DOJ’s Idea of an Appropriate Passive-Aggressive Response to Accusations They Destroyed Evidence: Destroy More Evidence

On Friday May 30, as I reported, EFF filed a motion accusing the government of destroying evidence it was obligated to keep in EFF’s NSA lawsuits.

Later that day, EFF Legal Director Cindy Cohn emailed her contact at DOJ, Marcia (Marcy) Berman, saying,

Jewel plaintiffs are okay with [a deadline extension] if the government can assure us that no additional information will be destroyed in the meantime.

As you can see, we went ahead and filed [the motion on spoliation].

The following Monday, after Cohn asked Berman, “Does that mean no additional information will be destroyed in the meantime?” Berman answered,

What it means is that we have already explained in our opening brief that we are in compliance with our preservation obligations and do not feel that we should have to make any further assurances or undertakings to accommodate plaintiffs’ need for additional time.

Later that day, Cohn reminded Berman that the Temporary Restraining Order covering destruction of information “including but not limited to … telephone metadata” remained in place. Cohn continued,

You appear to be saying that routine destruction of post-FISC material is continuing to occur regardless of the TRO; please confirm whether this is correct.

Berman responded, obliquely, yes.

The Court is presently considering whether the Government must preserve material obtained under Section 702 of FISA in the context of the Jewel/Shubert litigation. In the meantime, pending resolution of the preservation issues in this case, we have been examining with our clients how to address the preservation of data acquired under the Section 702 program in light of FISC imposed data retention limits (even though we disagree that the program is at issue in Jewel and Shubert).

Hoffman wrote a bunch more about “technical” “classified” blah blah blah, which I’ll return to, because I think it’s probably significant.

But for now, EFF filed for an emergency order to enforce the TRO issued back in March. Judge Jeffrey White has demanded a response from the government by noon tomorrow (they had wanted a week).

I can’t think of a more relevant NSA practice to a suit that relies significantly on Mark Klein’s whistle-blowing about the room where AT&T diverted and copied large amounts of telecom traffic than upstream 702 collection, in which AT&T and other telecom providers divert and copy large amounts of telecom traffic. While I’m not certain this evidence pertains to upstream — and not PRISM — EFF suggests that is included.

In communications with the government this week, plaintiffs learned to their surprise that the government is continuing to destroy evidence relating to the mass interception of Internet communications it is conducting under section 702 of the Foreign Intelligence Surveillance Act. This would include evidence relating to its use of “splitters” to conduct bulk interceptions of the content of Internet communications from the Internet “backbone” network of AT&T, as described in multiple FISC opinions and in the evidence of Mark Klein and J. Scott Marcus, ECF Nos. 84, 85, 89, 174 at Ex. 1

If it is, then it seems all the more damning, given that upstream collection is the practice that most obviously violates the ban on wiretapping Americans in the US.

EFF filed a motion accusing the government of illegally destroying evidence. And the government’s response was to destroy more evidence.

Update: The government has asked for an emergency stay of the Court’s June 5 order (which is actually a March 10 order, but the government doesn’t admit that) because NSA says so.

Undersigned counsel have been advised by the National Security Agency that compliance with the June 5, 2014 Order would cause severe operational consequences for the National Security Agency (NSA’s) 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

There’s something funky here — perhaps that some of this actually belongs to GCHQ? I dunno — which is leading the government to be so obstinate. Let’s hope we learn what it is.

Update: And EFF objected to DOJ’s request for a stay, pointing out what I did: that what they’re really asking for is blessing for ignoring the March 10 order.

7 replies
    • wallace says:

      “Dear government: thank you so much for caring about the law. /” unquote

      And you had the audacity to call me dumb.

  1. wallace says:

    quote” EFF filed a motion accusing the government of illegally destroying evidence. And the government’s response was to destroy more evidence.” unquote

    Marci..your accusation here is pretty heavy. I haven’t tied all of your evidence together yet, but if what you say is true..and an attorney can prove it..does this not have the weight of rule of law or not. I ask this in all sincerity.

  2. max says:

    Just a guess from thinking about how *not* deleting something could cause immediate intake-problems (as they seem to claim): If there’s a high-volume intake that is only kept for .. let’s say 30 days or something (tempora, the mystic-bahamas-telephone thingy?) then, if you can’t throw away the “old” stuff and only have the capacity for 30 (or 31, 32) days you’d have to stop getting “new” stuff.

    That could be a case that they might make, with “if we talk publicly about it everyone knows what our capabilities are (x days for type y things)” as a need for secrecy.

    • Myxl says:

      Something along the lines of what max suggests seems right. Part of the early Snowden releases was talk about GCHQ setting up a system that archived ALL internet traffic through the UK for something like, or with a goal of, 30 days. There are a couple ways the preservation order might pose technical issues: both of these speak to the NSA intercepting massive volumes of data under 702.

      (1) They have a GCHQ-style running buffer of almost everything they capture, but only enough storage for x days. To preserve the collected data, they would have to continuously expand their storage capacity at a rate they could not keep up with. The choices then become to retain data and not take in more, or ignore the preservation order.

      (2) They are intercepting and filtering essentially all internet communication content (with filtering of streaming video and other such categories to bring it down to “merely” 3% of total traffic), and then performing massive amounts of filtering and processing, but not necessarily retaining too much of the original content. If the order were viewed as requiring retention of the raw intercept data, they would have no infrastructure to retain what they get from “the firehose.”

      Particularized suspicion went out the window a long time ago. The mindset seems to be that when the enemy might be anyone and anywhere, everyone and everything is suspect and subject to surveillance.

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