By The Electronic Frontier Foundation
The Electronic Frontier Foundation told a federal court Friday that there was no doubt that the government has destroyed years of evidence of NSA spying – the government itself has admitted to it in recent court filings.
In a brief filed in response to this illegal destruction, EFF is asking that the court make an “adverse inference” that the destroyed evidence would show that plaintiffs communications and records were in fact swept up in the mass NSA spying programs.
EFF filed its first lawsuit challenging illegal government spying in 2006. The current dispute arises from Jewel v. NSA, EFF’s 2008 case that challenges the government’s mass seizure of three kinds of information: Internet and telephone content, telephone records, and Internet records, all going back to 2001.
EFF’s brief notes that the government’s own declarations make 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.
“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,” said EFF legal director Cindy Cohn.
“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.”
The government’s reinterpretation of EFF’s lawsuits and the preservation orders came to light in March, when government lawyers revealed secret court filings from 2007.
In these filings, the government unilaterally claimed that EFF’s lawsuits only concerned the original Bush-era spying program, which was done purely on claims of executive power. Without court approval, much less telling EFF, the government then decided that it did not need even to preserve evidence of the same mass spying done pursuant to FISA court orders, which were obtained in 2004 for Internet records, 2006 for telephone records, and 2007 for mass content collection from fiber optic cables.
“EFF and our clients have always had the same simple claim: the government’s mass, warrantless surveillance violates the rights of all Americans and must be stopped. The surveillance was warrantless under the executive’s authority and it is still warrantless under the FISA court, as those orders are plainly not warrants.” said Cohn.
“The government’s attempt to limit our claims based upon their secret, shifting rationales is nothing short of outrageous, and their clandestine decision to destroy evidence under this flimsy argument is rightly sanctionable. Nevertheless, we are simply asking the court to ensure that we are not harmed by the government’s now-admitted destruction of this evidence.”
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Previously:
* House Committee Puts NSA On Notice Over Encryption Standards.
* Which Tech Companies Help Protect You From Government Data Demands?
* Lawsuit Demands DOJ Release More Secret Surveillance Court Rulings.
* Human Rights Organizations To Foreign Ministers: Stop Spying On Us.
* What The Proposed NSA Reforms Wouldn’t Do.
* Technologists Turn On Obama.
* Dear Supreme Court: Set Limits On Cell Phone Searches.
* EFF Fights National Security Letter Demands On Behalf Of Telecom, Internet Company.
* Eighth-Grader Schools The NSA.
* You Know Who Else Collected Metadata? The Stasi.
* Today We Fight Back.
* The Day We Fight Back.
* FAQ: The NSA’s Angry Birds.
* Jon Stewart: The Old Hope-A-Dope.
* Four Blatantly False Claims Obama Has Made About NSA Surveillance.
* EFF To DOJ In Lawsuit: Stop Pretending Information Revealed About NSA Over Last Seven Months Is Still A Secret.
* Judge On NSA Case Cites 9/11 Report, But It Doesn’t Actually Support His Ruling.
* Edward Snowden’s Christmas Message.
* Jon Stewart: Obama Totally Lying About NSA Spying.
* Presidential Panel To NSA: Stop Undermining Encryption.
* The NSA Is Coming To Town.
* 60 Minutes We Can’t Get Back.
* Why Care About The NSA?
* NSA Surveillance Drives Writers To Self-Censor.
* Filed: 22 Firsthand Accounts Of How NSA Surveillance Chilled The Right To Association.
* Claim On ‘Attacks Thwarted’ By NSA Spreads Despite Lack Of Evidence.
* Obama Vs. The World.
* How A Telecom Helped The Government Spy On Me.
* UN Member States Asked To End Unchecked Surveillance.
* Government Standards Agency: Don’t Follow Our Encryption Guidelines Because NSA.
* Five More Organizations Join Lawsuit Against NSA.
* A Scandal Of Historic Proportions.
* Item: NSA Briefing.
* The Case Of The Missing NSA Blog Post.
* The NSA Is Out Of Control.
* Patriot Act Author Joins Lawsuit Against NSA.
* Obama’s Promises Disappear From Web.
* Why NSA Snooping Is A Bigger Deal In Germany.
* Item: Today’s NSA Briefing.
* NSA Briefing: It Just Got Worse (Again).
* Song of the Moment: Party at the NSA.
* It Not Only Can Happen Here, It Is Happening Here.
* What NSA Transparency Looks Like.
* America’s Lying About Spying: Worse Than You Think.
* Obama Continues To Lie His Ass Off About The NSA.
* The Surveillance Reforms Obama Supported Before He Was President.
* America’s Spying: Worse Than You Think.
* Has The U.S. Government Lied About Its Snooping? Let’s Go To The Videotape.
* Who Are We At War With? That’s Classified.
* Six Ways Congress May Reform NSA Snooping.
* NSA Says It Can’t Search Its Own E-Mails.
* Does The NSA Tap That?
* Obama Explains The Difference Between His Spying And Bush’s Spying.
* FAQ: What You Need To Know About The NSA’s Surveillance Programs.
* NSA: Responding To This FOIA Would Help “Our Adversaries”.
* Fact-Check: The NSA And 9/11.
* The NSA’s Black Hole: 5 Things We Still Don’t Know About The Agency’s Snooping.
* Defenders Of NSA Surveillance Citing Chicago Case Omit Most Of Mumbai Plotter’s Story.
* Obama’s War On Truth And Transparency.
* ProPublica’s Guide To The Best Stories On The Growing Surveillance State.
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See also:
* Jimmy Carter: America’s Shameful Human Rights Record.
* James Goodale: Only Nixon Harmed A Free Press More.
* Daniel Ellsberg: Obama Has Committed Impeachable Offenses.
* Paul Steiger: Why Reporters In The U.S. Now Need Protection.
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Comments welcome.
Posted on June 2, 2014