EFF Tells Court That the NSA Knowingly and Illegally Destroyed Evidence

An anonymous reader writes in with this latest bit of EFF vs NSA news. '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.'

Comments

Dear Slashdot

[Anonymous Coward]

1) Is posting AC really Anonymous?
2) Has Slashdot ever received a FISA letter?

Re:Dear Slashdot

[EmagGeek]

Of course they have. Nothing you do on the Internet is anonymous.

Destroying evidence should have worse penalty

[Firethorn]

In general I think that destroying evidence should result in the assumption that they're hiding a worst case scenario. So I agree with the EFF. Destroying evidence = automatically guilty of accusations. Have a nice day.

Re:Destroying evidence should have worse penalty

[mysidia]

In addition to the court stipulating that whatever the EFF had claimed the evidence said: everyone down the chain of management that was responsible for knowingly ordering destruction of evidence involved with their case, should be criminally prosecuted personally, (or impeached, if a cabinet official or elected official).

Re:Destroying evidence should have worse penalty

[Rich0]

In general I think that destroying evidence should result in the assumption that they're hiding a worst case scenario. So I agree with the EFF. Destroying evidence = automatically guilty of accusations. Have a nice day.

The problem with this is that what is that even going to accomplish? Ok, the court rules that they illegally spied on US citizens. They tell the NSA that they have to stop doing that. The NSA says, "fine - we were never doing it in the first place, and we'll continue to not do it." Then they keep doing what they've been doing all along, which they define as not being illegal spying by whatever contortions they apply.

It isn't like the court is going to make somebody go to jail if the law is broken. If YOU spy on somebody illegally you'll get locked up for it. If the government does it, well, I guess the rules just must not have been clear enough.

Re:Destroying evidence should have worse penalty

[Mr. Shotgun]

In general I think that destroying evidence should result in the assumption that they're hiding a worst case scenario

That is exactly what is supposed to happen, it is called spoilation of evidence and is very frowned upon. The penalties are supposed to include inferring that the missing evidence is beneficial to the opposing party and civil and criminal penalties against whomever destroyed the evidence. Though I doubt that will happen in this case.

Re:Destroying evidence should have worse penalty

[s.petry]

The problem with this is that what is that even going to accomplish?

Let me ask you a question: Do you really and truly believe that taking no action will make things better, worse, or will the corruption remain the same? In the best case scenario, things remain the same (being illegal and unconstitutional). Historically however, inaction more often results in things becoming worse. Inaction never results in things improving, at least for the recipients of the abuse.

Many constitutional rights violations are felonies. Convicted felons can not hold a security clearance and can not work for an agency such as the NSA in any capacity. Other agencies, such as the CIA and FBI, do have jobs that do not require a clearance, but depending on the job classification can (and often do) restrict convicted felons from filling those positions.

Any cabinet member can be impeached by Congress, and the reasons for impeachment include misdemeanor offenses. In other words, Congress can remove the head of the NSA, CIA, FBI, DOJ, etc... by vote. The primary motivation for impeachment is very sensitive to issues of Constitutional violations (see this for a reference).

The false analogy you provide, of "no punishemtn" or "go to jail" is simply not true. Being banned from working a career you have spent your life doing is a punishment, as is being barred from holding jobs or offices in the future, loss of retirement, etc...

We would probably agree that the punishment may not be severe enough. If you believe that doing nothing is a better answer, you are not thinking very clearly. Exactly why do you think we have numerous historical quotes from people telling you to take action? Like Martin Niemöller

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the
Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me

or Edmund Burke

The only thing necessary for the triumph of evil is for good men to do nothing.

All tyranny needs to gain a foothold is for people of good conscience to remain silent.

And nothing will be done.

[tekrat]

The NSA could admit that they break the law every day of the week, murder Americans on american soil, steal millions of dollars, destroy companies and even the entire economy, and do you know what will happen?

Absolutely nothing.

They believe they are above the law. And heck, most of the legislative branch believes they are above the law. The judicial and executive branches are more than willing to look the other way, so as a result, the NSA gets a free pass to do whatever they want.

Because.... national security... and boogyman terrorists... and something, something mumble mumble. Whatever the fear flavor of the week is. 1984 was an instruction manual.

Re:And nothing will be done.

[fuzzyfuzzyfungus]

One minor complication, of course: accruing points for authenticity may be virtuous; but it isn't very useful.

In fact, given that 'security' is the ubiquitous justification of these sorts of programs, most attempts to 'refresh the tree of liberty' will just show up as talking points next time the NSA wants a budget increase, or feels like arguing that the rules against domestic surveillance are compromising its effectiveness.

Yes, it sounds all Serious and tough-minded to tell the chatterers that if they aren't fighting at the barricades, they are just whiners; but it ignores the fact that resistance can be worse than useless. In the case of 'national security' apparatus, violence that fails to leave them burned to ashes, and their toadies decorating the lamp posts of the capital, simply makes them look more legitimate and necessary. Since that level of force is unlikely to be a DIY project, you will, at very least, need to reach the level of whining where it becomes a group effort, or where alternate means become available.

Frightening

[pitchpipe]

To all of you government surveillance apologists: doesn't it really frighten you that these guys routinely don't follow the law and get away with it? It scares the shit out of me. These people have the power to destroy you and everything/everyone that you love, and they seem to have nothing guiding them but their gut feel. How do you know they won't mistake your kid for a terrorist? Or bust down your door in the middle of the night tossing a flash-bang into your kids crib?

These fucking people are out of control and need some serious jail time.

Re:Frightening

[pitchpipe]

The law says it's perfectly legal for NSA to destroy evidence that would compromise national security if revealed in a civil court.

So the NSA gets to decide which evidence could impact national security of course, and pretty much all of it impacts national security so there is effectively no oversight. So pretty much the NSA operates as an unchecked branch of the government.

You apologist are many things: cowards, shills, etc. Patriots you are not. You are undermining our democracy (however much we have left).

Re:So... to summarise:

[meerling]

The preservation order overrides any policies and destruction rules.
They knew that to destroy those records was both illegal and obstruction.
As to fishing expedition, apparently the judge didn't think so.

Re:Sorry, destruction is not proof of claim

[NormalVisual]

I know this is a troll, but people would do well to remember that being unable to hold the government accountable for their actions is a much greater threat to national security than any outside entity could muster against the people.

Re:Sorry, destruction is not proof of claim

[Drishmung]

Keeping the US safe is a clear and compelling interest that takes priority over a measly civil claim.

Ah, yes, "The ends justify the means". The trouble with that is that the means determine the end. If your means are corrupt, lawless and arbitrary, just what sort of outcome do you expect?

I believe this has been discussed previously: Matthew 7:16, 1 Samuel 24:13, Matthew 12:33, Luke 6:43, James 3:12

Re: So... to summarise:

[Anonymous Coward]

I wish more people weren't willing to put up with their government breaking the law. We should be up in arms about shit like this because it decays the very foundations of this country.

Re: the dog ate my homework

[Anonymous Coward]

Nah, he just read about the dog eating his homework in the news the next day.

Re:the dog ate my homework

[Anonymous Coward]

Nah, he just read about the dog eating his homework the next day. Found out with the rest of us

Re:So... to summarise:

[dnavid]

The destruction of that data is required by law. EFF tried to go on a fishing expedition.

Both the FISA court and Federal court eventually decided that the NSA was both allowed to, and required to, preserve information relevant to the ongoing cases, and the NSA both knew this and also eventually advocated for this position. See: https://www.techdirt.com/artic....

Court-ordered legal discovery also has force of law and would supercede any legal requirement to destroy information by plaintiffs or defendents.

And the DOJ did not assert the EFF was on a "fishing expedition"; it argued that it misunderstood the scope of discovery, and would not have destroyed the information in question if it did (which seems highly improbable given the circumstances).

Re: So... to summarise:

[lister king of smeg]

Why the fuck aren't you, if you think it's such a good idea? You want the meat, you butcher it your own goddamn self. Whining that something should be done, but isn't, and insinuating that you're not doing it yourself == makes you a useless tool. Grow a fucking pair and stand behind your beliefs or shove it.

Because if one or two people that are fed up act on it and they get brushed off, 20 people act up get sent to jail, 200 get still get sent to jail but get a dismissive blurb in the local paper, 2,000 they get pepper sprayed and leader charged with inciting riot, 20,000,000 get a senator or two to half heartedly admit there might be an issue that might need looking into and never do anything substantive, It takes a critical mass to effect change

Donate to the EFF! NOW!!!

[cpm99352]

I used to financially support the NRA, under the assumption that they defended the 2nd amendment. A while age I realized that was not actually correct,

The EFF is the best example of an entity that defends *all* amendments. I now financially support them, every month. When NPR comes begging for money I'm happily able to refuse, secure in the knowledge that EFF is far more effective in their use of funds than NPR when it comes to presevring the Constitution.

There are a ton of relatively affluent people here on Slashdot. It certainly wouldn't hurt you to allocate a small amount of money to EFF annually, and we know their results.

U.S. Marshals Seize Cops’ Spying Records...

[eddy]

Here's a new sneaky approach, less destructive but so far effective: U.S. Marshals Seize Cops’ Spying Records to Keep Them From the ACLU

Re: So... to summarise:

[Smallpond]

It actually turns out to be very easy to do something about it:
https://supporters.eff.org/don...

Re: So... to summarise:

[evilviper]

Supporting EFF is a good start, I agree, but it's no magic solution. Remember, EFF's lawsuit about the NSA dragnet was completely stopeed in its tracks by the "state secrets" defense for YEARS, until Snowden's leak put the relevant info into the public domain, when it was finally allowed to proceed.