laughs.

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

  6. icon
    Stephen T. Stone (profile), 30 May 2017 @ 5:52am

    Re: Why do the Courts

    Ruth Bader Ginsburg eats the DoJ. Woman inherits the Earth.

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

  7. icon
    That One Guy (profile), 30 May 2017 @ 6:06am

    Re: Why do the Courts

    Hey now, the judge could possibly maybe consider handing out a sternly worded letter if they ignore him/her, you better believe that government agencies are terrified of being on the receiving end of one of those.

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

  8. icon
    That One Guy (profile), 30 May 2017 @ 6:12am

    Re: Re:

    One of the major problems with the 'Collect it all, sort through it at our leisure' mindset that infects intel agencies is that when they actually do get important information it's almost certain to be drowned out by all the useless stuff.

    When you target your investigations and know what you're looking for you're likely to realize immediately when you run across something important and can act on it in time.

    When you're grabbing everything you can get your hands on 'just in case' then the overwhelming majority of what you come across is likely to be useless, and if you do manage to accidentally trip over something of importance spotting it in the pile in time to make use of it is more a matter of dumb luck.

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

  9. identicon
    Anonymous Coward, 30 May 2017 @ 6:20am

    Jailtime

    The courts need to start putting government employees in jail who mail to meet court mandated release dates.

    As to the official secrets defense, the Government must approve a court employee (acceptable to both sides) who is read onto all applicable programs, and able to obtain the source documents. No more we can't give it to you because it's a secret defense.

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

  10. identicon
    Anonymous Coward, 30 May 2017 @ 6:38am

    Re: Jailtime

    A lot of the times, a court will defer to the agency on National Security grounds.

    This time, though, it looks like the court might be inclined to draw an adverse inference, should the government continue stonewalling.

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

  11. icon
    Roger Strong (profile), 30 May 2017 @ 7:16am

    Re: Re: Re:

    One of the major problems with the 'Collect it all, sort through it at our leisure' mindset that infects intel agencies is that when they actually do get important information it's almost certain to be drowned out by all the useless stuff.

    It means that one a terrorist emerges, the intel agencies can retroactively surveil them. Root through their phone, email and social media records and find out everyone they've been communicating with.

    Which lets them quickly round up the terrorist's support network and prevent future attacks. But it's too late to stop the initial attack even if there were signs and warnings that seem obvious in hindsight.

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

  12. identicon
    Anonymous Coward, 30 May 2017 @ 7:54am

    perhaps even long enough to keep more Section 702 info out of the public's hands until after it obtains the year-end renewal it so badly wants.

    Or, if by some miracle that section is not renewed, they will take it as a cue to repeat their Section 215 destruction-of-evidence procedure. Obstruction has worked out well for them in every context so far, so they have very little incentive not to "accidentally" lose more incriminating evidence.

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

  13. identicon
    Anonymous Coward, 30 May 2017 @ 8:19am

    Re: Re: Re: Re:

    The objective of an intelligence agency is to give a forewarnings, so that attacks can be forestalled. If all they are providing is post Mortem analysis, then they have failed at their primary task. After an attack, the police can use warrants to gather phone, bank and travel records of the perpetrators, as well as interview family friends and neighbors to gather information that has never been in electronic form.

    Gather everything is almost certainly distracting the Intelligence services from carrying out a targeted investigation when someone is b ought to their attention, and carrying out the much more boring task of watching someone do ordinary things so that they can initiate action when they start to do extraordinary things.

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

  14. identicon
    Anonymous Coward, 30 May 2017 @ 5:42pm

    Long past time for the judge to start issuing contempt rulings against the individuals stonewalling. ALL of them.

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

  15. icon
    Coyne Tibbets (profile), 30 May 2017 @ 9:36pm

    Slow learners

    The court also ordered the government to file as much of its responses as possible on the public court docket.

    "...as much of its responses as possible..."?!! Judges must be the slowest learners ever. You give the government an option and "as much as possible" always translates to 0.000000000000000%.

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


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