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DOJ’s Idea of an Appropriate Passive-Aggressive Response to Accusations They Destroyed Evidence: Destroy More Evidence

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On Friday May 30, as I reported, EFF filed a motion accusing the government of destroying evidence it was obligated to keep in EFF’s NSA lawsuits.

Later that day, EFF Legal Director Cindy Cohn emailed her contact at DOJ, Marcia (Marcy) Berman, saying,

Jewel plaintiffs are okay with [a deadline extension] if the government can assure us that no additional information will be destroyed in the meantime.

As you can see, we went ahead and filed [the motion on spoliation].

The following Monday, after Cohn asked Berman, “Does that mean no additional information will be destroyed in the meantime?” Berman answered,

What it means is that we have already explained in our opening brief that we are in compliance with our preservation obligations and do not feel that we should have to make any further assurances or undertakings to accommodate plaintiffs’ need for additional time.

Later that day, Cohn reminded Berman that the Temporary Restraining Order covering destruction of information “including but not limited to … telephone metadata” remained in place. Cohn continued,

You appear to be saying that routine destruction of post-FISC material is continuing to occur regardless of the TRO; please confirm whether this is correct.

Berman responded, obliquely, yes.

The Court is presently considering whether the Government must preserve material obtained under Section 702 of FISA in the context of the Jewel/Shubert litigation. In the meantime, pending resolution of the preservation issues in this case, we have been examining with our clients how to address the preservation of data acquired under the Section 702 program in light of FISC imposed data retention limits (even though we disagree that the program is at issue in Jewel and Shubert).

Hoffman wrote a bunch more about “technical” “classified” blah blah blah, which I’ll return to, because I think it’s probably significant.

But for now, EFF filed for an emergency order to enforce the TRO issued back in March. Judge Jeffrey White has demanded a response from the government by noon tomorrow (they had wanted a week).

I can’t think of a more relevant NSA practice to a suit that relies significantly on Mark Klein’s whistle-blowing about the room where AT&T diverted and copied large amounts of telecom traffic than upstream 702 collection, in which AT&T and other telecom providers divert and copy large amounts of telecom traffic. While I’m not certain this evidence pertains to upstream — and not PRISM — EFF suggests that is included.

In communications with the government this week, plaintiffs learned to their surprise that the government is continuing to destroy evidence relating to the mass interception of Internet communications it is conducting under section 702 of the Foreign Intelligence Surveillance Act. This would include evidence relating to its use of “splitters” to conduct bulk interceptions of the content of Internet communications from the Internet “backbone” network of AT&T, as described in multiple FISC opinions and in the evidence of Mark Klein and J. Scott Marcus, ECF Nos. 84, 85, 89, 174 at Ex. 1

If it is, then it seems all the more damning, given that upstream collection is the practice that most obviously violates the ban on wiretapping Americans in the US.

EFF filed a motion accusing the government of illegally destroying evidence. And the government’s response was to destroy more evidence.

Update: The government has asked for an emergency stay of the Court’s June 5 order (which is actually a March 10 order, but the government doesn’t admit that) because NSA says so.

Undersigned counsel have been advised by the National Security Agency that compliance with the June 5, 2014 Order would cause severe operational consequences for the National Security Agency (NSA’s) 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

There’s something funky here — perhaps that some of this actually belongs to GCHQ? I dunno — which is leading the government to be so obstinate. Let’s hope we learn what it is.

Update: And EFF objected to DOJ’s request for a stay, pointing out what I did: that what they’re really asking for is blessing for ignoring the March 10 order.

EFF to Reggie Walton: Stuart Delery and John Carlin Are Still Materially Misleading FISA Court

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In my latest post in DOJ’s apparent effort to destroy evidence pertinent to EFF’s several lawsuits in Northern District of CA, I noted that even after being ordered to explain their earlier material misstatements to the FISA Court, Assistant Attorneys General John Carlin and Stuart Delery left a lot of key details unsaid. Significantly, they did not describe the full extent of the evidence supporting EFF’s claims in the dispute (and therefore showing DOJ’s actions to be unreasonable).

Notwithstanding a past comment about preservation orders in the matters before Judge Walton, the government claims EFF’s suits are unrelated to the phone dragnet.

[T]he Government has always understood [EFF’s suits] to be limited to certain presidentially authorized intelligence collection activities outside FISA, the Government did not identify those lawsuits, nor the preservation order issued therein, in its Motion for the Second Amendment to Primary Order filed in the above-captioned Docket number on February 25, 2014. For the same reasons, the Government did not notify this Court of its receipt of plaintiffs’ counsel’s February 26, 2014, e-mail.

Note, to sustain this claim, the government withheld both the state secrets declarations that clearly invoke the FISC-authorized dragnets as part of the litigation, even though the government’s protection order invokes it repeatedly, as well as Vaughn Walker’s preservation order which is broader than DOJ’s own preservation plan. Thus, they don’t give Walton the things he needs to be able to assess whether DOJ’s actions in this matter were remotely reasonable.

Apparently, EFF agrees. EFF Legal Director Cindy Cohn wrote AAGs Stuart Delery and John Carlin to complain that they hadn’t referenced the evidence submitted by EFF to support its claims.

[W]e were dismayed to see that the government’s response to the FISC on pages 3-5 repeated its own arguments (plus new ones) about the scope of the Jewel complaint without referencing, much less presenting, plaintiffs’ counter-arguments. As you know, especially in our reply papers (doc. 196) in support of the TRO, plaintiffs presented significant argument and evidence that contradicts the government’s statement to the FISC that plaintiffs only “recently-expressed views” (pages 2, 7) regarding the scope of the preservation orders. They also also undermines [sic] the few paragraphs of the Jewel Complaint and some other documents that the government has cherry-picked to support its argument.

In addition, Cohn complains that the government has left the impression this dispute pertains solely to phone records.

[W]e are concerned that the FISC has not been put on notice that the scope of the dispute about the preservation order in Jewel (or at least the scope of the plaintiffs’ view of the preservation order) reaches beyond telephone records into the Internet content and metadata gathered from the fiberoptic cables of AT&T. This is especially concerning because the FISC may have required (or allowed) destruction of some of that evidence without the knowledge that it was doing so despite the existence of a preservation order covering that information issued by the Northern District of California.

Cohn’s invocation of Internet data is particularly important as it raises the second of two known illegal practices (the other being watchlisting US persons in the phone dragnet without the legally required First Amendment review) the data for which would be aging off now or in the near future: the collection of Internet content in the guise of metadata. I believe the Internet dragnet continued until October 30, 2009, so if they were aging off data for the 6 months in advance, might be aged off in the next week or so.

I’m really curious whether this spat is going to be resolved before Reggie Walton finishes his service on FISC on May 19.

But one thing is certain: it’s a lot more fun to watch the FISC docket when ex parte status starts to break down.

Turns Out the NSA “May” Destroy Evidence of Crimes before 5 Years Elapse

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The metadata collected under this order may be kept online (that is, accessible for queries by cleared analysts) for five years, at which point it shall be destroyed. — Phone dragnet order, December 12, 2008

The Government “takes its preservation obligations with the utmost seriousness,” said a filing signed by Assistant Attorneys General John Carlin and Stuart Delery submitted Thursday in response to Presiding FISA Court Judge Reggie Walton’s accusation they had made material misstatements to him regarding the question of destroying phone dragnet data.

Recognizing that data collected pursuant to the Section 215 program could be potentially relevant to, and subject to preservation obligations in, a number of cases challenging the legality of the program, including First Unitarian Church of Los Angeles  v. NSA,

… Signals Intelligence Division Director Theresa Shea wrote in her March 17 declaration (starting at page 81) explaining what the government has actually done to protect data under those suits.

At which point Shea proceeded to admit that the government hadn’t been preserving the data they recognized was potentially relevant to the suits at hand.

… since the inception of the FISC-authorized bulk telephony metadata program in 2006, the FISC’s orders authorizing the bulk collection of telephony metadata under FISA Section 501 (known also as the Section 215 program) require that metadata obtained by the NSA under this authority be destroyed no later than five years after their collection. In 2011, the NSA began compliance with this requirement (when the first metadata collected under the FISC authority was ready to be aged off) and continued to comply with it until this Court’s March 10 order and the subsequent March 12, 2014 order of the FISC.

Thursday’s filing added to that clarity, not only saying so in a footnote, but then submitting another filing to make sure the footnote was crystal clear.

Footnote 6 on page 5 was intended to convey that “[c]onsistent with the Government’s understanding of these orders in Jewel and Shubert, prior to the filing of the Government’s Motion for Second Amendment to Primary Order, the Government complied with this Court’s requirements that metadata obtained by the NSA under Section 215 authority be destroyed no later than five years after their collection.”

The significance seems clear. The Government admits it could potentially have a preservation obligation from the filing of the first Section 215 suit, Klayman v. Obama, on June 6, 2013. But nevertheless, it destroyed data for 9 months during which it recognized it could potentially have a preservation obligation.  That means data through at least March 9, 2009 and perhaps as late as September 10, 2009 may already be destroyed, assuming reports of biannual purging is correct. Which would perhaps not coincidentally cover almost all of the phone dragnet violations discovered over the course of 2009. It would also cover all, or almost all, of the period (probably)  NSA did not have adequate means of identifying the source of its data (meaning that Section 215 data may have gotten treated with the lesser protections of EO 12333 data).

And the amount of data may be greater, given that NSA now describes in its 5 year age-off requirement no affirmative  obligation to keep data five years.

This all means the government apparently has already destroyed data that might be implicated in the scenario Judge Jeffrey White (hypothetically) raised in a hearing on March 19, in which he imagined practices of graver Constitutional concern than the program as it currently operates five years ago.

THE COURT: Well, what if the NSA was doing something, say, five years ago that was broader in scope, and more problematical from the constitutional perspective, and those documents are now aged out? And — because now under the FISC or the orders of the FISC Court, the activities of the NSA have — I mean, again, this is all hypothetical — have narrowed. And wouldn’t the Government — wouldn’t the plaintiffs then be deprived of that evidence, if it existed, of a broader, maybe more constitutionally problematic evidence, if you will?

MR. GILLIGAN: There — we submit a twofold answer to that, Your Honor.

We submit that there are documents that — and this goes to Your Honor’s Question 5B, perhaps. There are documents that could shed light on the Plaintiffs’ standing, whether we’ve actually collected information about their communications, even in the absence of those data.

As far as — as Your Honor’s hypothetical goes, it’s a question that I am very hesitant to discuss on the public record; but I can say if this is something that the Court wishes to explore, we could we could make a further classified ex parte submission to Your Honor on that point.

According to the NSA’s own admissions, until just over 5 years ago, the NSA was watchlisting as many as 3,000 Americans without doing the requisite First Amendment review required by law. And that evidence — and potentially the derivative queries that arose from it — is apparently now gone.

Which puts a new spin on the narratives offered in the press about DOJ’s delay in deciding what to do with this evidence. WSJ described the semiannual age-off and suggested the issue with destroying evidence might pertain to standing.

As the NSA program currently works, the database holds about five years of data, according to officials and some declassified court opinions. About twice a year, any call record more than five years old is purged from the system, officials said.

A particular concern, according to one official, is that the older records may give certain parties legal standing to pursue their cases, and that deleting the data could erase evidence that the phone records of those individuals or groups were swept up in the data dragnet.

FP’s sources suggested DOJ was running up against that semiannual deadline.

A U.S. official familiar with the legal process said the question about what to do with the phone records needn’t have been handled at practically the last minute. “The government was coming up on a five-year deadline to delete the data. Lawsuits were pending. The Justice Department could have approached the FISC months ago to resolve this,” the official said, referring to the Foreign Intelligence Surveillance Court.

There should be no February to March deadline. Assuming the semiannual age-off were timed to March 1, there should have already been a September 1 deadline, at which point NSA presumably would have destroyed everything moving forward to March 1, 2009.

Which may mean NSA and DOJ put it off to permit some interim age-off, all the out of control violations from 2009.

We shall see. EFF and DOJ will still litigate this going forward. But as I look more closely at the timing of all this, DOJ’s very belated effort to attempt to preserve data in February seems to have served, instead, to put off dealing with preservation orders until the most potentially damning data got destroyed.

All of this is separate from the dispute over whether DOJ violated the preservation order in Jewel, and that case may be coming up on the 5 year destruction of the last violative Internet metadata, which might be aged off by April 30 (based on the assumption the Internet dragnet got shut down on October 30, 2009).

But even for he more narrow question of the phone dragnet, for which the government admits it may have data retention obligations, the government seems to have already violated those obligations and, in the process, destroyed some of the most damning data about the program. 

DOJ’s Multiple Authorities for Destroying Evidence

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It seems like aeons ago, but just a week ago, EFF and DOJ had a court hearing over preserving evidence in the EFF lawsuits (Shubert, Jewel, and First Unitarian Church v. NSA). As I noted in two posts, a week ago Monday DOJ surprised EFF with the news that it had been following its own preservation plan, which it had submitted ex parte to Vaughn Walker, rather than the order Walker subsequently imposed. As a result, it has been aging off data in those programs (notably the PATRIOT-authorized Internet and phone dragnets) authorized by law, as opposed to what it termed Presidential authorization. DOJ’s behavior makes it clear that it is  trying to justify treating some data differently by claiming it was collected under different authorities.

Remember, there are at least five different legal regimes involved in the metadata dragnet:

  • EO 12333 authority for data going back to at least 1998
  • Stellar Wind authority lasting until 2004, 2006, and 2007 for different practices
  • PATRIOT-authorized authorities for Internet (until 2011) and phone records (until RuppRoge or something else passes)
  • SPCMA, which is a subset of EO 12333 authority that conducts potentially problematic contact chaining integrating US person Internet metadata
  • Five Eyes, which is EO 12333, but may involve GCHQ equities or, especially, ownership of the data

At the hearing and in their motions, EFF argued that their existing suits are not limited to any particular program (they didn’t name all these authorities, but they could have). Rather, they are about the act of dragnetting, regardless of what authority (so they’ll still be live suits after RuppRoge passes, for example).

EFF appears to have at least partly convinced Judge Jeffrey White, because on Friday he largely sided with EFF, extending the preservation order and — best as I can tell — endorsing EFF’s argument that their suits cover the act of dragnetting, rather than just the Stellar Wind, FISA Amendments Act, or phone and Internet dragnets.

With that as background, I want to look at a few things from the transcript of last Wednesday’s hearing. Read more →

Judge Reggie Walton Is Pissed that Government Is Making Material Misstatements to FISC, Again

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FISA Court Chief Judge Reggie Walton just issued a rather unhappy order requiring the government to explain why it materially misstated the facts about whether any plaintiffs had protection orders that governed the phone dragnet.

Generally, he wants to know why the government didn’t tell him that EFF had protection orders in the Jewel and Shubert cases. More specifically, he wants to know why they didn’t tell him that — as I reported here — the EFF had asked the government how they could claim there was no protection order when they had one in their suits of the larger dragnet.

A review of the E-mail Correspondence indicates that as early as February 26, 2014, the day after the government filed its February 25 Motion, the plaintiffs in Jewel and First Unitarian indeed sought to clarify why the preservation orders in Jewel and Shubert were not referenced in that motion. E-mail Correspondence at 6-7. The Court’s review of the E-mail Correspondence suggests that the DOJ attorneys may have perceived the preservation orders in Jewel and Shubert to be immaterial to the February 25 Motion because the metadata at issue in those cases was collected under what DOJ referred to as the “President’s Surveillance Program” (i.e., collection pursuant to executive authority), as opposed to having been collected under Section 215 pursuant to FISC orders — a proposition with which plaintiffs’ counsel disagreed. Id at 4. As this Court noted in the March 12 Order and Opinion, it is ultimately up to the Northern District of California, rather than the FISC, to determine what BR metadata is relevant to the litigation pending before the court.

As the government is well aware, it has a heightened duty of candor to the Court in ex parte procedings. See MODEL RULES OF PROF’L CONDUCT R. 3.3(d) (2013). Regardless of the government’s perception of the materiality of the preservation orders in Jewel and Shubert to its February 25 Motion, the government was on notice, as of February 26, 2014, that the plaintiffs in Jewel and First Unitarian believed that orders issued by the District Court for the Northern District of California required the preservation of the FISA telephony metadata at issue in the government’s February 25 Motion. E-mail Correspondence at 6-7. The fact that the plaintiffs had this understanding of the preservation orders–even if the government had a contrary understanding–was material to the FISC’s consideration of the February 25 Motion. The materiality of that fact is evidenced by the Court’s statement, based on the information provided by the government in the February 25 Motion, that “there is no indication that nay of the plaintiffs have sought discovery of this information or made any effort to have it preserved.” March 7 Opinion and Order at 8-9.

The government, upon learning this information, should have made the FISC aware of the preservation orders and of the plaintiffs’ understanding of their scopre, regardless of whether the plaintiffs had made a “specific request” that the FISC be so advised. Not only did the government fail to do so, but the E-mail Correspondence suggests that on February 28, 2014, the government sought to dissuade plaintiffs’ counsel from immediately raising this issue with the FISC or the Northern District of California. E-mail Correspondence at 5.

In a number of places, Walton provides an out for the government, suggesting they might just be stupid and not obstructing (those are my words, obviously). He even goes so far as to suggest that DOJ might have an internal communication problem between the Civil Division, which is litigating the EFF suits, and the National Security Division, which works with FISC.

But then he notes that both Civil AAG Stuart Delery and Acting NSD AAG John Carlin submitted the filings to him.

The government’s failure to inform the FISC of the plaintiffs’ understanding that the prior preservation orders require retention of Section 591 telephony metadata may have resulted from imperfect communication or coordination within the Department of Justice rather than from deliberate decision-making.4 Nonetheless, the Court expects the government to be far more attentive to its obligations in its practice before this Court.

4 Attorneys from the Civil Division of the Department of Justice participated in the E-Mail Correspondence with plaintiffs’ counsel. As a general matter, attorneys from the National Security Division represent the government before the FISC. The February 25 Motion, as well as the March 13 Response, were submitted by the Assistant Attorney General for the Civil Division and the Acting Attorney General for the National Security Division.

Frankly, I hope Walton ultimately tries to learn why he wasn’t told about these protection orders in more detail years ago, when the government was deciding whether or not to destroy evidence of lawbreaking that Walton first identified in 2009. I also hope he gets to the bottom of why Deputy Attorney General James Cole had to intervene in this issue. But for now, I’m happy to see DOJ taken to the woodshed for misinforming the Court.

Update: Meanwhile, on the other coast, Judge Jeffrey White issued a protection order that is far broader than the government would prefer it to be. The government had implied that the First Unitarian Church suit only covered Section 215; earlier this week (I’ve got a post half written on it), EFF argued they’re challenging the dragnet, irrespective of what authorization the government used to collect it. Nothing in White’s order limits the protection order to Section 215 and this passage seems to encompass the larger dragnet.

Defendants’ searching of the telephone communications information of Plaintiffs is done without lawful authorization, probable cause, and/or individualized suspicion. It is done in violation of statutory and constitutional limitations and in excess of statutory and constitutional authority. Any judicial, administrative, or executive authorization (including any business records order issued pursuant to 50 U.S.C. § 1861) of the Associational Tracking Program or of the searching of the communications information of Plaintiffs is unlawful and invalid.

Update: fixed a typo in which I inadvertently said Walton caused rather than found the lawbreaking in 2009.

The Clear Precedent for Carrie Cordero’s “Uncharted Territory” of Destruction of Evidence

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Shane Harris has a report on the government’s odd behavior in regards to preserving the phone dragnet data in light of the suits challenging its legality.

It’s surprising on three counts. First, because he claims the legal back and forth has not previously been reported.

Now, that database will include phone records that are older than five years — not exactly the outcome that critics of the NSA program were hoping for. A dramatic series of legal maneuvers, which have not been previously reported, led the outcome.

It’s surprising not just because the “legal maneuvers” have in fact been reported before (though not the detail that James Cole got involved, though it’s not yet clear how his involvement affected the actual legal maneuvers rather than the internal DOJ communication issues). But also because Harris neglects to mention key details of those legal maneuvers — notably that EFF reminded DOJ, starting on February 26, that it had preservation orders that should affect the dragnet data, reminders which DOJ stalled and then ignored.

Harris’ piece is also surprising because of the implicit suggestion that NSA hasn’t been aging off data regularly, as it is supposed to be.

A U.S. official familiar with the legal process said the question about what to do with the phone records needn’t have been handled at practically the last minute. “The government was coming up on a five-year deadline to delete the data. Lawsuits were pending. The Justice Department could have approached the FISC months ago to resolve this,” the official said, referring to the Foreign Intelligence Surveillance Court.

There should be no “deadline” here — aside from the daily “deadline” that should automatically age off the five year old data. Now, the WSJ had previously reported that that’s not actually how age-off works.

As the NSA program currently works, the database holds about five years of data, according to officials and some declassified court opinions. About twice a year, any call record more than five years old is purged from the system, officials said.

But even assuming NSA only ages off data twice a year (in which case they should stop claiming they only “keep” data for 5 years because they already keep some of it for 5 1/2 years), most of these suits are well older than 6 months old, predating what might have been an August age-off, which means unless NSA already deviated from its normal pattern, it deleted data relevant to the suits.

By far the most surprising detail in Harris’ story, however, is this response from former DOJ National Security Division Counsel Carrie Cordero to the news that Deputy Attorney General James Cole has gotten involved. This is, Cordero claims, “uncharted territory.”

“This is all uncharted territory,” said Carrie Cordero, a former senior Justice Department official who recently served as the counsel to the head of the National Security Division. “Given the complexity and the novelty of this chain of events, it’s a good thing that the deputy attorney general is personally engaged, and it demonstrates the significant attention that they’re giving to it.”

To be more specific about Cordero’s work history, from 2007 to 2011, she was deeply involved in FISA-related issues, first at ODNI and then at DOJ’s NSD.

In 2009, I served as Counsel to the Assistant Attorney General for National Security at the Unit ed States Department of Justice, where I co – chaired an interagency group created by the Director of National Intelligence (DNI) to improve FISA processes. From 2007 – 2009, I served in a joint duty capacity as a Senior Associate General Counsel at the Office of the Director of National Intelligence, where I worked behind the scenes on matters relating to the legislative efforts that resulted in the FISA Amendments Act of 2008.

Given her position in the thick of FISA-related issues, one would think she was at least aware of the protection order Vaughn Walker issued on November 6, 2007 ordering the preservation of evidence, up to and including “tangible things,” in the multidistrict litigation issues pertaining to the dragnet.

[T]he court reminds all parties of their duty to preserve evidence that may be relevant to this action. The duty extends to documents, data and tangible things in the possession, custody and control of the parties to this action,

And Cordero presumably should be aware that Walker renewed the same order on November 13, 2009, extending it to cover the Jewel suit, which had an ongoing focus.

Cordero is presumably aware of two other details. First, there should be absolutely no dispute that the phone dragnet was covered by these suits. That’s because at least as early as May 25, 2007 (and again in a declaration submitted October 2009), Keith Alexander included the phone dragnet among the things he considered related to the EFF and other suits over which he claimed state secrets.

In particular, disclosure of the NSA’s ability to utilize the TSP (or, therefore, the current FISA Court-authorized content collection) in conjunction with contact chaining [redacted–probably relating to data mining] would severely undermine efforts to detect terrorist activities.

[snip]

To the extent that the NSA’s bulk collection and targeted analysis of communication meta data may be at issue in this case, those activities–as described in paragraphs 27 and 28 above–must also be protected from disclosure.

In paragraphs 27 and 28 and the following paragraphs, Alexander named the FISC Pen Register and Telephone Records Orders by name.

Thus, as far back as 2007, the NSA acknowledged that it used its content collection in conjunction with its metadata dragnets, including data obtained pursuant to the FISA dragnet orders.

Read more →

The Government Tries to Quickly Force Feed Its Dog Its Phone Dragnet Homework

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I have been following the government’s claims that it needs to make the phone dragnet plaintiffs look bad preserve evidence in the phone dragnet cases. I noted:

  1. NSA’s claim, on February 20, that it might need to preserve the phone dragnet information
  2. EFF Legal Director Cindy Cohn’s observation that NSA already should have been preserving phone dragnet data because of earlier orders in EFF cases
  3. NSA’s own claim, in 2009, that it was under a preservation order that might prevent it from destroying illegal alert information
  4. NSA’s own quickness to destroy 3,000 violative files in 2012 when caught retaining data in ways it shouldn’t have been
  5. NSA’s rather bizarre claim — given their abysmal track record on this point — that a great concern about defendants’ rights meant they had to keep the data
  6. The likelihood that, that claim of concern about defendants’ rights notwithstanding, NSA had probably already destroyed highly relevant data pertaining to Basaaly Moalin
  7. FISC’s equally bizarre — given their own destruction of any normal meaning of the word, “relevant” — order to force the government to continue destroying the dragnet data

That last bit — FISC’s order that the government go on destroying data in spite of existing protection orders to retain it — happened Friday.

Since Friday, the EFF has been busy.

First, it filed a motion for a Temporary Restraining Order to retain the records, pointing out that there have been two preservation order in effect for at least 5 years that should govern the phone dragnet.

There has been litigation challenging the lawfulness of the government’s telephone metadata collection activity, Internet metadata collection activity, and upstream collection activity pending in the Northern District of California continuously since 2006. The government has been under evidence preservation orders in those lawsuits continuously since 2007.

The first-filed case was Hepting v. AT&T, No. 06-cv-0672 (N.D. Cal). It became the lead case in the MDL proceeding in this district, In Re: National Security Agency Telecommunications Records Litigation, MDL No. 06-cv-1791-VRW (N.D. Cal). On November 6, 2007, this Court entered an evidence preservation order in the MDL proceeding. ECF No. 393 in MDL No. 06-cv- 1791-VRW. One of the MDL cases, Virginia Shubert, et al., v. Barack Obama, et al. No. 07-cv- 0603-JSW (N.D. Cal.), remains in litigation today before this Court, and the MDL preservation order remains in effect today as to that case.

In 2008, movants filed this action—Jewel v. NSA—and this Court related it to the Hepting action. This Court entered an evidence preservation order in Jewel. ECF No. 51. The Jewel evidence preservation order remains in effect as of today.

EFF also filed a similar motion with the FISA Court.

And it provided all the emailed reminders it sent the government, starting on February 26 after the government filed a motion with FISC to destroy the data, that it was already under a preservation order. On February 28, DOJ asked EFF to hold off until roughly March 5. But DOJ did nothing at that time, and EFF followed up again on March 7, after the order, asking how it was that the FISC didn’t know that existing preservation orders covered the phone dragnet. In response, DOJ’s Marcia (Marcy) Berman got dragged back into the case to give this convincing response.

[T]he Government’s motion fo the FISC, and the FISC’s decision today [March 7], addressed the recent litigation challenging the FISC-authorized telephony metadata collection under Section 215-litigation as to which there are no preservation orders. As we indicated last week, the Government’s motion did not address the pending Jewel (and Shubert) litigation because the district court had previously entered preservation orders applicable to those cases. As we also indicated, since the entry of those orders the Government has complied with our preservation obligations in those cases. At the time the preservation issue was first litigated in the MDL proceedings in 2007, the Government submitted a classified ex parte, in camera declaration addressing in detail the steps taken to meet our preservation obligations. Because the activities undertaken in connection with the President’s Surveillance Program (PSP) were not declassified until December 2013, we were not able to consult with you previously about the specific preservation steps that have been taken with respect to the Jewel litigation. However, the Government described for the district court in 2007 how it was meeting its preservation obligations, including with respect to the information concerning the PSP activities declassified last December. We have been working with our clients to prepare an unclassified summary of the preservation steps described to the court in 2007 so that we can address your questions in an orderly fashion with Judge White, if you continue to believe that is necessary.

After San Francisco Judge Jeffrey White ordered the government to explain itself, the government changed the timeline, suppressing the fact that they told EFF to hold off on making any filings. It also said it would just have to keep destroying data.

Therefore, in light of the FISC’s March 7 order, the Government currently remains subject to orders of the FISC—the Article II Court established by Congress with authority to issue orders pursuant to FISA and to impose specific minimization requirements—which orders require the destruction of call-details records collected by the NSA pursuant to Section 215 that are more than five years old.

In light of the obligations created by those orders, on March 7, 2014, upon receipt of the FISC’s decision, the Government filed a notice in First Unitarian and other cases challenging the legality of the Section 215 telephony metadata program of the Government’s intention, as of the morning of Tuesday, March 11, 2014, to comply with applicable FISC orders requiring the destruction of call-detail records at this time, absent a court order to the contrary.

Judge White was not impressed — he issued an order requiring the government to retain the data.

There are two things, even at first glance, that don’t make sense about all this.

First, there’s still one case that hasn’t been officially mentioned in any court discussion of retaining data I know of: Basaaly Moalin’s challenge to his dragnet identification, based off 2007 data that has probably already been destroyed but which almost certainly would reflect the many violations characteristic of the program at the time.

Then there’s the likelihood that one or both of the EFF cases was the case mentioned on February 17, 2009 — just over the 5 year age-off period at this point — regarding age-off requirements. If it was relevant then, why isn’t it now? Note, Reggie Walton is still presiding over the same decisions, so if that earlier case were an EFF one, Walton should know about it.

I would normally think this charade was just two sides lobbying for good press. Except that the phone dragnet data from just over 5 years ago — the stuff that would age off if the government followed FISC’s order — would show a great deal of violations, almost certainly constitutionally so.

So who is the entity in such a rush to destroy that data? DOJ? Or the FISC?