NSA deleted data on Bush-era snooping it had been under court orders to preserve
NSA deleted surveillance data it pledged to preserve
Since 2007, the NSA has been under court orders to
preserve data about some of its surveillance efforts.
The agency tells a federal judge that it is investigating
and 'sincerely regrets its failure.'
By JOSH GERSTEIN 01/19/2018 07:39 PM EST
The National Security Agency destroyed surveillance data
it pledged to preserve in connection with pending lawsuits and apparently never
took some of the steps it told a federal court it had taken to make sure the
information wasn’t destroyed, according to recent court filings.
Word of the NSA’s foul-up is emerging just as Congress
has extended for six years the legal authority the agency uses for much of its
surveillance work conducted through U.S. internet providers and tech firms.
President Donald Trump signed that measure into law Friday.
Since 2007, the NSA has been under court orders to
preserve data about certain of its surveillance efforts that came under legal
attack following disclosures that President George W. Bush ordered warrantless
wiretapping of international communications after the 2001 terrorist attacks on
the U.S. In addition, the agency has made a series of representations in court
over the years about how it is complying with its duties.
However, the 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.
“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 was deleted during a broad, housecleaning effort aimed at making space for
incoming information.
“The NSA’s review to date reveals that this [Presidential
Surveillance Program] Internet content data was not specifically targeted for
deletion,” wrote the official, identified as “Dr. Mark O,” “but rather the PSP
Internet content data matched criteria that were broadly used to delete data of
a certain type … in response to mission requirements to free-up space and
improve performance of the [redacted] back-up system. The NSA is still
investigating how these deletions came about given the preservation obligations
extant at the time. The NSA, however, has no reason to believe at this time
that PSP Internet content data was specifically targeted for deletion.”
An NSA spokesman declined to comment on Friday.
Defiance of a court order can result in civil or criminal
contempt charges, as well as sanctions against the party responsible. So far,
no one involved appears to have asked White to impose any punishment or
sanction on the NSA over the newly disclosed episodes, although the details of
what happened are still emerging.
“It’s really disappointing,” said David Greene, an
attorney with the Electronic Frontier Foundation, which has been leading the
prolonged litigation over the program in federal court in San Francisco. “The
obligation’s been in place for a really long time now. … We had a major dust-up
about it just a few years ago. This is definitely something that should’ve been
found sooner.”
The last legal showdown over the issue may have actually
compounded the NSA’s problems. In May 2014, an NSA official known as “Miriam
P.” assured the court that the data were safe.
The NSA is “preserving magnetic/digital tapes of the
Internet content intercepted under the [PSP] since the inception of the
program,” she 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 latest NSA filing says the ongoing investigation indicates
that officials did a “physical inspection” in 2014 to confirm the tapes’
presence in the counsel’s office storage space. However, “those tapes largely
concerned metadata,” not the content of communications the NSA intercepted.
The NSA says the impact of the misstatement and the
deletion on the litigation should be “limited” because it has found back-ups of
some content from about four months in 2003 and because it has a larger set of
metadata from 2004 to 2007. That metadata should give a strong indication of
whether the plaintiffs in the suits had their communications captured by the
NSA, even if the communications themselves may be lost, the filings indicate.
The NSA is also using “extraordinary” efforts to recover the data from tapes
that were reused, it said.
Asked why the Electronic Frontier Foundation hasn’t
publicized the episode, Greene said his group was waiting for the NSA to turn
over data that the plaintiffs in the suits have demanded before considering
next steps regarding the spy agency’s failure to maintain the records it said
it was keeping.
“We don't know exactly how bad it is,” the lawyer said,
adding: “Even if you take them at their word that this was just an honest
mistake, what it shows is despite your best intention to comply with important
restrictions, it can be really difficult to implement. … It shows that with the
really tremendous volume of information they’re vacuuming up, it is impossible
to be meticulous.”
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