Court Orders Government Not to Destroy Evidence in Cases Against the NSA

Nadia Kayyali and Kurt Opsahl
The Electronic Frontier Foundation

In an emergency hearing on March 19th, the government tried to convince the Northern District Court of California that the NSA should be relieved of its obligation to preserve evidence of dragnet collection of call records for the EFF’s First Unitarian case. The arguments in court revealed an astounding level of obfuscation from government lawyers around the numerous lawsuits challenging NSA spying.

There were a number of issues at the core of the argument. EFF was asking the government to preserve information that it never should have had in the first place. The government was misconstruing (willfully or blindly) our lawsuits against the NSA, and ultimately the government was trying to force a very narrow view of its duty to preserve evidence on the Court.

The government tried to frame the issue as one of resources, arguing that the Court needed to balance preservation of information against “the cost of retaining it, both in terms of financial costs as they are quantified in the papers submitted to the court, as well as the cost in personnel who, the Government argues, would be diverted from their core mission.” Essentially, the government tried to argue that compliance with its legal duty to preserve evidence in a lawsuit would divert too many NSA resources.

To complicate matters, the evidence in question is covered by a FISA Court (FISC) order that all bulk metadata collected pursuant to its Section 215 authorization must be destroyed after five years. In other words, under that order the NSA would only have possession of metadata that dates back to March of 2009 if it weren’t for the pending litigation—in fact, as discussed below, there is some indication that evidence may have been destroyed, regardless of the pending litigation. What’s more, the government had applied to FISC for leave to retain the information, which FISC denied.

So why are we here? The government has insisted that we need to show evidence of each individual being surveilled. While we believe the case can go forward without each individual’s call detail records, we also can’t allow the government to simultaneously insist the evidence is necessary and destroy that evidence.

The government’s response to these issues has not been reassuring. The government stepped back from the offer to retain evidence that it made to the FISC. As we pointed out: “what we proposed is what they proposed to the FISC. They proposed just keeping everything, for purposes of the litigation.”

Now the government is fighting against its own proposal. Claiming the burden would be too high, the government said in court that the last five years will be good enough; no need to worry about the first three years of this program. The Court did not buy the government’s arguments, noting that, hypothetically, the spying program could have changed over the years, and recognizing the “potential risk of destroying older documents.”

This potential risk is very real: we know that the government has claimed surveillance was authorized under a number of different authorities, presidential and FISA, and we know that the government plays word games when it comes to defining the way that it conducts dragnet surveillance.

The hearing also exposed an issue that had been hidden below the surface for years. The government was misconstruing the arguments in our lawsuits. According to the government: “First Unitarian is about collection of bulk telephony metadata pursuant to Section 215 of the USA PATRIOT Act. Jewel certainly is about — there’s no dispute — bulk collection of Internet data under Presidential authority.” This is correct as far as it goes, but the government wants to limit the cases to the particular programs under the government’s own categorization. The Jewel and First Unitarian cases are about far more: the unlawful and unconstitutional spying on ordinary Americans, regardless of what ‘program’ or supposed legal authority the government uses to justify the spying.

As this disagreement on the scope of the claims became clear, the Court had some questions for the government: “what I hear you saying is the Government . . . preserved all of the Jewel-related information, i.e., from the so-called ‘TSP’ or ‘Presidential’ program; but it secretly destroyed information related to FISC orders about which the Plaintiffs had no knowledge or no way of knowing. Is that what you’re saying?”

The government conceded that, for the Jewel case, it had only preserved evidence about the program during the time it was authorized by the President, but not spying done under FISC orders. This issue will be briefed and the Court will address it at a later date.

The government does not dispute that the FISC program was implicated by the First Unitarian case. The government has also strenuously denied that it destroyed any evidence since it was on notice of the First Unitarian case. In court, the government unambiguously stated “Since this suit was filed, the NSA has destroyed no telephony metadata collected under Section 215 for purposes of complying with the FISC’s five-year retention requirement, or at least, as far as I am aware, for any other reason.”

The government’s statement in court is not the whole story. A declaration from Theresa Shea, Director of the Signals Intelligence Directorate at the NSA, indicated that “since the inception of the FISC-authorized bulk telephony metadata program in 2006, the FISC’s orders . . . 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 . . . and continued to comply with it until this Court’s March 10 order and the subsequent March 12 order of the FISC.” Director Shea noted that the oldest records currently available were from 2009, which fits with continued destruction into 2014.

These two statements from the government are inconsistent, and leave open the disturbing possibility that the NSA has destroyed evidence.

On March 21, the Court ordered the government to preserve evidence relevant to First Unitarian. The Court also ordered the attorneys in this case to inform their clients to halt any practices, government or business, that would result in destruction of evidence. On the same day, the FISC issued a scathing order accepting our motion to correct the record, in which we informed the FISC of information the government had failed to submit. The FISC order lambasted the government for not telling it about preservation orders in Jewel and the related Shubert case, an especially critical omission because the earlier court opinion relied on the notion that no preservation orders had ever been issued.

Now that the government’s preservation obligations moving forward have been settled, in the coming weeks, the parties will brief the Court on the remaining question of whether evidence has already been improperly destroyed.