NSA Admits It Has AGAIN Been Deleting Evidence Needed In Long-Running Surveillance Lawsuit

from the someday-the-NSA-will-get-a-handle-on-this-whole-'managing-data'-thing dept

The NSA is once again deleting data it's been ordered to retain for ongoing lawsuits. This isn't the first time. The Jewel v. NSA lawsuit -- which is nearing its tenth year in litigation -- has been ground zero for multiple NSA screw-ups. The shutdown of the Section 215 program resulted in some perhaps deliberate confusion within the agency. At first, the NSA decided it should just purge its 215 collections, taking with it anything that might be used against it in the Jewel case. Then it decided it would keep everything, giving it the opportunity to trawl pre-reform data banks for anything it might find useful, while simultaneously stiff-arming plaintiffs' requests for surveillance records.

Despite angering multiple judges with its inability to follow simple court orders, the NSA is back in front of a judge trying to explain why it has failed yet again to retain data relevant to the Jewel case.

[T]he NSA told U.S. District Court Judge Jeffrey White in a filing on Thursday night and another little-noticed submission last year that the agency did not preserve the content of internet communications intercepted between 2001 and 2007 under the program Bush ordered. To make matters worse, backup tapes that might have mitigated the failure were erased in 2009, 2011 and 2016, the NSA said.

That's the problem with collecting all the stuff. Where do you put it? Sooner or later, you have to get rid some stuff to make room for the new stuff. But rest assured, the NSA feels just awful it may have deleted crucial evidence.

“The NSA sincerely regrets its failure to prevent the deletion of this data,” NSA’s deputy director of capabilities, identified publicly as “Elizabeth B.,” wrote in a declaration filed in October. “NSA senior management is fully aware of this failure, and the Agency is committed to taking swift action to respond to the loss of this data.”

In the update Thursday, another NSA official said the data were deleted during a broad, housecleaning effort aimed at making space for incoming information.

Evidence spoliation d/b/a performance enhancements. That's the NSA way. The NSA claims potential evidence wasn't "targeted" but possibly was deleted. In other words: incidental deletion. This follows the NSA's assertions possible evidence was secured and fully backed up. Supposedly magnetic tapes containing communications and metadata pertinent to the Jewel case had been physically set aside and segregated from the NSA's other backups and data collections. That now appears not to have been the case.

The NSA is “preserving magnetic/digital tapes of the Internet content intercepted under the [PSP] since the inception of the program,” [NSA official Miriam P.] wrote, adding that “the NSA has stored these tapes in the offices of its General Counsel.”

The agency now says, “regrettably,” that the statement “may have been only partially accurate when made.”

The NSA is now making "extraordinary" efforts to recover the stuff it said wouldn't be erased. As the EFF (representing the plaintiff) has pointed out (repeatedly), missing evidence should be presumed to be favorable to the person asking for it to be handed over. Anything the NSA can't come up with should bolster the plaintiff's case. The NSA can't plausibly argue the plaintiff was never targeted or swept up incidentally in its collections if it doesn't have a copy of this data that shows otherwise.

Any person offering up shrugs and apologies instead of requested evidence could expect to be sanctioned by the court. Somehow I doubt the NSA will be subject to the same rules that apply to everyone else.

Filed Under: deleting evidence, evidence, jewel v. nsa, nsa, section 215, spoliation

Georgia Election Server Mysteriously Wiped Clean After Lawsuit Highlights Major Vulnerabilities

from the yeah-whoops-a-daisy dept

For as long as Techdirt has existed, we've highlighted how most implementations of electronic voting simply aren't safe or secure. The Diebold disaster in 2006, Sequoia's security scandal in 2008, and a rotating flood of similar stories since, have driven this point home time, and time, and time again. And despite these warnings neither the companies that make these machines, nor the election commissions or local governments tasked with overseeing them, have done enough (or, in many cases, much of anything) to ensure that our Democratic process is secure.

The latest example of just how not under control this problem is comes out of Georgia, where reports indicate that somebody managed to completely wipe a server integral to a lawsuit against Georgia election officials. The lawsuit, filed by a coalition of election reform advocates, is attempting to force Georgia to retire antiquated and heavily-criticized election technology that has been under fire in the media since June, after security researchers indicated that the touch-screen machines could be easily tampered with without leaving much of a trace:

A misconfigured server, Logan Lamb discovered last August, had left Georgia’s 6.7 million voter records and other sensitive files exposed to hackers. And it may have been left unfixed for seven months. The vulnerability might have allowed attackers to plant malware and possibly rig votes or wreak chaos with voter rolls by deleting or altering records — a major concern amid heightened sensitivity to state-sponsored Russian election hacking.

Shortly after the lawsuit was filed, the servers of interest in the case were mysteriously wiped by technicians at the Center for Elections Systems at Kennesaw State University, which oversees the state’s election system. The Associated Press only discovered the wipe after obtaining an email from an assistant state attorney general to plaintiffs in the case. Efforts to determine who requested that the server be wiped clean have so far gone nowhere:

The Kennesaw election center answers to Georgia’s secretary of state, Brian Kemp, a Republican who is running for governor in 2018 and is the main defendant in the suit. A spokeswoman for the secretary of state’s office said Wednesday that “we did not have anything to do with this decision,” adding that the office also had no advance warning of the move. The center’s director, Michael Barnes, referred questions to the university’s press office, which declined comment.

Plaintiffs in the case have argued that data from last November’s election and a special June 20th congressional runoff cannot be trusted due to the unresolved flaws in the machines. And while the election server would have gone a long way toward answering that concern, it was wiped clean on July 7 -- just four days after the lawsuit was filed. Two backup servers were subsequently wiped clean on August 9, just as the case was moving to federal court.

Filed Under: e-voting, elections, evidence, georgia, servers, spoliation, voting integrity, wiped

Federal Judge Finds NYPD Engaged In Evidence Spoliation By Destroying Documents Related To Summons Quota Lawsuit

from the NYPD-shreds-accountability-so-often-it-needs-its-own-industrial-truck dept

Just recently, we discussed the revelation that former Police Commissioner Ray Kelly's emails were deleted right as he was exiting office -- despite being ordered by a federal court to preserve all communications relevant to a summons quota lawsuit.

The city claimed it was a clerical error, but the plaintiffs pointed out that, despite the retention order being issued in 2010, the city had yet to produce a single email from Kelly's account in response to its discovery requests.

The long-running case is still very slowly moving forward, greatly hampered by the NYPD's refusal to cooperate with requests for documents relevant to the disputed quotas. Federal judge Robert Sweet is handling the case, and it appears that he's just as frustrated, exhausted and irritated as the plaintiffs. In an order granting the plaintiffs' motion for adverse inference (in part) related to "spoliation of evidence," Sweet takes several shots at the NYPD's document-handling skills.

First off, Sweet notes the city did not even issue an order on litigation retention until more than three years after the lawsuit was filed.

The City did not issue any litigation hold until August 8, 2013, more than three years after the filing of the Complaint in this case. A preservation notice to NYPD members of service was distributed via a FINEST message on August 20, 2013, which was to be read to all commands. The evidence indicates that the litigation hold was not effectively communicated, and none of the officers who were named in the City's initial disclosures acknowledged receiving it.

The opinion also points out that the NYPD's policy of document retention tends to encourage periodic mass destruction of official records. Email is the hardest hit, with officers and officials having "hard size limits" on mailboxes, with the only way out from under the cap is the deletion of communications -- communications that would otherwise be preserved under other NYPD policies for 3-4 years.

From what Judge Sweet has observed, the NYPD's favorite piece of office equipment is its shredder truck.

Certain hard-copy materials relating to CompStat meetings gatherings of senior police personnel at which crime and performance-related data is analyzed and major policy priorities are set have been shredded, a fact acknowledged by Lieutenant Scott at his deposition. These packets contained data on enforcement activity. Lieutenant Scott also destroyed his own handwritten notes from the meetings.

[...]

Similarly, testimony by several officers indicates that there is a general practice of regularly destroying individual officers' activity reports. The Plaintiffs argue that these reports are relevant to their case because each officer's supervisor is required to provide written comments about his or her performance; if there is an unofficial summons quota policy within the NYPD, it might be reflected in those comments.

In addition, the NYPD has no policy regarding the preservation/destruction of text messages sent and received from department-issued smartphones. This has obviously led to a dearth of messages ever finding their way into court.

The evidence suggests the NYPD deletes email messages en masse and with alacrity. Common terms like "activity," "performance," and "record" were used to search for emails possibly relevant to the lawsuit. Despite the broad search terms, the city has turned over next to nothing in the way of these communications.

Defendants produced few or no documents from the accounts of several key custodians, which the Plaintiffs argue is indicative of spoliation. For example, no emails were produced from the files of former Commissioner Raymond Kelly, former Chief of Department Joseph Esposito, former Chief of Patrol Robert Gianelli, and former Chiefs of Transit James Tuller and Raymond Diaz. Fewer than five emails were produced from the files of former Manhattan Borough Commander Thomas Purtell and former First Deputy Commissioners George Grasso and Rafael Pineiro. Fewer than 20 emails were produced from the files of William Morris, former Commander of the Criminal Justice Bureau.

The city claims -- through sworn affidavits -- that these officials and the upper levels of the NYPD hierarchy just don't use email to discuss policies or officer performance. This is likely true. There's an obvious reason why email use is unofficially discouraged and it's being played out in a lawsuit that is now in its sixth year. If you don't use email for any sort of official business, you'll never have to turn over a possibly incriminating/embarrassing document.

But despite its best obfuscatory efforts, it has proven impossible to keep officials from discussing pertinent official business using city email accounts.

[T]hese assertions are contradicted by emails that the Plaintiffs have obtained through other means. For instance, the Plaintiffs attached a copy of a September 27, 2010 email from Commissioner Kelly's BlackBerry in which he approves the transfer of a police officer from a precinct in Queens to one in the Bronx, based in part on her having told two officers to stop writing summonses.

Similarly, the Plaintiffs point to three emails sent to Chief Esposito regarding CompStat meetings which, although not as directly relevant as the email from Commissioner Kelly, do touch on summons and performance issues and contain requested search terms.

The unofficial "don't use email" policy -- along with the hard cap on storage -- ensures higher-ranking city officials will either avoid discussing sensitive issues in communications subject to public records requests or will constantly need to delete emails to stay under the inbox limit -- with potentially-sensitive communications being excised first.

The emails discovered here did not come from searches of these subjects' emails. Instead, they were obtained from hard copy files maintained by other agencies or lower-level NYPD officials. As Judge Sweet points out, this indicates Commissioner Kelly and Chief Esposito deliberately deleted emails that should have been retained.

Judge Sweet says it's inexcusable that the city failed to issue a preservation order until three years after the court ordered it to retain relevant documents. Furthermore, Sweet points out that the city should have been retaining these documents since 2008, when a similar lawsuit was filed over the NYPD's alleged summons quota.

The city argued that -- due to the number of lawsuits it faces on an ongoing basis -- it would be impossible to retain everything sought. While Sweet agrees that the city's retention obligations are indeed immense, that does not excuse its failure to issue a retention order for three years, much less suspend policies that would result in the destruction of relevant documents.

Sweet also points out that the city likes to dance around the central issues rather than admit it does everything it can to eliminate paper/digital trails.

In its briefing, the City argues that it was under no obligation to preserve messages kept on officers' personal electronic devices, without discussing any preservation obligation regarding texts sent on Department-issued devices.

Furthermore, the city's policies on data retention -- especially the NYPD's -- are slanted towards destruction rather than preservation.

The Defendants point out that Operations Order 44, which provides for the destruction of hard-copy documents, is permissive and not mandatory. However, the fact that Order 44 was on the books made document destruction foreseeable. The NYPD cannot credibly argue that, despite setting guidelines for document destruction and providing an industrial shredding truck for that purpose, it did not know or intend that documents would be destroyed.

Similarly, Lieutenant Scott's testimony amounts to an admission that the Department knew that officers' email inboxes would hit their space limits and that those officers would delete potentially relevant ESI when they did. Although the paucity of relevant emails produced from the inboxes of key decisionmakers does not establish that ESI was deleted, it is consistent with such spoliation and with Lieutenant Scott's acknowledgement that deletion of emails was a foreseeable consequence of the storage policy.

Combined with the city's failure to issue a preservation order until three years of litigation had elapsed, the court finds in favor of the plaintiffs on most of the allegations and orders the city to produce a schedule for completing the outstanding discovery requests. If the city can't comply because it has allowed destruction of relevant documents to continue during the three-year gap, sanctions are likely. But for the city, these sanctions will likely be far more affordable than a finding that the NYPD engaged in an illegal quota system for several years.

Filed Under: evidence, nypd, spoliation

Former NYPD Boss Ray Kelly's Emails 'Inadvertently' Wiped Despite Court Order To Preserve Them

from the press-'delete'-to-retire dept

No surprises here, although the contempt for government authorities that aren't the NYPD is a bit audacious.

Most of former NYPD Commissioner Raymond Kelly’s emails on his desktop computer were deleted at the end of his tenure despite an order they be preserved for a high-stakes class-action suit alleging a summons quota system within the department.

The NYPD -- and its top officials -- have never been fans of transparency or accountability. The only shocking aspect is that the deletion was done in direct disobedience of a court order. The plan to secure Kelly's legacy by destroying his emails was likely in place long before his retirement. Back in 2013, it was made clear by Michael Bloomberg that there would be no effort made to archive the mayor's communications. Four government agencies were also on the "assured destruction" list, the NYPD being one of them.

By the time Kelly and Bloomberg left office, their emails were already slated for deletion. That makes the following statement both accurate and deceiving.

“The majority of former Commissioner Kelly’s locally stored emails were inadvertently deleted at the conclusion of his tenure,” city attorney Curt Beck wrote to Manhattan Federal Judge Robert Sweet.

"Inadvertently" is just another word for "automatically." Since no one was given the task of ensuring Kelly's emails wouldn't be deleted, the destruction went ahead as planned. But the wording suggests someone just hit the wrong key and nuked Kelly's emails.

And, as is far too often the case, those charged with preserving these communications were the last to know they were gone.

The city only recently learned of the mistakenly destroyed data, according to documents filed Wednesday.

It might be more believable if the city's story didn't keep changing. First, it claimed the order to preserve the emails wasn't "disseminated widely," leading to staffers "mistakenly" deleting communications when Kelly left office. A few hours later, the city "clarified" its original statement by claiming the deletion only affected emails "stored locally," which vanished when Kelly was given a new computer in 2013 -- and his old one wiped for reuse.

In the latter explanation, the city claimed the only emails affected were those "three years or older" or "otherwise selected for archiving." (This auto-delete would seem to completely undermine the "archive" function, not to mention the definition of the word itself.) The city also said it could search the inboxes of other NYPD/city officials for copies of Kelly's emails. Neither statement is very reassuring, considering the preservation order took effect in 2010 when the lawsuit was filed and the city has yet to produce a single email.

The city says this "accidental" deletion is "not a big deal." (Yes, that's a direct quote.) The double standard here is astounding. If the NYPD was pursuing a case against a criminal defendant, the deletion of communications would be used against the person charged and could result in additional penalties. The federal government -- thanks to law meant to prevent corporations from destroying evidence -- goes after people for far less overt actions. Sarbanes-Oxley makes the deletion of anything a possibly criminal act -- including periodic maintenance like deleting cookies/browser history. The law basically forbids any conceivable criminal defendant from deleting anything from their devices and computers, as evidence must not only be preserved for ongoing investigations, but also for "foreseeable" investigations

Public entities have a duty to preserve communications responsive to public records requests and must implement clearly-stated deletion policies that err on the side of retention. The wiping of emails the moment a controversial official leaves office should be suspect, even without the existence of a preservation order demanding the retention of these documents. The court may pursue sanctions against the city, but that won't help the plaintiffs much -- not if evidence of ticket/arrest quotas (the central issue of the lawsuit) was contained in the "inadvertently" destroyed emails.

Filed Under: deleted, email, evidence, nypd, ray kelly, spoliation

Man Who Deactivated Facebook Account To Dodge Discovery Request Smacked Around By Disgruntled Court

from the I-fought-the-law,-but-swung-and-missed-badly,-and-it-was-over-before-it-began dept

Social media. So popular. And so very, very incriminating. The less-than-illustrious history of many a criminal who felt obliged to generate inculpatory evidence via social media postings has been well-detailed here. But what if you want to hide your indiscretions and malfeasance? If you've posted something on any major social network, chances are it will be found and used against you.

On May 19, 2014, Brannon Crowe sued his employer, Marquette Transportation. Crowe claimed that, in April 2014, he had an accident at work that “resulted in serious painful injuries to his knee and other parts of his body.” Crowe sued for pain and suffering, medical expenses, lost wages, past and future disability, and other special damages.

But Crowe may have unwittingly shot himself in the foot (or maybe the knee). The reason? Facebook.
Around the time Crowe suffered his injuries, he sent a Facebook message to a friend saying that he had actually hurt himself while on a fishing trip. How Marquette Transportation got its hands on the message is unclear.

Nonetheless, the message led Marquette Transportation to seek other Facebook information from Crowe in discovery. On October 17, 2014, Marquette Transportation specifically requested “the Facebook history of any account(s) that [Crowe] had or has for the period commencing two (2) weeks prior to the incident in question to the present date.”

Crowe presented a variety of novel defenses in hopes of escaping Marquette Transporation's examination of his Facebook account -- one of which was that he had no Facebook account.

Plaintiff objects to this Request as vague, over broad and unduly burdensome. Plaintiff further objects to the extent this Request seeks information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding said objections and in the spirit of cooperation, plaintiff does not presently have a Facebook account.

Note the qualifier "presently."

Crowe later testified in his deposition that he stopped having a Facebook account “around October” of 2014.

Oddly coincidental.

Marquette served its written discovery upon Crowe’s counsel on October 17, 2014. (Rec. doc. 16-1 at p. 1). Crowe’s Facebook records from the “Brannon CroWe” account indicate that account was deactivated on October 21, 2014. Counsel for Marquette is entitled to explore the timing of this deactivation.

"Stopped having" actually meant "deactivated his account." Crowe didn't go so far as to delete the account, which might have made the damning post a bit more difficult to recover. But he wanted to keep his account alive for use at a later date. This didn't escape the court's notice.

The same Facebook records indicate that the account was accessed routinely by an iPhone with an IP address of 108.215.99.63 beginning well before the alleged accident up to and including on the date of deactivation. On January 7, 2015, the account was reactivated by the same iPhone with the same IP address. Counsel for Marquette is entitled to explore these matters, particularly given the current dispute over the status of Crowe’s iPhone service and whether he was able to and did send “text messages” to others at points in time when he claimed to be unable to do so.

Crowe's shovel-wielding skills far outpace his ability to hide incriminating information. But as is the case with shovel wielders, even the most efficient can do little more than dig holes of increasing depth. When this foolproof plan to thwart Marquette Transportation's discovery request failed, Crowe deployed Plans B, C and D, with similar results.

Similarly, counsel for Marquette is entitled to analyze the thousands of pages of Facebook messages Crowe exchanged with others, including his co-worker, Robert Falslev, particularly given his testimony that his account: (1) did not use a capital “W” in its name, (2) that it was hacked, and (3) that he did not send one particular Facebook message to Falslev stating he was injured fishing, rather than on the Marquette vessel.

Crowe's counsel, now presumably righteously pissed, produced the records sought by Marquette -- in bulk.

Pursuant to the Court’s Order quoted above, Crowe, through counsel, has now submitted to the Court for in camera review an astonishing 4,000-plus pages of Facebook history from the account “Brannon CroWe.” While the Court has made a preliminary review of certain of these materials, it is not about to waste its time reviewing 4,000 pages of documents in camera when it is patently clear from even a cursory review that this information should have been produced as part of Crowe’s original response. This production makes it plain that Crowe’s testimony, at least in part, was inaccurate. That alone makes this information discoverable.

The court may not be interested in looking through Crowe's obviously very active (before it suddenly, suspiciously wasn't) Facebook account, but I would imagine Marquette's lawyers will find the time to do so. But even in Crowe's self-inflicted dark cloud, there's a silver lining -- albeit one brought about by his desire to save his (supposedly hacked-with-a-capital-W) Facebook account, rather than see it (and the incriminating post) vanish into the ether.

Crowe may have inadvertently saved himself at least some trouble with the Court by deactivating his account rather than deleting it. This duty to preserve evidence in litigation extends to social media information and is triggered when a party reasonably foresees that evidence may be relevant to issues in litigation. As soon as he placed the source of his injuries at issue, Crowe triggered the duty to preserve. Deleting relevant social media data can result in sanctions against the deleting party because the information is not recoverable, which implicates spoliation of evidence issues. In contrast, Crowe’s Facebook data was still accessible upon a simple re-login.

The court won't offer Crowe much sympathy in the future, but it's not likely to pursue sanctions. That's about all there is in terms of good news. The effort made to hide the evidence doesn't make Crowe look any less guilty. Social media platforms are bad places to do bad things. Even swift deletions can be recovered with timely court orders and an internet's worth of cached pages and third-party content aggregators often assures that deleted postings will live on in one form or another.

Filed Under: brannon crowe, deleting, destroying evidence, discovery, social media, spoliation
Companies: facebook

EFF Tells Court That The NSA Knowingly And Illegally Destroyed Evidence In Key Case Over Bulk Surveillance

from the because-of-course-they-did dept

We followed the back and forth situation earlier this year, in which there were some legal questions over whether or not the NSA needed to hang onto surveillance data at issue in various lawsuits, or destroy it as per the laws concerning retention of data. Unfortunately, in the process, it became clear that the DOJ misled FISA court Judge Reggie Walton, withholding key information. In response, the DOJ apologized, insisting that it didn't think the data was relevant -- but also very strongly hinting that it used that opportunity to destroy a ton of evidence. However, this appeared to be just the latest in a long history of the NSA/DOJ willfully destroying evidence that was under a preservation order.

The key case where this evidence was destroyed was the EFF's long running Jewel v. NSA case, and the EFF has now told the court about the destruction of evidence, and asked the court to thus assume that the evidence proves, in fact, that EFF's clients were victims of unlawful surveillance. The DOJ/NSA have insisted that they thought that the EFF's lawsuit only covered programs issued under executive authority, rather than programs approved by the FISA Court, but the record in the case shows that the DOJ seems to be making this claim up.

EFF filed its first lawsuit challenging illegal government spying in 2006. The current dispute arises from Jewel v. NSA, EFF's 2008 case that challenges the government's mass seizure of three kinds of information: Internet and telephone content, telephone records, and Internet records, all going back to 2001. EFF's brief notes that the government's own declarations make clear that the government has destroyed five years of the content it collected between 2007 and 2012, three years worth of the telephone records it seized between 2006 and 2009, and seven years of the Internet records it seized between 2004 and 2011, when it claims to have ended the Internet records seizures.

"The court has issued a number of preservation orders over the years, but the government decided – without consent from the judge or even informing EFF – that those orders simply don't apply," said EFF Legal Director Cindy Cohn. "Regular civil litigants would face severe sanctions if they so obviously destroyed relevant evidence. But we are asking for a modest remedy: a ruling that we can assume the destroyed records would show that our plaintiffs were in fact surveilled by the government."

The full filing is worth reading as it highlights how ridiculous the DOJ's "oh we didn't think that stuff mattered to this case" argument really is. As EFF notes, all the way back in 2010, it had filed a brief that explicitly noted that they were challenging the use of exactly this kind of data.

The filing lists out the history of the government repeatedly destroying relevant information, despite the preservation orders from the court, and despite clear language noting that the government had to preserve exactly this kind of data. The DOJ's argument that it thought the data under FISA-approved programs didn't count seems especially weak, given that the DOJ itself was part of trying to hide that those programs even existed. As the EFF filing notes, the argument seems preposterous in context. For example, at one point, the DOJ claims that it thought EFF didn't mean FISC-approved programs because it talked about "warrantless" surveillance. However, as EFF notes, even FISC-approved programs are still warrantless, because a FISC order is not a warrant.

Even more damning for the DOJ, the EFF filing points out that in the DOJ's own attempts to kill this case under state secrets claims, it said that the activity had been approved by FISC. So, for all the talk about how it had no idea that EFF was interested in FISC-approved surveillance, that's clearly untrue or it wouldn't have invoked FISC as having approved the collection! After listing out numerous examples of government officials making official statements in the case talking about FISC approval and how revealing this would reveal FISC-related state secrets, EFF points out:

The Government cannot have it both ways, as it seeks to do here. It cannot present one understanding of the scope of plaintiffs' claims -- a very broad one -- when asserting state secret privilege, but claim a much narrower understanding when it is destroying evidence.

As EFF points out, when evidence like this is destroyed:

the law presumes that the destroyed evidence goes to the merits of the case, and the burden is on the spoliating party to show that no prejudice resulted." .... After having repeatedly and vociferously claimed that the plaintiffs must produce evidence from the government of individual seizure of their communications and records (as opposed to the boxes of their evidence plaintiffs have long presented), the government cannot meet its burden to show no prejudice has occurred here. Unsurprisingly, it has made no attempt to do so.

And now we wait to see how the DOJ tries to tap dance out of this one.

Filed Under: destruction, evidence, jewel v. nsa, nsa, spoliation, surveillance
Companies: eff