The US Argues It Must Destroy Key NSA Evidence to Protect National Security

The US Argues It Must Destroy Key NSA Evidence to Protect National Security

Key excerpts from a brilliant piece of investigative journalism published today. I'd highly recommend reading article in full. Link also includes two sets of recent court documents, roughly 50 pages.

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."

Now then, let's please try to remain civil and refrain from knee-jerk reactions to such complex matters.

So basically what they're saying…if I am hearing them correctly…is that you can't investigate our programs to determine if they're operating legally because it's too much of an inconvenience. See when you break it down like that it sure seems like a good excuse to use by someone/ones who need to cover their asses. It's almost comical how it goes when someone tries to challenge the intelligence communities' SOPs legality.

ETA: forgot to mention that not only can they not investigate all the evidence but by the way we are gonna destroy that evidence because our computers are programmed to do that. Couldn't a closed system be utilized to hold said evidence until such a time that properly cleared investigators can well…do their jobs.

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.

originally posted by: CloudsTasteMetallic

Now then, let's please try to remain civil and refrain from knee-jerk reactions to such complex matters.

Seriously? You sound like the NSA when you say that.

What I gather is that the National Security Agency has to delete what it does for the sake of national security. If it doesn't, then the nation won't be secure from outside entities or even itself. In other words, the National Security Agency is detrimental to national security.

Keep up the good work fellas, you're making mama proud.

I just noticed how the term individual was used in the protection sentence.
'We' are called citizens--->
'They' call themselves individuals--->

Not interested in protecting citizens?

a reply to: CloudsTasteMetallic

Knowing the N.S.A. was involved in the operation "clean sweep" in 1997-98 using frequencies that effect emotions and using tv broadcasts that were modified with psychoactive video to "control crowds" I am beginning to think we are dealing with multi-use cell towers that operate at brain frequencies to modify brain waves and activity of the general public. And the 64,000 dollar question : is there intrinsic secret data in these phone records that could prove they are involved in unlawful use of military style weapons testing on U.S. residents? This would explain why they can not reveal the data ,will not reveal evidence of there treason.

a reply to: CloudsTasteMetallic

Now then, let's please try to remain civil and refrain from knee-jerk reactions to such complex matters. - See more at: www.abovetopsecret.com...

I assure you this is a well thought out position and it is a feasible solution.

Destroy all the evidence and provide amnesty in return for destroying the entirety of the NSA.

There can be no state secrets, it is impossible by proxy for the State to posses information it wants classified at National Security level without the peoples knowledge of its existance and guaranteed acess to it for an unlimited timeframe.There is no expiry data on data.

The JFK Coup de tat was actioned on behalf of so-called National Security, Americans are routinnely murdered in the name of National Security, with the interfernce of the Industrial Military Complex in the American Government and Military functions America is in a perpetual State of National Insecurity.

Nothing can legitimately be done by America in the name of National Security at this point in time.

Solve the JFK Coup de tat and you will be on the right track. Do not solve the JFK Coup de tat and NO ONE WILL TRUST AMERICA AGAIN.

Without the worlds trust Americas role is dyslexic and she is adrift, and that was the intended effect of the Coup de tat long term,todays Americans can STOP this impact any time they choose but some will need to step up to the plate.


It is not to late to right the ship,but the hour is indeed getting late.

It is meaningfull to get as many of the original conspirators as possible.Everyone knows the entire group agreed to keep things suppressed intentionally until ALL THE KEY PLAYERS WERE DEAD OF NATURAL CAUSES ,breaking laws and undermining GENERATIONS OF YOUNG AMERICANS.

If America allows them to accomplish this final task of allowing everyone to live out their natural lives with no JUSTICE being served then they will have accomplished what they all set out to do,the ONLY WAY America can excise the cancer she has is to FIND THEM FIRST and NOT allow them to complete their mission in full.

America moves by Passion, so until enough Americans get passionate nothing will change,there have been enough sad Americans since the JFK Coup de tat,it is time to see a Passionate America ,she needs to get moving ASAP.

I just cannot believe that there is no rootin tootin red-necked American with enough passion and cojones and survivability instincts to step up and straighten out the olde coots who shat in Americas picnic basket and now just want sit there and let everyone else take the blame.

It only takes ONE person who believes in America more than themself to make change.

No excuses,it only takes ONE.

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.

I don't need the government to think for me, or try and put my "best intentions" in front of being held accountable for their actions. Bunch of politicos covering their own ass because THEY FEAR what may happen to THEM, it's not about what may happen to US.

# the system

Who else destroyed evidence in the name of national security?

Soviet Union
East Germany
Nazi Germany
Italian Fascists

At least the Khmer Rouge kept their records.

So the US is just as bad the Soviets and Italian Fascists in this regard but not as bad as Pol Pot? Well, that's something I guess.

Any by national security, they mean the security of the machine, big brother, the Mic, the oligarchy's security. The have the most to loose when all is exposed.


The American people can handle the truth.

It does sound like the NSA is living up to its acronym 'Never a straight answer'

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.

So there are no technical difficulties in retention of data, only procedural ones. If the data in question was about an actual terror plot the NSA will store it for as long as they want. Since this data in question provides a conflict of interest to the agency and a requirement for operators to make a judgment, it is concerning to see that a court restraining order is not of a significant priority to meet the requirement of retention.

originally posted by: jrod
Any by national security, they mean the security of the machine, big brother, the Mic, the oligarchy's security. The have the most to loose when all is exposed.


The American people can handle the truth.

Couldn't help myself.