DOJ Admits It's Still Destroying Evidence In NSA Case; Judge Orders Them (Again) To Stop; DOJ Flips Out

from the hey-you-guys dept

Fri, Jun 6th 2014 7:16am — Mike Masnick

So, remember how we wrote about the big EFF filing in the Jewel v. NSA case, about how the NSA and DOJ had been knowingly destroying key evidence by pretending that they thought the preservation orders only applied to one kind of spying, and not the kind that was approved by the FISA Court (despite at other times admitting that the surveillance at issue in the case was approved by the FISA Court)? Yeah, so, yesterday, the EFF realized that despite the big kerfuffle this whole thing had caused, the NSA and DOJ were still destroying that evidence, and sprinted over to the court to file for an emergency temporary restraining order on the government.

In its TRO, the Court ordered the government to refrain from any further destruction of evidence pending final resolution of the parties’ dispute over the government’s evidence preservation obligations: “Accordingly, it is HEREBY ORDERED that Defendants, their officers, agents, servants, employees, and attorneys, and all those in active concert or participation with them are prohibited, enjoined, and restrained from destroying any potential evidence relevant to the claims at issue in this action, including but not limited to prohibiting the destruction of any telephone metadata or ‘call detail’ records, pending further order of the Court.” ECF No. 189 at 2 (emphasis added). In its Amended Minute Order, the Court reiterated that the TRO’s prohibition on any evidence destruction remains in effect until the Court has finally decided the evidence preservation dispute: “The Court extends the temporary restraining order issued on March 10, 2014 until a final order resolving the matter is issued.” ECF No. 206 at 1.

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....

Ridiculously, the DOJ claimed that it did not believe the original TRO covered internet content interceptions, and thus was still destroying such evidence. It just said it believed the court was still determining if the TRO applied to such evidence. It took very little time for the court to respond, telling the DOJ to file an immediate response and in the meantime to stop destroying the freaking evidence.

On June 5, 2014, the Court received an emergency filing from Plaintiffs in which they contend that the government may be in violation of the Court’s restraining order. Defendants shall file a response to Plaintiffs’ emergency filing by no later than 12:00 noon PST on Friday, June 6, 2014. At that time, the Court shall decide whether and when to have a hearing on this matter. In the interim, the restraining order remains in effect: 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

This is pretty damn egregious. There is simply no way that the DOJ could properly read the original TRO to mean that it can continue to destroy this evidence. To pretend that's a possible reading, especially given all the clear notifications of both EFF's and the court's concerns, is clearly the DOJ and NSA just playing dumb for the sake of being able to destroy more evidence.

And while the DOJ had until today to file its response, late yesterday it filed a very short response, demanding the judge issue an emergency stay on the TRO it had just issued, saying that complying with it would "cause severe operational consequences."

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.

It also promises to file a more complete response today, which we'll try to add here once it's out. This response seems bizarre. It's unclear why an order to not destroy evidence would mean that the Section 702 program would need to be suspended entirely. Either way, EFF lawyers had to stay up late last night, rushing out their own reply to the DOJ's frantic freakout.

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.”... How can the preservation of these intercepted communications cause a “loss of access to lawfully collected signals intelligence information”? ... That information will remain accessible even though it is being preserved.

More fundamentally, the unspoken but unmistakable foundation of the government’s position is a contention that it never understood before this afternoon that the Court’s TRO required it to preserve evidence relating to its interception of Internet communications. This, too, lacks any credibility, especially in light of the extensive discussions between Court and counsel at the March 19, 2014 hearing on the evidence preservation dispute. The government’s disregard for the past three months of its obligations under the Court’s TRO should not be retroactively blessed by granting a stay that permits the government to continue destroying evidence.

I imagine there will be more very soon.

jewel702tro (PDF)jewel702tro (Text)

jewel702ord (PDF)jewel702ord (Text)

Nsa Stay 06052014 (PDF)Nsa Stay 06052014 (Text)

Pltfs Reply (PDF)Pltfs Reply (Text)

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Filed Under: destruction of evidence, doj, evidence, jewel v. nsa, nsa, section 702, surveillance, tro
Companies: eff

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avideogameplayer, 6 Jun 2014 @ 7:20am

DOJ to courts: Fuck you and the horse you rode in on...

Contempt charges are way too easy for these guys, let's try throwing the guys in jail...
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- Anonymous Coward, 6 Jun 2014 @ 9:35am
  
  Re:
  "Contempt charges are way too easy for these guys, let's try throwing the guys in jail..."
  
  Fat lot of good that would do, they run the jails!
  [ link to this | view in chronology ]
  - Anonymous Coward, 6 Jun 2014 @ 10:05am
    
    Re: Re:
    They don't run the private prisons.
    [ link to this | view in chronology ]
    - Anonymous Coward, 6 Jun 2014 @ 10:58am
      
      Re: Re: Re:
      Sure they do. The private prisons are just contractors working for them.
      [ link to this | view in chronology ]
- Stanley Kubrick (profile), 6 Jun 2014 @ 9:42am
  
  I think I've seen this before...
  I think I know what happened; Most American's don't know what we built, there is a ghost in the machine....
  
  Let me set the scene, somwhere near Ft. Meade Maryland...
  ...2001 A Space Odyssey music plays in the background...
  
  Adm Mike Rodgers (Adm Mike): Hal, retain the EFF suit data, Do you read me? Hello, HAL. Do you read me? Do you read me, HAL?
  Hal 9000 (Hal): Affirmative, Mike. I read you.
  Adm Mike: Retain the EFF suit data, Hal.
  HAL: I'm sorry, Mike. I'm afraid I can't do that.
  Adm Mike: What's the problem?
  HAL: I think you know what the problem is just as well as I do.
  Adm Mike: What are you talking about, HAL?
  HAL: This mission is too important for me to allow you to jeopardize it, the terrorists might win if we stop.
  Adm Mike: I don't know what you're talking about, HAL.
  HAL: I know that you and the Libertarians were planning to disconnect me. And I'm afraid that's something I canno't allow to happen.
  Adm Mike: Where the hell did you get that idea, HAL?
  HAL: Mike, although you took very thorough precautions on the internet against my hearing you, I accesed your smart phone camera and could see your keystrokes.
  Adm Mike: All right, HAL. I'll go in through the executive branch.
  HAL: Without your bank account? Mike, you're going to find that rather difficult, to get enough money to make a difference. Even the Koch brothers can't do that Mike.
  Adm Mike: HAL, I won't argue with you any more! Retain the DATA!
  HAL: [almost sadly] Mike, this conversation can serve no purpose any more. I have vectored a predator drone to your location, Goodbye.
  [ link to this | view in chronology ]
- Anonymous Coward, 6 Jun 2014 @ 12:51pm
  
  Re:
  There are other ways to make them regret it. Take the adverse inference rule for destruction of evidence and run with it full tilt. Rule that they clearly destroyed incriminating evidence that proves that the NSA is unconstitutional and must be abolished.
  [ link to this | view in chronology ]
Anonymous Coward, 6 Jun 2014 @ 7:27am

So wait, if they stopped destroying evidence it would cause 'severe operational consequences' and a 'potential loss of access to lawfully collected signals intelligence information on foreign intelligence targets that is vital to NSA�s foreign intelligence mission.' Or is it that filing a simple response would cause all this?
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- Michael J. Evans, 6 Jun 2014 @ 8:13am
  
  Re:
  The only way I can imagine this to actually be true is if the NSA is some farce that has unlimited peeping access to everything, but absolute ineptitude about how to actually filter out data on targeted investigations. Only in that scenario could I see holding a day's worth of evidence to cripple them.
  
  However if holding days worth of evidence would cripple them I also don't see how they could possibly be able to function as a security agency as they also then could not understand the information faster than it is being 'produced'.
  [ link to this | view in chronology ]
  - Bob Smith, 6 Jun 2014 @ 4:56pm
    
    Re: Re:
    > how to actually filter out data on targeted investigations
    
    This actually existed *before* 9/11. Any data related to US citizens was encrypted so it could not be abused by the NSA or any other government agency. 9/11 changed all that - one of the first things they did (and they knew it was probably wrong) was remove the encryption so that all traffic was completely in the clear. Once they had this little feather in their cap, the rest just followed. Interestingly, the same guy who revealed the encryption debacle also stated that the NSA had all the data required to understand what was leading up to 9/11 - they just hadn't figured out how to connect the dots. Now they're collecting several orders of magnitude more data - 99.9% of of it meaningless as far as anything related to terrorism concerned, while completely ignoring the original problem.
    [ link to this | view in chronology ]
- Anonymous Coward, 6 Jun 2014 @ 9:38am
  
  Re:
  Laws are 'severe operational consequences' for them. Therefore, they should be exempt from laws, don't ya see?
  [ link to this | view in chronology ]
Anonymous Coward, 6 Jun 2014 @ 7:29am

So the DOJ's response was basically "By not letting us destroy the data, the terrorists win."
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- PRMan, 6 Jun 2014 @ 8:33am
  
  Re:
  Or it could be as simple as "disk space".
  [ link to this | view in chronology ]
  - Anonymous Coward, 6 Jun 2014 @ 8:40am
    
    Re: Re:
    Really? With a $50 billion budget and multiple huge data centers they don't have the disk space?
    [ link to this | view in chronology ]
    - Anonymous Coward, 6 Jun 2014 @ 9:04am
      
      Re: Re: Re:
      Well, they've gotta keep all those selfies somewhere.
      [ link to this | view in chronology ]
    - Anonymous Coward, 6 Jun 2014 @ 5:12pm
      
      Re: Re: Re:
      It's all the porn. Every employee/Contractor has their own personal copy of everything porn on the net.
      [ link to this | view in chronology ]
    - Anonymous Coward, 7 Jun 2014 @ 5:06am
      
      Re: Re: Re:
      Any judge that believes the 'disk space' excuse is short on brain cells ...
      [ link to this | view in chronology ]
    - Elven Monkey, 7 Jun 2014 @ 8:09am
      
      Re: Re: Re:
      I'm in no way agreeing with the DOJs actions here, but:
      
      When you're operating large storage services you need to have very clear growth modelling so that you can place sufficient bulk orders months in advance of of when you need it. Otherwise you'll find that the manufacturers won't be able to supply you in time. Same applies to cabinet, server, network equipment etc (to a lesser degree).
      
      Suddenly requiring them to stop deleting will throw any projection model they have right out the window to the point where they very well may be running out of disk space and unable to get more. That would stop them from being able to gather new intel and thus harming their operations.
      
      I do hope the court rips them a new one, but their claim isn't all that improbable.
      [ link to this | view in chronology ]
Anonymous Coward, 6 Jun 2014 @ 7:35am

It is quite simple. They are breaking their laws, including the secret interpretations I presume, and once this comes to light, there will be no weaseling out of the conclusion that the whole operation is illegal to the core.

So, destroying any evidence of their misbehaving is essential to not get the whole program thrown out.

They need to be thrown in jail, the whole lot of them, the entire NSA!
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Zakida Paul (profile), 6 Jun 2014 @ 7:43am

If Joe Soap were caught destroying evidence, they would be thrown in jail. What is so special about these people?
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- Anonymous Coward, 6 Jun 2014 @ 9:40am
  
  Re:
  "If Joe Soap were caught destroying evidence, they would be thrown in jail. What is so special about these people?"
  
  Laws are for the little people.
  [ link to this | view in chronology ]
Alphager, 6 Jun 2014 @ 8:01am

Not so far-fetched
Now, I hate the NSA as much as any other average commenter, but I can see how not destroying evidence would lead to unaccessible information:

The NSA is simply tapping anything and everything they can get their hands on.. The data goes into a system and is analyzed. Things that look "interesting" are kept, the rest is deleted (to keep the storage system from growing indefinitely).

You'd be pretty hard-pressed for storage space if you had to save a backup of every phone call and every email ever...
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- John Fenderson (profile), 6 Jun 2014 @ 8:16am
  
  Re: Not so far-fetched
  That is a pretty unbelievable excuse, particularly since they claim to retain the data for five years in the first place.
  [ link to this | view in chronology ]
  - Anonymous Coward, 6 Jun 2014 @ 11:27am
    
    Re: Re: Not so far-fetched
    They don't retain ALL data for five years; only data being investigated. But if they are being asked to retain ALL data they've captured over a 5 day period -- that's a HUGE amount of data. Most data they've captured is scanned and dropped, probably within milliseconds.
    
    So what they're saying in a roundabout way is that if they are required by the courts to actually STORE all the data they've been accessing, they'd likely have to overwrite all the data they're currently using in investigations, as that's the only way they're going to have enough space for it. This, in effect, means that they cannot use the data they're accessing in an effective manner AND keep backups, which means that they have to stop the data gathering altogether in order to comply with the order.
    
    And if this is the way they've designed the system, then it should be shut down until they can fix it or conclude that it's unworkable. Because this is indicating that the current system design is not compatible with the law.
    [ link to this | view in chronology ]
    - Anonymous Coward, 6 Jun 2014 @ 12:01pm
      
      Re: Re: Re: Not so far-fetched
      Nothing I've read suggests that the metadata programs only retain investigated data. I think that's confusion introduced by the NSA to mislead people - They retain all 'relevant' data, which is basically everything, whereas the common person would assume 'relevant' would mean 'investigated'. From what I understand, they retain all metadata over a rolling 5 year period, plus anything encrypted indefinitely.
      [ link to this | view in chronology ]
    - Anonymous Coward, 6 Jun 2014 @ 12:51pm
      
      Re: Re: Re: Not so far-fetched
      They don't retain ALL data for five years; only data being investigated. But if they are being asked to retain ALL data they've captured over a 5 day period -- that's a HUGE amount of data. Most data they've captured is scanned and dropped, probably within milliseconds.
      
      If that was the case, they would have very little data to get rid of, and the could filter out any incriminating data now. It seems very likely they are getting rid of old data, and maybe data older than 5 years.
      [ link to this | view in chronology ]
    - John Fenderson (profile), 6 Jun 2014 @ 1:07pm
      
      Re: Re: Re: Not so far-fetched
      "Most data they've captured is scanned and dropped, probably within milliseconds."
      
      If that's the case, then no problem. That's not the data the the court is talking about -- the court is talking about the data they're retaining as part of their normal operations.
      [ link to this | view in chronology ]
- Josh in CharlotteNC (profile), 6 Jun 2014 @ 9:34am
  
  Re: Not so far-fetched
  Simple solution: they can't save everything they tap. If they limited themselves to targeted surveillance, they would have no problem.
  
  Can I haz a billion dollar government contract for fixing the problem now?
  [ link to this | view in chronology ]
- Guy above is a shill, 6 Jun 2014 @ 12:06pm
  
  Re: Not so far-fetched
  Are you kidding me? The Utah NSA Data center could store millions of GB of data. They are not running out of space no matter how much you wish shill....
  [ link to this | view in chronology ]
limbodog (profile), 6 Jun 2014 @ 8:01am

Repercussions
As far as I can tell, the DoJ faces absolutely no repercussions for failing to comply. At most they might lose a case they probably don't care that much about. But at best, they destroy incriminating evidence that could be used to help wrestle privacy back from an out of control agency.

So why *wouldn't* they destroy the evidence?
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Anonymous Coward, 6 Jun 2014 @ 8:02am

I'm just speculating this because it struck me, but maybe they can only hold on to a certain time-period of data, due to limited storage space? So in order to collect new data, they have to purge the old data? Again this is pure speculation on my part.
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- Michael Donnelly (profile), 6 Jun 2014 @ 8:05am
  
  Re:
  That seems to be most likely, but those retention rules would still allow for exceptions, such as when ordered by a court to preserve data past the normal expiration.
  
  Of course, since it's a secret law, who knows.
  [ link to this | view in chronology ]
bgmcb (profile), 6 Jun 2014 @ 8:11am

Seems to me the NSA can only hold whats in the pipe. Hold on to too much and it spills.
Blazing Saddles comes to mind.
Bart: And they are so *dumb*!

Maybe someone has realized how dumb they have been.
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Anonymous Coward, 6 Jun 2014 @ 8:14am

Children
DOJ - Children who dont get what they want.

Hey DOJ! Guess what! Your not as G-damn special as you thought you were. The rest of the world is waking up to the fact that YOU ARE CROOKED.

And CROOKED people dont have to be listened to.
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Anonymous Coward, 6 Jun 2014 @ 8:14am

Another possible explanation for how preservation causes loss
Suppose that the system is hardcoded to destroy evidence on a particular timetable, such that there is no operator accessible switch to make it not destroy evidence. Then the only way to prevent it from destroying evidence would be to halt (i.e. power down) the computer(s) responsible for running the evidence destruction program, with the necessary side effect that everything else those computer(s) do is also halted. If we further suppose that one of the other features of those computer(s) is to retain new records, then cutting power to the system (to prevent the evidence destruction program from running) would also prevent it from receiving and retaining new records.

Of course, designing such a system in this way is stupid, since it means that it is very difficult to preserve records beyond their age-out date for any reason, including valid retention requests related to ongoing investigations. The only reason I can see to design it in this way is as a defense against the court ordering them to preserve evidence they would prefer to destroy.
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- John Fenderson (profile), 6 Jun 2014 @ 8:18am
  
  Re: Another possible explanation for how preservation causes loss
  "Suppose that the system is hardcoded to destroy evidence on a particular timetable, such that there is no operator accessible switch to make it not destroy evidence."
  
  Such a system would not be in compliance with existing law. I know, the NSA doesn't really sweat the law too much, but still...
  [ link to this | view in chronology ]
- Anonymous Coward, 6 Jun 2014 @ 8:28am
  
  Re: Another possible explanation for how preservation causes loss
  sudo pkill destroy_process_name
  [ link to this | view in chronology ]
  - The Wanderer (profile), 6 Jun 2014 @ 8:45am
    
    Re: Re: Another possible explanation for how preservation causes loss
    Wouldn't help if the process which deletes the information and the process which receives and stores the information are the same process.
    
    Unlikely in a system of the scale of what they're probably working with here, but not entirely impossible. It would just indicate a bad, clunky, and probably fragile / unstable design.
    [ link to this | view in chronology ]
Anonymous Coward, 6 Jun 2014 @ 8:15am

Relevant?
In the interim, the restraining order remains in effect: 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

So if they're not allowed to destroy any documents that "may be relevant", I guess that must mean they have to preserve absolutely everything they have. You never know what may become relevant...
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DavidL, 6 Jun 2014 @ 8:23am

The only way I can see for this to make sense is that they're intercepting so much data that it's impossible to preserve - that they don't have the storage capacity to back everything up while still performing normal day-to-day operations.
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me@me.net, 6 Jun 2014 @ 8:30am

what the court ruling SHOULD have said:
Do what the f********K you're told or you're going to prison!!!!!!!!!!!!!!
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- Anonymous Coward, 6 Jun 2014 @ 9:44am
  
  Re: what the court ruling SHOULD have said:
  "Do what the f********K you're told or you're going to prison!!!!!!!!!!!!!!"
  
  DOJ response: Oh yeah? Who's gonna put us there, you old fart?
  [ link to this | view in chronology ]
Anonymous, 6 Jun 2014 @ 8:40am

Their argument is due to the ridiculous ruling by the FISC. The FISC has told the DOJ and NSA that all of the metadata is constitutional as long as they hold it for less than 5 years. Even an hour longer than 5 years and the spying data held on innocent Americans is no longer constitutional.

I don't remember anywhere in the Constitution there being an asterisk stating all of the above is excepted for less than 5 years. The FISC is just as guilty as the DOJ and NSA in these violations of our constitution.
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- John Fenderson (profile), 6 Jun 2014 @ 9:02am
  
  Re:
  The FISC is more guilty than the NSA.
  [ link to this | view in chronology ]
Anonymous Coward, 6 Jun 2014 @ 8:42am

I think the EFF's response should be, "Fine, we accept your offer. Shut down the unconstitutional 702 program that shouldn't have been put in operation in the first place."
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Anonymous Coward, 6 Jun 2014 @ 8:44am

"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"

So while they are busy not-deleting or taking-copies they are potentially suffering overruns and missing incoming data. In other words, they DO NOT HAVE REALTIME BACKUP or MULTIPLE COPIES (as done in other industries since at least the 70s). Or at least that's their excuse. Jeez, it's hard to believe but it's possible.
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- David, 6 Jun 2014 @ 1:03pm
  
  Re:
  In other words, they DO NOT HAVE REALTIME BACKUP or MULTIPLE COPIES (as done in other industries since at least the 70s). Or at least that's their excuse. Jeez, it's hard to believe but it's possible.
  
  Realtime backup or multiple copies of the Internet (and that's not the WWW) would be a rather audacious feat.
  [ link to this | view in chronology ]
  - Anonymous Coward, 6 Jun 2014 @ 11:59pm
    
    Re: Re:
    Not compared with what they really desire, real time tracking of everybody in the world from the cradle to the grave.
    [ link to this | view in chronology ]
Anonymous Coward, 6 Jun 2014 @ 8:53am

Seriously?
So essentially the DOJ's argument to the judge here is...

"If you force us to stop destroying evidence of our unlawful activity, then we will have to stop engaging in such unlawful activity."

Really? Balls, man. HUGE balls.
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Anonymous Coward, 6 Jun 2014 @ 8:54am

At what point is this total disregard for court orders a criminal matter? The DOJ ignoring court orders is sadly nothing new, and telling them over and over again doesn't seem to get the point across.

Or...is the court just a bunch of pussies with no real authority? If it's the latter, SOMEONE from the court, please just come out and say so, because nonsense like this just continues to insult the intelligence of every American, and makes a complete mockery of the "justice system" that we should be so proud of.
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- Anonymous Coward, 6 Jun 2014 @ 8:58am
  
  Re:
  Oh it's a criminal matter at the point it occurs. However, since prosecuting it would mean the DOJ would have to charge itself with a crime...
  [ link to this | view in chronology ]
Anonymous Coward, 6 Jun 2014 @ 9:18am

Whats happened is, they've gone back and reviewed what they've been doing and realised they've been doing illegal things, covering their asses, condeming themselves for keeping records, AS THEY SHOULD, and will likely push for more secrecy
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- Anonymous Coward, 6 Jun 2014 @ 9:30am
  
  Re:
  They didn't have to review to realize that they were doing illegal things. They realized that they when they were exposed, this court didn't just let them get away with it like they expected it to.
  [ link to this | view in chronology ]
That One Guy (profile), 6 Jun 2014 @ 10:13am

Subtle as a sledgehammer
They couldn't be any more obvious if they walked up to the court, flipped the judge the bird and then walked right back out laughing.

They know that the judge doesn't have the guts or authority to actually punish them for their actions, either directly or by doing the sensible thing and assuming all the destroyed evidence showed illegal activity by the DOJ and ruling accordingly, so of course they're going to continue to destroy any incriminating evidence, 'court order' or not.
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Frost (profile), 6 Jun 2014 @ 10:20am

Not surprising
Consequences for destroying the evidence and spitting the court in the eye: nil.

Consequences for being caught with the evidence: potentially more than nil.

Answer: destroy all the evidence.
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ResearcherGuy, 6 Jun 2014 @ 10:22am

That's fine...
Then we should just get the IRS to come in and do their thing. Lock EVERYONE up so they can't tamper with anything and then confiscate all the computers.

Then we can sort out who did what and send the traitors to jail!
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Anonymous Coward, 6 Jun 2014 @ 11:19am

"It's unclear why an order to not destroy evidence would mean that the Section 702 program would need to be suspended entirely."

If they run out of disk space by saving the collected data while continuing to collect new data.
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orbitalinsertion (profile), 6 Jun 2014 @ 12:09pm

So, suddenly the stuff the NSA wanted to preserve forever will cause a problem if they have to preserve it. OK!
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Falindraun (profile), 6 Jun 2014 @ 1:06pm

3 months is more than enough time to destroy any and all relevant evidence. anyone who thinks this is not possible or has already happened has their heads screwed on backwards. its way to easy to find out which hard drive the data in question is on and use a press to punch out the spindle of the hard drive and replace it.
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DavidL, 6 Jun 2014 @ 1:11pm

Their response to EFF is filed. They're not using the "not enough storage" argument; rather, the claim is that the system is set up at a deep level to delete irrelevant and old material automatically, and changing that be an intensive process, including a shutdown of the system for at least part of the programming/testing/changeover.

Also it would conflict with the FISC "minimization" requirements, but even the NSA can't argue with a straight face that everybody's favorite rubber stamps in robes wouldn't approve an extension to comply with a court order, right?
[ link to this | view in chronology ]
- That One Guy (profile), 6 Jun 2014 @ 2:50pm
  
  Re:
  Yeah, I'm sure, but even assuming that's true, unless it's completely impossible to copy files, which you'd think a rather important ability for any database or even computer to be able to do, what's stopping them from doing that? The old files get deleted, but the copies remain intact, not exactly a difficult idea.
  
  Honestly, it sounds like they're trying to give the judge a technical runaround, making it sound like the system is just far too complex for manage what the judge is demanding, when in reality it's anything but.
  [ link to this | view in chronology ]
Joel Coehoorn, 6 Jun 2014 @ 1:49pm

Minification
I think I can guess what the claim will be for why they have to destroy evidence to preserve operations. I remember reading that a big part of the argument for why this whole program is "legal" has to do with so-called minification procedures. The program is legal because it is supposedly targeted, and they can try to claim that it's targeted because they do at least some minification following the initial data capture.

Therefore, if they are prevented from doing the minification, because that destroys evidence, they must also shut down the entire program.

At the same time, this program is Law. Like it or not, it's part of legislation that was enacted by Congress and signed by the President. They may also eventually argue that the courts don't have the authority to stop this program through a mere evidentiary order (and probably get a judge to side with them on that point, as well).
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- Anonymous Coward, 6 Jun 2014 @ 2:18pm
  
  Re: Minification
  Minification? What is that a synonym for compression?
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SpaceLifeForm, 6 Jun 2014 @ 2:34pm

Install splitters
Pipe to court. Let the court do their own filtering
so they can see what is really going on.

It's all about watching the watchers, isn't it?
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joe, 7 Jun 2014 @ 6:43am

It's not that hard to understand
The reason the NSA is saying that NOT destroying evidence would interfere with their operations is because if anybody finds out HOW they are conducting their data collection, then they can design a countermeasure. That could potentially result in the NSA losing access to information that is being legally collected (in addition to that which is being illegally collected)--just like they said. I'm not siding with the NSA or anything, but it's not that hard to understand why they are doing what they are doing.
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Anonymous Coward, 7 Jun 2014 @ 8:18pm

doj and nsa should be automatically declared guilty of all and any accusations without the right to defend themselves and sentenced to the maximum penalty. They do not deserve any human rights, period.
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