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
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.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.
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....
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 materialsThis 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.I imagine there will be more very soon.
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.
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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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Contempt charges are way too easy for these guys, let's try throwing the guys in jail...
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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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Not so far-fetched
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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Repercussions
So why *wouldn't* they destroy the evidence?
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Re:
Of course, since it's a secret law, who knows.
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Blazing Saddles comes to mind.
Bart: And they are so *dumb*!
Maybe someone has realized how dumb they have been.
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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'.
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Children
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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Another possible explanation for how preservation causes loss
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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Relevant?
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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Re: Not so far-fetched
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Re: Another possible explanation for how preservation causes loss
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...
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Re: Another possible explanation for how preservation causes loss
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what the court ruling SHOULD have said:
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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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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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Re: Re: Another possible explanation for how preservation causes loss
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.
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Seriously?
"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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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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Re: Not so far-fetched
Can I haz a billion dollar government contract for fixing the problem now?
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Fat lot of good that would do, they run the jails!
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Laws are for the little people.
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I think I've seen this before...
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.
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Re: what the court ruling SHOULD have said:
DOJ response: Oh yeah? Who's gonna put us there, you old fart?
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Subtle as a sledgehammer
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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Not surprising
Consequences for being caught with the evidence: potentially more than nil.
Answer: destroy all the evidence.
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That's fine...
Then we can sort out who did what and send the traitors to jail!
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If they run out of disk space by saving the collected data while continuing to collect new data.
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Re: Re: Not so far-fetched
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.
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Re: Not so far-fetched
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Re: Re: Re: Not so far-fetched
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.
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Realtime backup or multiple copies of the Internet (and that's not the WWW) would be a rather audacious feat.
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Re: Re: Re: Not so far-fetched
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.
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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?
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Minification
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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Re: Minification
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Install splitters
so they can see what is really going on.
It's all about watching the watchers, isn't it?
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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.
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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.
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It's not that hard to understand
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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.
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