NSA Admits It Has AGAIN Been Deleting Evidence Needed In Long-Running Surveillance Lawsuit

from the someday-the-NSA-will-get-a-handle-on-this-whole-'managing-data'-thing dept

The NSA is once again deleting data it's been ordered to retain for ongoing lawsuits. This isn't the first time. The Jewel v. NSA lawsuit -- which is nearing its tenth year in litigation -- has been ground zero for multiple NSA screw-ups. The shutdown of the Section 215 program resulted in some perhaps deliberate confusion within the agency. At first, the NSA decided it should just purge its 215 collections, taking with it anything that might be used against it in the Jewel case. Then it decided it would keep everything, giving it the opportunity to trawl pre-reform data banks for anything it might find useful, while simultaneously stiff-arming plaintiffs' requests for surveillance records.

Despite angering multiple judges with its inability to follow simple court orders, the NSA is back in front of a judge trying to explain why it has failed yet again to retain data relevant to the Jewel case.

[T]he NSA told U.S. District Court Judge Jeffrey White in a filing on Thursday night and another little-noticed submission last year that the agency did not preserve the content of internet communications intercepted between 2001 and 2007 under the program Bush ordered. To make matters worse, backup tapes that might have mitigated the failure were erased in 2009, 2011 and 2016, the NSA said.

That's the problem with collecting all the stuff. Where do you put it? Sooner or later, you have to get rid some stuff to make room for the new stuff. But rest assured, the NSA feels just awful it may have deleted crucial evidence.

“The NSA sincerely regrets its failure to prevent the deletion of this data,” NSA’s deputy director of capabilities, identified publicly as “Elizabeth B.,” wrote in a declaration filed in October. “NSA senior management is fully aware of this failure, and the Agency is committed to taking swift action to respond to the loss of this data.”

In the update Thursday, another NSA official said the data were deleted during a broad, housecleaning effort aimed at making space for incoming information.

Evidence spoliation d/b/a performance enhancements. That's the NSA way. The NSA claims potential evidence wasn't "targeted" but possibly was deleted. In other words: incidental deletion. This follows the NSA's assertions possible evidence was secured and fully backed up. Supposedly magnetic tapes containing communications and metadata pertinent to the Jewel case had been physically set aside and segregated from the NSA's other backups and data collections. That now appears not to have been the case.

The NSA is “preserving magnetic/digital tapes of the Internet content intercepted under the [PSP] since the inception of the program,” [NSA official Miriam P.] wrote, adding that “the NSA has stored these tapes in the offices of its General Counsel.”

The agency now says, “regrettably,” that the statement “may have been only partially accurate when made.”

The NSA is now making "extraordinary" efforts to recover the stuff it said wouldn't be erased. As the EFF (representing the plaintiff) has pointed out (repeatedly), missing evidence should be presumed to be favorable to the person asking for it to be handed over. Anything the NSA can't come up with should bolster the plaintiff's case. The NSA can't plausibly argue the plaintiff was never targeted or swept up incidentally in its collections if it doesn't have a copy of this data that shows otherwise.

Any person offering up shrugs and apologies instead of requested evidence could expect to be sanctioned by the court. Somehow I doubt the NSA will be subject to the same rules that apply to everyone else.


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  • icon
    Anonymous Anonymous Coward (profile), 22 Jan 2018 @ 9:57am

    Wouldn't it be loverly...

    ...If the entire management of the NSA was found in contempt of court and placed in prison until the required documents were produced. What, those documents are gone? Expect a lifetime of incarceration. Then, the next group placed in management positions at the NSA might not be so cavalier in their actions.

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

    • identicon
      Machin Shin, 22 Jan 2018 @ 10:28am

      Re: Wouldn't it be loverly...

      Seems fair enough. Maybe the director can share a cell with the guy being held because he refuses to hand over the password he can't remember.

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

  • identicon
    I.T. Guy, 22 Jan 2018 @ 10:33am

    [Pictures drug dealers flushing evidence]

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

    • identicon
      justme, 22 Jan 2018 @ 9:06pm

      Re:

      Drug dealers that flush evidence are likely to be held accountable, at least financially!

      Government official that delete evidence, not so much.

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

  • icon
    Ninja (profile), 22 Jan 2018 @ 10:56am

    If they acknowledged they had data on the plaintiff and then it suddenly got purged then yes they should be held liable and the lawsuit should end with a loss for them. But as noted before, I highly doubt anything will happen.

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

  • identicon
    Pixelation, 22 Jan 2018 @ 11:05am

    It looks like incompetence or malfeasance. If this was you or I, we would be torn a new one and seriously lucky if we didn't end up in jail.

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

    • identicon
      Anonymous Coward, 25 Jan 2018 @ 11:45pm

      Re:

      If you or I did it not only would we have bonus destruction of evidence charges the judge would instruct the jury to consider this proof that the evidence was unfavorable - giving reasonable cause to convict on basically everything it could have possibly contained proof of.

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

  • identicon
    Anonymous Coward, 22 Jan 2018 @ 11:25am

    It's OK. The NSA doesn't even collect data on millions of Americans. Not wittingly.

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

  • identicon
    Anonymous Coward, 22 Jan 2018 @ 11:29am

    Mr. Cushing...

    with all due respect, one cannot start deleting evidence "again" if said deletion never ceased.

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

  • identicon
    Joel Coehoorn, 22 Jan 2018 @ 12:09pm

    New Name

    It occurs to me the NSA isn't really an "agency" at all in the traditional sense... an organization for running semi-independent agents. We should re-name it. I propose the "National Office for Signals Intelligence", or NOSI for short :)

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

  • identicon
    Anonymous Coward, 22 Jan 2018 @ 1:01pm

    Are we still doing accountability theater with the NSA?

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

  • identicon
    Anonymous Coward, 22 Jan 2018 @ 4:46pm

    NSA = Not Sorry Agency

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

  • icon
    That One Guy (profile), 22 Jan 2018 @ 6:28pm

    NSA: 'And what are you going to do about it, idiot with a gavel?'

    The Jewel v. NSA lawsuit -- which is nearing its tenth year in litigation -- has been ground zero for multiple NSA screw-ups.

    If anyone believes those were 'accidents' I've got some positively stunning solar(in that it's literally on the surface of the sun) property I'd love to sell them.

    At this point they might as well bring a laptop into court, hook it up to a projector so everyone can see what's on the screen, show the entire court that it's connected to the files and backups related to the case, and then deliberately start deleting them in front of everyone, saying 'oops' or 'how'd that happen?' after each file/folder deletion.

    Same result, same blatant act of flipping everyone in court the bird, but at least they'd be honest and open about it. Until the judge grows a spine and starts throwing people in jail for contempt of court, this will keep happening, because really, why would they stop?

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

  • icon
    Coyne Tibbets (profile), 22 Jan 2018 @ 7:47pm

    To infinity and beyond

    NSA: "Oops!'

    Judge: "You guys are pressing the limits of my judicial patience. But I will overlook it this time."

    NSA: "Oops!'

    Judge: "You guys are pressing the limits of my judicial patience. But I will overlook it this time."

    NSA: "Oops!'

    Judge: "You guys are pressing the limits of my judicial patience. But I will overlook it this time."

    NSA: "Oops!'

    Judge: "You guys are pressing the limits of my judicial patience. But I will overlook it this time."

    NSA: "Oops!'

    Judge: "You guys are pressing the limits of my judicial patience. But I will overlook it this time."

    To infinity and beyond...

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

  • icon
    That Anonymous Coward (profile), 22 Jan 2018 @ 10:42pm

    The legal system, where you aren't granted the same rights as your betters.
    Scooping up everything is to protect us form terrorists!!!

    So what if we aren't supposed to get your data, its not like we are passing it around to other agencies & telling them to not reveal we gave it to them...oh wait...

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


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