DOJ Asks To Hang Onto Bulk Collections Longer, Citing Need To 'Preserve' Evidence It Has No Intention Of Presenting In Court

from the deck-stacking-at-its-finest dept

The DOJ is asking the courts to extend the amount of time it can hold onto bulk metadata records. The use-by date is normally five years, but the DOJ wants more time. It's stated reason for the request is to prevent spoliation of evidence that might be needed in the several lawsuits filed against the government since the exposure of the NSA's bulk collection programs.

Some things to note: the DOJ is asking for the first FISA order of 2014 to be amended to remove the 5-year expiration date, which seems to indicate that the amendment won't affect anything previously collected. The storage limit has been five years since at least 2006, so what the DOJ is asking for is for data to be held indefinitely, for an indefinite period going forward.

Obviously, this carves a rather large hole in the NSA's (already minimal) minimization procedures. The DOJ claims the retained data will be reserved for "non-analytic" purposes, but I don't really see how the it can make that assertion, considering the NSA, at this point, still collects and stores it. Searches could be limited to five years from date of search, but this presumes a lot of an agency run by people who routinely "explore the edges of the box." (Granted, historical data tends to become less useful the older it gets, but there are hardly any limits placed on the NSA's collection abilities, so it's really not a good idea to let the government start stripping these few stipulations away.)

What's absolutely disgusting about this request is the fact that the DOJ has no interest in allowing these records to be admitted as evidence. In fact, the DOJ has already withheld this information from several defendants, effectively preventing them from discovering where the government obtained the evidence being used against them. The DOJ is talking a good game about due process, etc., but its track record shows it's willing to keep this information hidden for as long as possible.

Before the leaks, the DOJ didn't even have to acknowledge it used these programs to gather evidence against defendants. Before the leaks, other national law enforcement and investigative agencies were given this evidence and instructed to construct a paper trail to cover up the origins. The DOJ can't really get away with this anymore, but that won't stop it from pretending national security concerns outweigh a defendant's need to know what evidence is being used and how it was derived. And that's not even addressing those already imprisoned using evidence the DOJ actively hid from defendants, as Marcy Wheeler at emptywheel points out.

Of course, it was only 24 hours ago when DOJ was last caught violating that principle in Section 702, abrogating a defendant’s right to know where the evidence against him came from. And there are a whole slew of criminal defendants — most now imprisoned — whose 702 notice DOJ is still sitting on, whose rights DOJ felt perfectly entitled to similarly abrogate (we know this because back in June FBI was bragging about how many of them there were). So I am … surprised to hear DOJ suggest it gives a goddamn about criminal defendants' rights, because for at least the last 7 years it has been shirking precisely that duty as it pertains to FISA.

Wheeler also notes that the DOJ may be pretending to be concerned about the lawsuits it's currently facing, but it expressed no similar concern in the years before Snowden's leaks exposed the NSA's programs.

[A]s EFF's Cindy Cohn pointed out to the WSJ, Judge Vaughn Walker issued a retention order in EFF’s 2008 suit against the dragnet.

"Ms. Cohn also questioned why the government was only now considering this move, even though the EFF filed a lawsuit over NSA data collection in 2008.

In that case, a judge ordered evidence preserved related to claims brought by AT&T customers. What the government is considering now is far broader."

At that point, the DOJ has no problem letting evidence against the NSA expire, but now it wants an indefinite extension to records going forward, using the pretense that it cares about due process as leverage. The NSA wins either way. Longer retention means more access to the collection, on or off the books. And it knows the incredibly misnamed Dept. of Justice will do its best to keep collected surveillance data out of the harsh judicial sunlight.

Filed Under: bulk collection, doj, fisa, nsa, privacy