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In March, a judge instructed the government to retain the data under a temporary restraining order. Last week, after it was discovered that the government had not complied, Judge Jeffrey S. White of the US District for the Northern District of California issued an emergency restraining order, once again requiring the NSA to keep the data. "Defendants are ordered not to destroy any documents that may be relevant to the claims at issue in this action, including the Section 702 materials," he wrote.
The agency's lawyers responded in an emergency motion, saying that not destroying the evidence would mean "complex technical and operational issues." Retaining older data, it said, would violate rules and complicate computer systems that otherwise mandate the deletion of that data, under rules meant to protect individuals' privacy.
Keeping the data, wrote Dept. of Justice lawyers, would "cause severe operational consequences for the National Security Agency's (NSA) national security mission, including the possible suspension of the Section 702 program and potential loss of access to lawfully collected signals intelligence information on foreign intelligence targets that is vital to NSA’s foreign intelligence mission."
In a hearing on Friday, Judge White reversed his emergency restraining order, pending more information. “In order to protect national security programs, I cannot issue a ruling at this time. The Court rescinds the June 5 order,” Judge White said.
The emergency court order was requested by EFF lawyers after they happened to discover, in the course of emailing with their government counterparts, that crucial evidence was still not being retained.
"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," Cohn said in a statement. "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."
Initially, the government contended it didn't think this particular data was relevant, because it thought the lawsuit pertained only to data gathered under the authority of President Bush, and not under Section 702 of the Amendments Act of the Foreign Intelligence Surveillance Act. Once the authority for the program was transferred in 2007, the government suggests, questions of constitutionality had been resolved.
The EFF refutes the government's reasoning, pointing out that surveillance under the authority of the FISA court is still warrantless, and that NSA officials had themselves explicitly connected FISA programs to the lawsuits, as had previous statements made by the government's lawyers.
The government appeared to want it both ways, according to Andrew Crocker, a legal fellow at the EFF. "They said [the Internet data collected under the Foreign Intelligence Surveillance Court] is not relevant to our case, but they've also made statements, in asserting state secrets, that we touch on issues under the guidance of the FISC."
The NSA, meanwhile, argues that its data-collection programs are constitutional, and that its data purging is based on rules that are specifically meant to keep the program operating within legal guidelines.
"An order requiring the preservation of all Section 702 material would, ironically, abrogate the very protections put in place by the FISC to ensure that the NSA’s upstream collection complies with the Fourth Amendment, all so that Plaintiffs can attempt to show that it did not."
The FISA rules outline how the agency can inadvertently collect and store data of Americans. Unevaluated data collected through "upstream" methods like tapping into Internet and phone lines, “may be retained no longer than two years from the expiration date of the certification authorizing the collection,” whereas information that is “known to contain communications of or concerning United States persons will be destroyed upon recognition” if it does not meet one of the requirements for retention, like a suspected connection to terrorism.
To comply with the court order, the NSA "may need to take all databases containing Section 702 data offline while NSA operators and technical staff determine whether and how all of the data that would otherwise be destroyed in order to comply with the FISA and the Constitution could be retained indefinitely instead in compliance with this Court’s June 5 Order."
The claim also puts the NSA in an awkward place, as it seems to argue that it cannot carefully manage the massive streams of data that its systems ingest everyday. Even for the government's most sophisticated computer analysts, stopping the deletion of data and storing it instead, he wrote, "would require significant technical changes to these databases and systems."
In other words, it isn't possible to examine evidence that shows whether a program is running legally and within the boundaries of the Constitution because that would mean stopping the program.
Either way, the NSA argues that the case should be thrown out, describing the claim that "Plaintiffs’ communications" have been swept up in "incidental overcollection" as "pure speculation."
"To the extent that Plaintiffs will argue that the Section 702 program is a program of untargeted mass surveillance based on the fact that, due to technological limitations,NSA’s upstream collection results in the acquisition of Internet transactions containing multiple communications, it is purely speculative that Plaintiffs’ communications are included in this incidental overcollection."
originally posted by: CloudsTasteMetallic
Now then, let's please try to remain civil and refrain from knee-jerk reactions to such complex matters.
originally posted by: InhaleExhale
Bush senior was quoted saying if the public know what we have done they would lynch us and hang us in the streets or something to that effect.
The idea is logical to keep the system alive.
Evidence that could cause mass unrest due to the operating nature of the agency needs to be destroyed, the violent anarchy that would follow would be against everyone's best intentions.
In a way they are thinking about the public but more so in covering their arse whatever the outcome is.
It could also be a move to cause more distrust and push some anarchy groups to take further steps to keep this game going or to keep the film rolling.
information that is “known to contain communications of or concerning United States persons will be destroyed upon recognition” if it does not meet one of the requirements for retention, like a suspected connection to terrorism.