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Electronic Frontier Foundation Government Privacy The Courts

EFF Tells Court That the NSA Knowingly and Illegally Destroyed Evidence 269

Posted by samzenpus
from the was-that-wrong? dept.
An anonymous reader writes in with this latest bit of EFF vs NSA news. 'We followed the back and forth situation earlier this year, in which there were some legal questions over whether or not the NSA needed to hang onto surveillance data at issue in various lawsuits, or destroy it as per the laws concerning retention of data. Unfortunately, in the process, it became clear that the DOJ misled FISA court Judge Reggie Walton, withholding key information. In response, the DOJ apologized, insisting that it didn't think the data was relevant — but also very strongly hinting that it used that opportunity to destroy a ton of evidence. However, this appeared to be just the latest in a long history of the NSA/DOJ willfully destroying evidence that was under a preservation order.

The key case where this evidence was destroyed was the EFF's long running Jewel v. NSA case, and the EFF has now told the court about the destruction of evidence, and asked the court to thus assume that the evidence proves, in fact, that EFF's clients were victims of unlawful surveillance. The DOJ/NSA have insisted that they thought that the EFF's lawsuit only covered programs issued under executive authority, rather than programs approved by the FISA Court, but the record in the case shows that the DOJ seems to be making this claim up.'
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EFF Tells Court That the NSA Knowingly and Illegally Destroyed Evidence

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  • Dear Slashdot (Score:4, Interesting)

    by Anonymous Coward on Wednesday June 04, 2014 @08:36PM (#47168521)
    1) Is posting AC really Anonymous?
    2) Has Slashdot ever received a FISA letter?
    • Re:Dear Slashdot (Score:4, Insightful)

      by EmagGeek (574360) <gterich@aoMONETl.com minus painter> on Wednesday June 04, 2014 @09:05PM (#47168651) Journal

      Of course they have. Nothing you do on the Internet is anonymous.

      • by Camael (1048726)

        I hereby request for a canary clause!

        At least let me know if the puir bird is dead.

    • by HiThere (15173)

      1) No, posting AC isn't really anonymous.
      2) No FISA letter is needed. Transmissions aren't encrypted. (Well, perhaps they are now, they weren't until recently. Now my browser hides the communications protocol, so I can't easily tell. But https is not more secure than your ISP. Why try to do a site-by-site breach of security when a man-in-the-middle is already in place.)

      • by Kufat (563166)

        HTTPS isn't "not more secure than your ISP." It's not more secure than the worst trusted root CA. In the absence of a CA compromise, your ISP cannot MitM HTTPS or other SSL-based protocols without your browser/client warning you about it.

      • Post submissions are not encrypted.

        Source: Wireshark capture when I previewed this post.
        • If you are a subscriber, then you can use HTTPS, however your traffic then stands out to traffic analysis (it's not hard to tie the encrypted connection which sends more information than an HTTP GET with the sudden appearance of a new post in the next user's unencrypted request for the page). They're also, I believe, still using a certificate that was issued before Heartbleed was disclosed and so is almost certainly compromised.
          • I didn't think anybody would still be a paid subscriber after DICE bought the site. If the cert is dead rendering SSL/TLS is pointless, are their any other compelling reasons to continue to pay?
  • by Firethorn (177587) on Wednesday June 04, 2014 @08:36PM (#47168525) Homepage Journal

    In general I think that destroying evidence should result in the assumption that they're hiding a worst case scenario. So I agree with the EFF. Destroying evidence = automatically guilty of accusations. Have a nice day.

    • by mysidia (191772) on Wednesday June 04, 2014 @09:04PM (#47168645)

      In addition to the court stipulating that whatever the EFF had claimed the evidence said: everyone down the chain of management that was responsible for knowingly ordering destruction of evidence involved with their case, should be criminally prosecuted personally, (or impeached, if a cabinet official or elected official).

    • by Rich0 (548339) on Wednesday June 04, 2014 @09:41PM (#47168789) Homepage

      In general I think that destroying evidence should result in the assumption that they're hiding a worst case scenario. So I agree with the EFF. Destroying evidence = automatically guilty of accusations. Have a nice day.

      The problem with this is that what is that even going to accomplish? Ok, the court rules that they illegally spied on US citizens. They tell the NSA that they have to stop doing that. The NSA says, "fine - we were never doing it in the first place, and we'll continue to not do it." Then they keep doing what they've been doing all along, which they define as not being illegal spying by whatever contortions they apply.

      It isn't like the court is going to make somebody go to jail if the law is broken. If YOU spy on somebody illegally you'll get locked up for it. If the government does it, well, I guess the rules just must not have been clear enough.

      • by TubeSteak (669689)

        The problem with this is that what is that even going to accomplish?

        For years the courts have been throwing out cases because "you can't prove anything" meant that the plaintiffs did not have standing to sue.
        If the court stipulates that the plaintiffs were spied on, then they have standing to sue, and the case can move forward.

      • by s.petry (762400) on Thursday June 05, 2014 @12:29AM (#47169413)

        The problem with this is that what is that even going to accomplish?

        Let me ask you a question: Do you really and truly believe that taking no action will make things better, worse, or will the corruption remain the same? In the best case scenario, things remain the same (being illegal and unconstitutional). Historically however, inaction more often results in things becoming worse. Inaction never results in things improving, at least for the recipients of the abuse.

        Many constitutional rights violations are felonies. Convicted felons can not hold a security clearance and can not work for an agency such as the NSA in any capacity. Other agencies, such as the CIA and FBI, do have jobs that do not require a clearance, but depending on the job classification can (and often do) restrict convicted felons from filling those positions.

        Any cabinet member can be impeached by Congress, and the reasons for impeachment include misdemeanor offenses. In other words, Congress can remove the head of the NSA, CIA, FBI, DOJ, etc... by vote. The primary motivation for impeachment is very sensitive to issues of Constitutional violations (see this [infoplease.com] for a reference).

        The false analogy you provide, of "no punishemtn" or "go to jail" is simply not true. Being banned from working a career you have spent your life doing is a punishment, as is being barred from holding jobs or offices in the future, loss of retirement, etc...

        We would probably agree that the punishment may not be severe enough. If you believe that doing nothing is a better answer, you are not thinking very clearly. Exactly why do you think we have numerous historical quotes from people telling you to take action? Like Martin Niemöller

        First they came for the Socialists, and I did not speak out—
        Because I was not a Socialist.

        Then they came for the
        Trade Unionists, and I did not speak out—
        Because I was not a Trade Unionist.

        Then they came for the Jews, and I did not speak out—
        Because I was not a Jew.

        Then they came for me—and there was no one left to speak for me

        or Edmund Burke

        The only thing necessary for the triumph of evil is for good men to do nothing.

        All tyranny needs to gain a foothold is for people of good conscience to remain silent.

    • by Mr. Shotgun (832121) on Wednesday June 04, 2014 @09:49PM (#47168825)

      In general I think that destroying evidence should result in the assumption that they're hiding a worst case scenario

      That is exactly what is supposed to happen, it is called spoilation of evidence [uslegal.com] and is very frowned upon. The penalties are supposed to include inferring that the missing evidence is beneficial to the opposing party and civil and criminal penalties against whomever destroyed the evidence. Though I doubt that will happen in this case.

    • by rtb61 (674572) on Wednesday June 04, 2014 @11:55PM (#47169303) Homepage

      No the logical rule is that purposefully destroying is the crime, neither proving nor disproving the crime related to that evidence and the originating accusation. However, the penalty applied for the destruction of evidence is the crux of the matter, in destroying the evidence of a crime the penalty should be more severe or treated as if it was the maximum possible infringement of the accused crime. The is to motivate people to preserve the evidence so that everyone knows what is going on and government and society can react to the breach on order to take step to repeat it's repetition. In destroying evidence of a crime, you are destroying the ability of society to take corrective measures and thus it affects the whole of society, well beyond those directly affected in the actual breach of law. It will also make it a pretty stupid act to destroy evidence of a lessor crime than the one you were accused of.

      The whole principle of a public trial is so that everyone can know what is going on. That any claims are proven, that actions of government are substantiated, when it does the accusing and when it is the accused. It is not about simply mindlessly punishing people. It is all about what happened, why it happened, what can be done to remediate it and how it can be prevented in future.

      Take for example the worst most heinous possible criminal. Simply executing them based upon a confession is completely and utterly pointless. Knowing exactly what they done, how they done, proof of this to ensure no guilty party goes free whether as a result of a false confession or those associated with the crime. This helps to gain knowledge to reduce the chances of repetition of the crime. Just like keeping the perpetrator alive as a subject of medical research, genetics, psychological and future pharmacological research associated with prevention of that crime, so not just about being able to release them if they are latter proven innocent. Those who commit the worst crimes are the most valuable research tools in order to prevent those crimes that they committed.

    • by qeveren (318805)

      It's called 'spoilation inference', and actually works kinda like that. Not so much an automatic guilty as "the destroyed evidence shows conscience of guilt and therefore strongly supports the opposing side".

    • Well the worst case scenario is that 9/11 was an inside job and Obama is a secret Muslim. Now how do we proceed?
      • by gstoddart (321705)

        Well the worst case scenario is that 9/11 was an inside job and Obama is a secret Muslim. Now how do we proceed?

        Well, there's lots of worst cases.

        Say, Obama is actually the lead of an alien invasion force who plans on harvesting Earthlings as food. That would suck.

        Or that another Bush will get elected to the presidency. That would definitely suck. Someone would have to invade Iraq again.

        Or they'll cancel Marvel's Agents of SHIELD. That would be terrible.

    • by Virtucon (127420)

      Well ultimately that's up to the judge. Destruction of evidence in a case can have certain criminal penalties but most of the time it winds up being at the discretion
      of the judge to sanction or in some cases hold the willing party in contempt. We'd all like to believe that the legal system is fair and balanced but we know differently. For example, In a criminal case where prosecution destroys evidence this usually means the judge will throw the case out. I presume now that the judge is thoroughly pisse

  • by tekrat (242117) on Wednesday June 04, 2014 @08:45PM (#47168563) Homepage Journal

    The NSA could admit that they break the law every day of the week, murder Americans on american soil, steal millions of dollars, destroy companies and even the entire economy, and do you know what will happen?

    Absolutely nothing.

    They believe they are above the law. And heck, most of the legislative branch believes they are above the law. The judicial and executive branches are more than willing to look the other way, so as a result, the NSA gets a free pass to do whatever they want.

    Because.... national security... and boogyman terrorists... and something, something mumble mumble. Whatever the fear flavor of the week is. 1984 was an instruction manual.

    • by mfh (56) on Wednesday June 04, 2014 @08:53PM (#47168599) Journal

      Oligarchies are a funny animal. If you are 99% of the people you do anything like NSA does and you die alone in a prison cell or you're shot point blank. 1% of NSA affiliated members can do any of it and it's "national security".

      • Re: (Score:3, Insightful)

        by Anonymous Coward

        The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.

        If you actually give a damn about the concepts of liberty and equality, you should be prepared to give your life for them. Same as any belief you actually hold. Otherwise, you're just posturing.

        • by fuzzyfuzzyfungus (1223518) on Wednesday June 04, 2014 @11:18PM (#47169181) Journal
          One minor complication, of course: accruing points for authenticity may be virtuous; but it isn't very useful.

          In fact, given that 'security' is the ubiquitous justification of these sorts of programs, most attempts to 'refresh the tree of liberty' will just show up as talking points next time the NSA wants a budget increase, or feels like arguing that the rules against domestic surveillance are compromising its effectiveness.

          Yes, it sounds all Serious and tough-minded to tell the chatterers that if they aren't fighting at the barricades, they are just whiners; but it ignores the fact that resistance can be worse than useless. In the case of 'national security' apparatus, violence that fails to leave them burned to ashes, and their toadies decorating the lamp posts of the capital, simply makes them look more legitimate and necessary. Since that level of force is unlikely to be a DIY project, you will, at very least, need to reach the level of whining where it becomes a group effort, or where alternate means become available.
          • by Camael (1048726)

            Perhaps then, some form of civil disobedience [wikipedia.org] that cannot be misinterpreted in any way as a terrorist threat?

            I confess I have no answers, I'm just impressed enough by your comment to try and throw out a few thoughts. In a way, I think the growing social stigma/approbation is beginning to have some effect- the executive is forced to justify itself, there appears to be more elected officials questioning the NSA and tech companies appear to be less compliant in servicing the secret demands.

            Nowhere near enough

    • by AHuxley (892839)
      Re Absolutely nothing.
      You now know what your courts, political leaders, lawyers, tame press, trusted brands and top academics have fully supported, funded, not wanted to understand or just let happen.
      What can you do as a customer?
      Reconsider just consuming the brands that fooled generations. Go out and find other, better US brands. From that chat app, email account, operating system, hardware, software, telco, crypto course.
      When you buy your next lcd, rethink the brand on the bezel covering that lcd
    • by jd2112 (1535857)

      They believe they are above the law. And heck, most of the legislative branch believes they are above the law. The judicial and executive branches are more than willing to look the other way, so as a result, the NSA gets a free pass to do whatever they want.

      Because.... national security... and boogyman terrorists... and something, something mumble mumble. Whatever the fear flavor of the week is. 1984 was an instruction manual.

      But, the NSA has one additional 'Because'.
      Because.. They have dirt on... Everyone and anyone who might act against them.

    • by Virtucon (127420)

      The NSA could admit that they break the law every day of the week, murder Americans on american soil, steal millions of dollars, destroy companies and even the entire economy, and do you know what will happen?

      Absolutely nothing.

      A bit over the top but most clandestine operations carried out by our government usually wind up the same way. Anybody remember "Iran-Contra" [infoplease.com], "Bay of Pigs" [wikipedia.org] or "Guatemala?" [wikipedia.org] Other than the Watergate conspirators, nobody ever really did hard time for any of those.

      They believe they are above the law. And heck, most of the legislative branch believes they are above the law. The judicial and executive branches are more than willing to look the other way, so as a result, the NSA gets a free pass to do whatever they want.

      Because.... national security... and boogyman terrorists... and something, something mumble mumble. Whatever the fear flavor of the week is. 1984 was an instruction manual.

      The legislative branch has been a puppet of both political parties as long as anybody can remember. We'd like to think that judges are impartial and only interpret the evidence and the laws and administer decisions in an unbiased way. To a large

  • by jmd (14060) on Wednesday June 04, 2014 @08:50PM (#47168575)

    Things are going to slide, slide in all directions
    Won't be nothing
    Nothing you can measure anymore
    The blizzard, the blizzard of the world
    has crossed the threshold
    and it has overturned
    the order of the soul - Leonard Cohen "The Future"

    These are not isolated events anymore. Everything is being turned upside down.

  • Frightening (Score:5, Interesting)

    by pitchpipe (708843) on Wednesday June 04, 2014 @08:50PM (#47168577)
    To all of you government surveillance apologists: doesn't it really frighten you that these guys routinely don't follow the law and get away with it? It scares the shit out of me. These people have the power to destroy you and everything/everyone that you love, and they seem to have nothing guiding them but their gut feel. How do you know they won't mistake your kid for a terrorist? Or bust down your door in the middle of the night tossing a flash-bang into your kids crib?

    These fucking people are out of control and need some serious jail time.

  • Watch THIS. [pbs.org]
    It blew my friggen mind. Michael Hayden is an evil motherfucker.

  • If you want to understand how our country came to this, it is quite well summed up in 260 or so pages in a book called "The Authoritarians" by Bob Altemeyer.

    Download the book here: http://home.cc.umanitoba.ca/~altemey/

    This is written from extensive research into right wing authoritarian personality (right wing is not a political aspect here). If you want to know why the entire globe seems to be following this destructive (destructive from a majority point of view) read this. It becomes easy to see why polit

  • the EFF gets a charitable contribution from me every year
    / As does the Alzheimer's foundation
    // and Helen Woodward
    /// the rest of em can fark off
  • by Karmashock (2415832) on Wednesday June 04, 2014 @10:58PM (#47169111)

    Tell you what Federal Government... if you consider this a defense against destroying evidence, then certainly you'd be okay with lowly citizens that are supposed to be EQUAL to you before the law to use the same defense when you bring us to trial...

    Right? Or are we the only ones that have to follow the rules?

  • by cpm99352 (939350) on Thursday June 05, 2014 @12:49AM (#47169469)
    I used to financially support the NRA, under the assumption that they defended the 2nd amendment. A while age I realized that was not actually correct,

    The EFF is the best example of an entity that defends *all* amendments. I now financially support them, every month. When NPR comes begging for money I'm happily able to refuse, secure in the knowledge that EFF is far more effective in their use of funds than NPR when it comes to presevring the Constitution.

    There are a ton of relatively affluent people here on Slashdot. It certainly wouldn't hurt you to allocate a small amount of money to EFF annually, and we know their results.
    • I donate every month as well. You've got to feed our troops. :)
    • by Anonymous Coward

      "I used to financially support the NRA, under the assumption that they defended the 2nd amendment. A while age I realized that was not actually correct"

      Um, no... the NRA is still the only organization that FIGHTS for the 2nd amendment. Gun Owners of America IMHO is a fig leaf for people who want to claim they care about the 2nd while being ineffectual in doing it. I personally wish there was an NRA-equivalent (that had members of the House and Senate quaking in their boots) for EACH of the 10 amendments t

      • Re: (Score:3, Interesting)

        by jelIomizer (3670957)

        Um, no... the NRA is still the only organization that FIGHTS for the 2nd amendment.

        They don't do a very good job of it. In fact, they seem to do a very good just of 'compromising' away rights. For instance, I believe the NRA said that it doesn't have problems with restricting people with criminal records, or people with mental health issues.

        If you take the position that the 2nd amendment means that modern weaponry is fine (Which I do.), then you can't arbitrarily decide that it doesn't protect certain weaponry that you find scary. Yet, many types of guns are banned, and certain people are

        • by dwpro (520418) <dwpro777@yGINSBERGahoo.com minus poet> on Thursday June 05, 2014 @07:48AM (#47170655)

          I am a gun owner and supporter of the 2nd amendment, but I believe it's a fair reading of the 2nd amendment that the "well regulated militia" can be interpreted to not include folks who can be judged incompetent to own a weapon, though there should be due process on this decision. Even if such a provision did not exist, I would imagine other provisions would justify limited gun regulation. if the govt can take away your children for incompetence, surely they can take away your weapons. I agree with you on the modern weaponry question, however.

        • So you would support allowing psychotic people to have guns? I support the 2nd amendment, but this just seems crazy.
  • the bad guys are from middle east, they are making viruses....
  • by eddy (18759) on Thursday June 05, 2014 @05:02AM (#47170127) Homepage Journal

    Here's a new sneaky approach, less destructive but so far effective: U.S. Marshals Seize Cops’ Spying Records to Keep Them From the ACLU [wired.com]

  • We already know, thanks to Snowden, that the NSA commits billions of felony wiretaps as a matter of routine. They have no regard at all for the law, why would they comply with their duty to preserve evidence in an ongoing investigation?

    -jcr

  • Backups. There's usually a backup somewhere that still contains the data.

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