There is “now no doubt” that the NSA has destroyed evidence that shows that it illegally spied on Americans, a digital watchdog group says, and it continues to do so despite court orders to preserve the data.
Initially, the government said it had not retained the data because it did not think it was pertinent to the case. Last week, it used a new, more peculiar justification: retaining the data now would be a technical and legal hassle that could threaten national security, because it may mean shutting down the entire Internet surveillance program altogether.
The evidence in question—the data of Americans who may have been caught up in the government’s phone and Internet surveillance programs after 9/11—is the subject of a 2008 lawsuit, Jewel vs. NSA, one of a slew of years-old court cases questioning the constitutionality of the government’s surveillance programs.
In March, a judge instructed the government to retain the data under a temporary restraining order. Last week, after it was discovered that the government had not complied, Judge Jeffrey S. White of the US District for the Northern District of California issued an emergency restraining order, once again requiring the NSA to keep the data. “Defendants are ordered not to destroy any documents that may be relevant to the claims at issue in this action, including the Section 702 materials,” he wrote.
The agency’s lawyers responded in an emergency motion, saying that not destroying the evidence would mean “complex technical and operational issues.” Retaining older data, it said, would violate rules and complicate computer systems that otherwise mandate the deletion of that data, under rules meant to protect individuals’ privacy.
Keeping the data, wrote Dept. of Justice lawyers, would “cause severe operational consequences for the National Security Agency’s (NSA) national security mission, including the possible suspension of the Section 702 program and potential loss of access to lawfully collected signals intelligence information on foreign intelligence targets that is vital to NSA’s foreign intelligence mission.”
The Electronic Frontier Foundation, which is arguing the case, vehemently questioned the government’s reasoning.
“It is not credible that, as the government contends, simply refusing to destroy during the next 18 hours the communications it has intercepted will cause ‘the possible suspension of the Section 702 program,'” EFF Legal Director Cindy Cohn wrote to Judge White.
“How can the preservation of these intercepted communications cause a ‘loss of access to lawfully collected signals intelligence information’?” she wrote. “That information will remain accessible even though it is being preserved.”
The NSA contends that the systems that manage the data and its deletion are too complex, and are not designed for a data backup like the kind that might be required. The claim puts the NSA in an awkward position, as it seems to argue that it cannot carefully manage the massive streams of data that its systems ingest everyday. Even for the government’s most sophisticated computer analysts, stopping the deletion of data and storing it instead, he wrote, “would require significant technical changes to these databases and systems.”
“Changes of this magnitude to database and systems architecture normally take months to engineer and test,” wrote the NSA Deputy Director Richard Ledgett. “To comply immediately with the Court’s order, the NSA may have to shut down all the databases and systems that contain Section 702 information. Such a shutdown would suspend acquisition of communications pursuant to Section 702 and analyst access to communications acquired under Section 702.”
Because this program is “the most significant tool in NSA’s arsenal for detecting, identifying, and disrupting terrorist threats,” he wrote, “The impact of a shutdown of the databases and systems that contain Section 702 information cannot be overstated.”
In a hearing on Friday, Judge White reversed his emergency restraining order, pending more information. “In order to protect national security programs, I cannot issue a ruling at this time. The Court rescinds the June 5 order,” Judge White said.
The emergency court order was requested by EFF lawyers after they happened to discover, in the course of emailing with their government counterparts, that crucial evidence was still not being retained.
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