DOJ Apologizes For Misleading FISC Concerning Evidence; Hints Strongly That It Used Opportunity To Destroy Evidence

from the evidence,-who-needs-it? dept

A few weeks ago, we noted that FISC Judge Reggie Walton was quite reasonably pissed off at the DOJ for directly withholding key information about evidence in a series of lawsuits concerning NSA surveillance programs. The full details are a bit down in the weeds, but the short summary is that there's been some debate over whether or not the government needs to retain surveillance data because it's evidence in these cases, or if it needs to destroy the surveillance data, as required by the rules over its holding of the data. There's been a bit of back and forth over all of this, but the DOJ apparently directly withheld from the FISC a request by EFF lawyers to inform the court that a data preservation order should cover two of the key NSA surveillance cases that it has been involved in for years (since well before the Snowden disclosures). The DOJ not only did not inform the court, but it also appears to have tried to dissuade the lawyers from raising the issue. Judge Walton ordered the DOJ to explain itself, and it gives a long apology, repeatedly insisting that it didn't believe those cases were related, since they were focused on surveillance data ordered by the President, rather than the FISA Court -- a weak excuse at best:

Based upon the nature of the claims made in Jewel and Shubert, which the Government has always understood to be limited to certain presidentially authorized intelligence collection activities outside FISA, the Government did not identify those lawsuits, nor the preservation orders issued therein, in its Motion for Second Amendment to Primary Order filed in the above- captioned Docket number on February 25, 2014. For the same reasons, the Government did not notify this Court of its receipt of plaintiffs' counsel's February 26, 2014, e-mail. With the benefit of hindsight, the Government recognizes that upon receipt of plaintiffs' counsel's e-mail, it should have made this Court aware of those preservation orders and of the plaintiffs' disagreement as to their scope as relevant to the Court's consideration of the Government's motion and regrets its omission. The Government respectfully submits that in light of this submission, and this Court's Opinion and Order dated March 12, 2014, granting the Government's motion for temporary relief from the destruction requirement in subsection of the Court's Primary Order, no additional corrective action on the part of the Government or this Court is necessary.

It goes on for much longer trying to suggest that this was all just an honest mistake, and how could it have possibly realized that the lawyers for the plaintiffs in those cases might think the issue of preserving their evidence was related to similar questions over preserving evidence of other NSA cases. It insists that it really was just focused on the more recent cases that were filed post-Snowden ("filed after last year's unauthorized public disclosure concerning the collection of telephony metadata pursuant to FISA authority") and hadn't even considered how it related to older cases concerning NSA surveillance.

The Government did not notify the Court of Jewel and Shubert in the Motion because the Government has always understood those matters to challenge certain presidentially authorized intelligence collection activities and not metadata subsequently obtained pursuant to orders issued by this Court under FISA, and because the preservation issues in those cases had been previously addressed before the district court in which those matters are pending. Jewel and Shubert, filed in 2008 and 2007, respectively, challenge particular NSA intelligence activities authorized by President Bush after the September 11, 2001 terrorist attacks without statutory or judicial authorization.

As the DOJ goes on to explain, it assumed the preservation issues in the Jewel and Shubert cases were settled, and therefore irrelevant to the FISA issue (especially since, in its mind, the two sets of cases covered different programs). Thus, the DOJ claims, its emails dissuading the lawyers from raising the issue weren't so much about silencing those lawyers and hiding information from FISC, but were a true misunderstanding, in that it was just letting those lawyers know the issues were unrelated, as well as a desire (no joke) to not bother the FISC with unnecessary distractions.

In particular, the request in its February 28 email that counsel for the Jewel plaintiffs "forebear from filing anything with the FISC, or [the district court], until we have further opportunity to confer" was a good faith attempt to avoid unnecessary motions practice in the event that the issue could be worked out among the parties through the Government's provision of an unclassified explanation concerning its preservation in Jewel and Shubert. Accordingly, the Government did not bring the Jewel plaintiffs' February 25 email to this Court's attention.

Of course, there's still the big question of, between the two FISA court orders, whether or not the DOJ did, in fact, destroy some of the evidence. And, a follow-up correction from the government very strongly suggests that it absolutely did use the opportunity to destroy evidence. The follow-up is a correction to a footnote, in which the DOJ makes it clear that "consistent with the Government's understanding" (which appears to be mistaken) and "prior to" the more recent filing, "the Government complied with this Court's requirements that metadata obtained by the NSA under Section 215 authority be destroyed no later than five years after their collection."

What that almost certainly means is that the NSA destroyed the metadata collected up until 2009, which likely is relevant to the Jewel and Schubert cases, even though the lawyers in those cases had alerted the DOJ of these concerns. For all of the DOJ's "apologies" in the first document, this certainly seems very convenient for the US government. And, as Marcy Wheeler notes, the destroyed evidence may have included "cover almost all of the phone dragnet violations discovered over the course of 2009." Convenient. But the DOJ is really, really sorry about it. Really.

Filed Under: collection, destruction of evidence, doj, fisa court, fisc, jewel, metadata, nsa, preservation, reggie walton, shubert, surveillance
Companies: eff

Corporations Hiring Their Own Reporters

from the business-model-fun dept

A year ago, I was fascinated by the news that Miller Brewing Company had hired its own journalist to create a news blog all about beer. It wasn't just about Miller, but about the overall beer/brewing market. To me, this was a fascinating, if very narrowly focused, example of where content and advertising are merging in a good way. In such a scenario, if it goes well, everyone can benefit. The reporter did plenty of real reporting, even breaking stories about competitors. Everyone knew that the site was from Miller, so there was nothing secretive about it, and anyone could take that "bias" into account. But it was an interesting model for advertising, content, reporting and journalism... all wrapped up in one. Unfortunately, it looks like it didn't work out. Without much of an explanation, the blog shut down last fall. Perhaps the market was too niche. Perhaps the economic collapse was an issue.

Still, that doesn't mean the idea itself is bad -- and, in fact, we're actually helping some companies do something quite similar via the Insight Community (if you want to know more about that, just ask). So it's interesting to see yet another example of this in action as well. Salon's Future of Journalism blog points us to a Fast Company story about a journalist who left a newspaper job to take a job with Carpenter Co., makers of cushioning. But he's not reporting on that. He's reporting on life in Stephenville, Texas, (which isn't even where the company is based). But the idea is to create interesting and compelling content that's worthwhile just as content.

Of course, it certainly makes Carpenter look good ,as well. And, there's a new music business model hook involved in all of this, as well. Apparently, Stephenville is where the singer Jewel lives, and part of this whole effort is to help market her new album, which (conveniently) has a tie-in to Carpenters' bedding cushions in that the album is called Lullaby.

Now, I'm sure some will naysay this whole thing, and insist that it's not journalism, it's bad advertising and it's a bad business model for music to boot. But, honestly, I have trouble seeing what the problem is here. It's a neat experiment (for a limited time) where everything is entirely upfront (no one's being tricked), new music is getting paid for and promoted, interesting journalism work is being done and the company footing the bill gets some nice promotion, without having to ram a marketing message everyone would ignore down their throat. That seems to be a win, all the way around. Obviously, we're a bit biased, since we're powering some similar efforts by other companies, as well, but that's why we started doing such things with the Insight Community. It makes a ton of sense and solves a bunch of different problems in one single effort. Once again... we're reminded that if there's a need, business models will be created to solve that need. And this one is clearly one we believe in. Still, for those who still think this is somehow a bad thing for journalism, can someone explain how it's any different from the fact that GE employs a ton of journalists by owning NBC? Or that Disney employs a ton of journalists in owning ABC? This is the same thing, but on a much smaller scale.

Filed Under: jewel, journalism, reporting, sponsors, stephenville
Companies: carpenter co.