Court Again Orders Government Not to Destroy Evidence in NSA Spying Case

Judge Requires Explanation by Friday About Whether Government Is Still Destroying Evidence Despite Court Order

The Electronic Frontier Foundation (EFF) asked a judge today to schedule an emergency hearing, after learning that the government is apparently still destroying evidence of NSA spying despite a temporary restraining order (TRO) issued by the court in March. In an order issued in response this afternoon, U.S. District Judge Jeffrey S. White instructed the government not to destroy any more materials and file a brief responding to EFF’s allegations by 12 p.m PT on Friday.

“In communications with the government this week, EFF was surprised to learn that the government has been continuing to destroy evidence relating to the mass interception of Internet communications it is conducting under section 702 of the FISA Amendments Act even though the court explicitly ordered it to stop in March,” said EFF Legal Director Cindy Cohn. “Specifically, the government is destroying content gathered through tapping into the fiberoptic cables of AT&T.”

She added:

Once again, the government has apparently secretly and unilaterally reinterpreted its obligations about the evidence preservation orders, and has determined that it need not comply. Today marks a year to the day that Edward Snowden leaked documents confirming the NSA’s massive spying, yet the government is still engaging in outlandish claims and gamesmanship – even destroying evidence – to block an adversarial court ruling on whether its mass spying is legal or constitutional.

EFF filed its Jewel v. NSA lawsuit in 2008. In recent weeks, declarations from the government in the Jewel case made it clear that the government has destroyed five years of the content it collected between 2007 and 2012, three years worth of the telephone records it seized between 2006 and 2009, and seven years of the Internet records it seized between 2004 and 2011, when it claims to have ended the Internet records seizures. In an emergency hearing last March over that evidence destruction, Judge White issued the current TRO, ordering the government to stop any further destruction of records or content until the matter could be sorted out.

“There can be no dispute that the government was aware of the broad scope of this TRO, and in his order this afternoon, Judge White confirmed that it reached materials gathered under Section 702,” Cohn said. “We’re asking Judge White to enforce the order and impose on the government whatever further measures are necessary to ensure that no further destruction of evidence occurs. It will be very interesting to see what the government says in its defense in its briefing tomorrow.”

For EFF’s full emergency application:
https://www.eff.org/document/plaintiffs-emergency-application-enforce-courts-tro

For the judge’s order:
https://www.eff.org/document/order-re-evidence-preservation-0

For more on Jewel v. NSA:
https://www.eff.org/cases/jewel

Contacts:Cindy Cohn
   Legal Director
   Electronic Frontier Foundation
   [email protected]

About EFF:The Electronic Frontier Foundation is the leading organization protecting civil liberties in the digital world. Founded in 1990, we defend free speech online, fight illegal surveillance, promote the rights of digital innovators, and work to ensure that the rights and freedoms we enjoy are enhanced, rather than eroded, as our use of technology grows. EFF is a member-supported organization. Find out more at https://www.eff.org.