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In Lawsuit Against NSA Surveillance, Coalition Moves to Prevent Destruction of Evidence

Attorneys from the Electronic Frontier Foundation, which represent twenty-two organizations in a lawsuit against the National Security Agency, have filed a motion to prevent the government from destroying any evidence related to the case. The evidence also apparently relates to other lawsuits against the NSA.

The case was filed in July of last year. It stems from a Foreign Intelligence Surveillance Court (FISC) order, which NSA whistleblower revealed, that the NSA was collecting the phone records of millions of American consumers who have service with Verizon.

A coalition of membership and political advocacy organizations that includes Unitarian church groups and gun ownership advocates signed on to a lawsuit to challenge the collection of their call records, which EFF argues violates their First Amendment right of association.

According to the EFF’s motion, it is unclear whether the government understands it must preserve all relevant evidence in the case. This is now an “emergency matter” because “on Friday, March 7, based on a mistaken belief that no preservation order existed for the material at issue, and without consultation with plaintiff or this Court, the FISC denied the government’s motion to be allowed to preserve the telephone records it had collected.”

“Late Friday, the government served notice in the First Unitarian case that it intended to begin destroying the records,” the motion adds.

EFF has requested a temporary restraining order to “prevent the destruction of evidence before the court has an opportunity to determine whether destruction of this evidence” is contrary to a prior preservation order.

The motion notes, “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.”

One case, Shubert et al. v. Barack Obama, et al., is still pending in court—the same court where this recent case was filed. There is a preservation order in effect.

“The government has never sought to seek clarification of its preservation obligations regarding telephone metadata records from this Court or raised the issue with plaintiffs,” the motion argues. “Instead, the government defendants chose to raise the issue of preservation of telephone metadata records in an ex parte proceeding before the Foreign Intelligence Surveillance Court, without any notice to plaintiffs and without mentioning its obligations with regard to the same telephone records in Jewel v. NSA and Shubert v. Obama.”

In secret, the government went before FISC for a ruling on keeping metadata past five years.

“Plaintiffs learned of the government’s motion by reading the news media, and asked counsel for the government defendants to explain why they had not told the FISC about the Jewel evidence preservation order,” the motion explains.

Destruction of records would conflict with preservation orders relevant to two court cases challenging surveillance. Ultimately, the coalition would like the records destroyed but they are important to the lawsuit.

The motion also states, “These records are both an affront to the rights of millions of Americans and proof of their violation. Plaintiffs have no objection to severe restrictions on the Government’s right to access and use the information, which will address the public interest in the documents being destroyed. However, it remains in the public interest to wait a short period of time before taking action, so that the fate of the documents can be addressed in an orderly fashion.”

Last month, the Wall Street Journal reported that unnamed government officials believed they may have to expand their collection of data because of the lawsuits. The question when this was reported was whether this was intended to dissuade Americans from bringing lawsuits against surveillance.

EFF legal director Cindy Cohn questioned why the government was now “considering this move.” EFF has had a lawsuit over NSA surveillance since 2008. “I think they’re looking for any way to throw rocks at the litigation…To the extent this is a serious concern, we should have had this discussion in 2008,” Cohn added.

Again, the government had never seriously addressed preservation of surveillance evidence before.

It all leads one to wonder if evidence has already been destroyed that is relevant to these cases that EFF and also the American Civil Liberties Union (ACLU) have filed in courts.

Journalist Marcy Wheeler astutely asked, “If the NSA is so cautious about retaining evidence in case of a potential crime, then why did it just blast away the 3,000 files of phone dragnet information they found stashed on a random server, which may or may not have been mingled in with STELLAR WIND data it found in 2012?”

Efforts to challenge warrantless surveillance have been frustrated by the government invoking state secrets privilege. Now, it appears the government expects the plaintiffs to be granted standing and then that raises the issue of having all the evidence relevant to the case.

However, is this some kind of stall tactic? A move to delay the proceedings? This type of concern about evidence because call detail records can only be retained for so long has never been expressed to a court before. But the Privacy and Civil Liberties Oversight Board knows technical personnel that records have been destroyed.

So, how much evidence is gone forever never to be brought up in court when citizens are challenging the extent to which alleged illegal surveillance has been conducted by the government?

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, Unauthorized Disclosure. Follow him on Twitter: @kgosztola

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