EFF Accuses the Government of Spoliation of Evidence

I’ve written about these accusations in the past. EFF got a preservation order in its NSA lawsuits back in 2008. Only after the government asked for permission to destroy phone dragnet data earlier this year did they learn the government has been destroying data relevant to their various suits for years.

But now they’ve written an aggressive motion asking for sanctions.

There is now no doubt that the government defendants have destroyed evidence relevant to plaintiffs’ claims. This case concerns the government’s mass seizure of three kinds of information: Internet and telephone content, telephone records and Internet records. The government’s own declarations make clear that the government has destroyed three years of the telephone records it seized between 2006 and 2009; five years of the content it seized between 2007 and 2012; and seven years of the Internet records it seized between 2004 and 2011, when it claims to have ended those seizures.
By destroying this evidence, the government has hindered plaintiffs’ ability to prove with governmental evidence that their individual communications and records were collected as part of the mass surveillance, something the government has vigorously insisted that they must do, even as a threshold matter. Although plaintiffs dispute that the showing the government seeks is required, the government’s destruction of the best evidence that plaintiffs could use to make such a showing is particularly outrageous.

[snip]

This is spoliation of evidence. A litigant has a clear legal duty to preserve evidence relevant to the facts of a case pending consideration by the court, and that duty requires preservation of all relevant evidence, defined as anything that is likely to lead to the discovery of admissible evidence. This duty is subject only to practical considerations, none of which the government has ever raised. Any private litigant who engaged in this behavior would be rightly sanctioned by the court; indeed many have been severely sanctioned for failure to preserve evidence in far less egregious circumstances.
This court has the power to order a broad range of remedies for spoliation, up to and including terminating sanctions. Plaintiffs here seek more modest relief: that the government be subject to an adverse inference that the destroyed evidence would have shown that the government has collected plaintiffs’ communications and communications records. Plaintiffs also request that the Court set a prompt hearing date on this matter in order to halt any ongoing destruction.

My favorite part — being  a bit of a timeline wonk — is the timeline showing all the broad claims the government made to ensure state secrets would cover even activities authorized by FISA, interspersed with what data the NSA was destroying when.

Then there’s this lesson in warrantless wiretapping.

The government overreaches in trying to limit plaintiffs’ complaint. For example, the government tries to use the fact that plaintiffs often characterize the surveillance as “warrantless” as indicating that the complaint doesn’t reach surveillance conducted under the FISC. But this characterization is absolutely true even as to the FISC-authorized surveillance. Whatever the legal import of the FISC orders, they are unequivocally not full Fourth Amendment warrants, and the surveillance conducted under them is “warrantless.” Thus, this court was exactly correct in July 2013 when it stated that Plaintiffs’ claim is “that the federal government . . . conducted widespread warrantless dragnet communications surveillance of United States citizens following the attacks of September 11, 2001.”

Given all the things the government destroyed here — such as the US person phone data collected without requisite First Amendment review, the Internet metadata that included content, and the US person communications collected under upstream collection, the EO 12333 collected metadata mingled with the PATRIOT authorized data  — they might well rather give EFF standing without all that data.

We shall see. But it does make some nice Friday afternoon reading.

 

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

16 replies
  1. anonymous says:

    When the NSA ‘destroys’ data, does that mean that all copies are purged – does it refer only to the bulk raw ingests – are there multiple corporate stores – (and probably, multiple ‘black’ repositories) – and what about dissemination to other agencies – could there be copies at FBI/CIA/DHS etc.? Could Edward Snowden file an amicus brief in this case?

  2. bloopie2 says:

    Why did EFF need the data preserved, for purposes other than standing? Isn’t everything else a strictly legal argument, the stuff of summary judgment rather than trial? If so, then this might actually work out well for EFF, as it gets them past the standing hurdle and on to the guts of the case.

  3. Peterr says:

    The timelines are nice, but I’m partial to the whole “you can’t have it both ways” section.

    The government now claims that any information about its mass surveillance under color of FISC orders was so far from being “relevant” to plaintiffs’ claims that it did not have a duty to preserve that information. Yet at the same time, in multiple declarations asserting the state secrets privilege over the last eight years, the government has informed this court that plaintiffs’ case “puts at issue,” its FISC-approved activities, that FISC-approved surveillance information “may relate to or be necessary to adjudicate plaintiffs claims,” or that the case “may implicate” its FISC-approved activities. Both of these assertions cannot be true. The information cannot both be “put at issue” by, relate[d] to,” or “implicate[d]” by plaintiffs’ claims, and be so irrelevant that the government does not even have to preserve it. And of course there is no reason, and no authority, for the government to assert the privilege over material that it did not believe was relevant to the case. But that is exactly what the government now claims to have done. For example . . .

    And I think you are spot on with you closing WAG. Someone decided it was better to take the hit from the courts in this case for destroying this stuff rather than have it open to discovery and potential introduction into evidence. They’d rather have an adverse inference than actual proof of what they’ve done. IANAL, but assuming an adverse inference in this case cannot be transferred to other litigation, this destruction would succeed in eliminating the possibility that a victory by EFF in this case could spaw a host of other litigation based on the evidence that EFF would have forced into public view. Someone at DOJ, DOD, or ODNI is very very nervous about where this case would lead.

  4. earlofhuntingdon says:

    I think the correct phrase is “spoliation” of evidence, as used by the EFF at the beginning of the cited paragraph two.

  5. Mauimom says:

    “such as the US person phone data ”

    Do you mean “personal”?

    In any case, a great entry, Marcy. Linked over at Naked Capitalism.

    • JohnT says:

      I’m 99.999999% sure it’s supposed to be person, rather than personal
      .
      As in, a US citizen, an individual

  6. wallace says:

    quote”Given all the things the government destroyed here — (snip) – they might well rather give EFF standing without all that data.” unquote..

    Notwithstanding charging Clapper for impersonating a human being.

  7. wallace says:

    quote”We shall see. But it does make some nice Friday afternoon reading.”unquote

    Haha..what do you do when you really want to break loose?

  8. wallace says:

    c’maaan… am I the only person on the planet visiting emptywheel on a Saturday evening?

    ya’d think the world ended.

    :)

  9. anonymous says:

    Facebook should be the first boycott target for the American civil liberties community.

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