Judge Says NSA Can Continue To Destroy Evidence

by Mike Masnick
Jun. 09, 2014

Well, this is unfortunate. After yesterday's back and forth between the DOJ and the EFF over the ongoing destruction of key evidence in the Jewel v. NSA case, the court ordered an emergency hearing for this afternoon. About an hour before the hearing, the DOJ presented its opposition to the temporary restraining order, arguing, basically, that it would be too damn complicated to stop destroying evidence in the case. Part of this is because the data collected under the Section 702 program apparently isn't just one big database, but is quickly fed into all sorts of other systems.
. Unlike the Section 215 telephony metadata program, which resides on a discrete computer systems architecture, communications acquired pursuant to Section 702 reside within multiple databases contained on multiple systems. Those databases and systems are designed to effectuate FISC-approved minimization procedures that require (with certain limitations) the destruction (purge) upon recognition of certain communications and the age-off of certain raw data within either two years or five years from the expiration of the certification authorizing its acquisition. Halting these purges and age-offs to preserve all Section 702 material, as we understand the Court to have ordered, would require significant technical changes to these databases and systems and would have the effect of forcing NSA into non-compliance with FISC-approved minimization procedures, thus placing the entire program in legal jeopardy
In short: because we're ordered to delete some data by the law to avoid spying on Americans, to now ask us not to delete any data would violate the law that says we have to delete some data. And, to figure out how to do this would be crazy confusing, because the NSA is a giant bureaucratic machine of spying, and you can't just throw a rock into it like that. Or something:
Changes of this magnitude to database and systems architecture normally take months to engineer and test; to comply immediately with the Courtís 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. NSA would lose access to what would be otherwise lawfully collected signals intelligence information on foreign intelligence targets that are vital to the performance of NSAís foreign intelligence mission. Section 702 is the most significant tool in NSAís arsenal for detecting, identifying, and disrupting terrorist threats to the United States and around the world. The impact of a shutdown of the databases and systems that contain Section 702 information cannot be overstated.
After the hearing, the judge sided with the NSA/DOJ, basically saying that the original temporary restraining order blocking the destruction of evidence (from back in March) still stands, but that the issue of whether or not it actually also covers data collected under Section 702 will be briefed at a later date, and until that time the DOJ/NSA are free to continue destroying evidence.

If there's some sort of silver lining to all of this, it's at least the acknowledgement that the NSA really does have a minimization process to not hang onto information it's not supposed to have, and that it's not immediately easy to turn off the process of getting rid of that data. But, still, that's a small consolation, given the seriousness of the issues in the case, and the fact that the destroyed evidence may highlight more serious abuses by the NSA in conducting surveillance on Americans.

Carolyn Jewel vs NSA (PDF)

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