Judge Orders NSA To Stop Destroying Evidence — For The Third Time
Judge Orders NSA To Stop Destroying Evidence — For The
Third Time
2:50 PM 06/06/2014
A federal judge has ordered the government to stop
destroying National Security Agency surveillance records that could be used to
challenge the legality of its spying programs in court.
U.S. District Court Judge Jeffrey White’s ruling came at
the request of the Electronic Frontier Foundation, which is in the midst of a
case challenging NSA’s ability to surveil foreign citizen’s U.S.-based email
and social media accounts.
According to the EFF, the signals intelligence agency and
the Department of Justice were knowingly destroying key evidence in the case by
purposefully misinterpreting earlier preservation orders by multiple courts,
multiple times.
In February, the DOJ asked the Foreign Intelligence
Surveillance Court to keep metadata beyond the five-year retention limit to
address pending lawsuits from organizations like EFF and the American Civil
Liberties Union, which alleged NSA illegally surveilled their clients.
According to multiple accounts, the DOJ made a
purposefully flawed case for keeping such records, fully expecting FISA Court
Judge Reggie Walton to forbid such retention. He did, which allowed the DOJ to
tell plaintiffs that the evidence of their surveillance had to be destroyed.
A California district court trying EFF’s case then asked
the DOJ in March to inform the FISA Court about its case, and preserve
surveillance data collected under both White House and FISA authority as
evidence. That order was ignored, forcing the EFF to file a temporary
restraining order to halt the data’s destruction, and appeal the case to the
FISA Court.
Justice Department attorneys subsequently told FISA Court
Judge Reggie Walton that they did not receive a request to keep metadata
collected under FISA authority as well as executive authority (despite
documents proving otherwise). After reviewing the case and correspondence
between EFF, the California court and DOJ, Walton ruled against the department,
accused it of attempting to deliberately mislead the court, and ordered a stay
on the records’ destruction.
Earlier this week Justice Department lawyers informed
organizations pursuing cases against NSA that metadata gathered under FISA
authority was still being destroyed, despite the March order. The Electronic
Frontier Foundation immediately filed an emergency temporary restraining order
with Judge White, who moments later issued an order telling the government,
again, to stop.
“Defendants are ordered not to destroy any documents that
may be relevant to the claims at issue in this action, including the [FISA]
Section 702 materials,” White wrote.
The DOJ was furthered ordered to file an immediate response
justifying its actions. It responded with a statement claiming it did not
interpret the prior restraining order to include Internet content
interceptions, and that the department was under the impression the court was
still trying to determine if the order applied to such evidence.
The DOJ further requested that the judge issue a
temporary stay on his order, and that failing to do so would ”cause severe
operational consequences.”
“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,’”
the EFF said in a statement late Thursday. “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.”
The EFF alleged the government’s claim that it “never
understood before this afternoon” the court’s intention to preserve all data
was difficult to believe.
“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 statement reads. “The government’s
disregard for the past three months of its obligations under the court’s
[temporary restraining order] should not be retroactively blessed by granting a
stay that permits the government to continue destroying evidence.”
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