A digital rights group alleges that the federal government flouted a court order in place to protect evidence of the NSA’s electronic surveillance relevant to ongoing litigation.
The Electronic Frontier Foundation filed a brief on Friday telling a federal judge that there is no doubt that the federal government knowingly destroyed years of evidence of electronic surveillance conducted by the National Security Agency — despite a court injunction being in place to order the evidence’s protection.
The brief came in response to the case Jewel v. NSA, in which the digital rights group argues that the federal government used AT&T to illegally surveil on the utility’s customers. This is based on alleged eavesdropping later confirmed to be part of the NSA’s PRISM Program, a top-secret surveillance program that amounted to a wholesale attempt to tap into the upstream fiber optics feeds of telecommunication utilities, including AT&T.
The PRISM Program was geared toward finding information on electronic communications related to national security. The EFF seeks to prove that the government was knowingly conducting unconstitutional searches against American citizens by looking at their communication data without an explicit warrant. Among the evidence the EFF has presented to bolster its case was the testimony of former AT&T technician Mark Klein, who provided documents showing how AT&T routed Internet traffic to a San Francisco-based room that was controlled by the NSA.
The brief requests that the U.S. District Court for the Northern District of California, Oakland Division, infer that the destroyed evidence could have been used to demonstrate the plaintiffs’ argument.
“The Court can and should sanction the government for its spoliation of evidence,” read the brief. “It is firmly established in the Ninth Circuit that ‘[a] federal trial court has the inherent discretionary power to make appropriate evidentiary rulings in response to the destruction or spoliation of certain evidence,’ which includes the power ‘to permit a jury to draw an adverse inference from the destruction or spoliation against the party or witness responsible for that behavior.’”
In question is the federal government’s defiance of federal court orders — the latest of which was delivered in March — directing the federal government to preserve all records that may be pertinent to ongoing litigation. Jewel v. NSA centers around the government’s mass collection of Internet and telephone content and Internet and telephone metadata dating back to 2001.
The federal government contends that a Foreign Intelligence Surveillance Court ruling obligated the government to destroy any stored surveillance evidence five years after it was collected. The government asserts that its responsibility toward private protection outweighs the need for full disclosure. Furthermore, the government — without the consent of the court and without consultation with EFF or the other plaintiffs in the case — narrowed the scope of the case from the whole of the NSA surveillance program to just the portions conducted solely on the basis of executive authority. Based on the government’s own disclosures, communication content — including phone conversations and email messages — from 2007 to 2012, telephone records from 2006 to 2009, and Internet metadata from 2004 to 2011 were all deleted.
“Regular civil litigants would face severe sanctions if they so obviously destroyed relevant evidence,” said EFF Legal Director Cindy Cohn. “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.”
Should the court choose not to infer that the destroyed evidence bears relevance in Jewel v. NSA, the case can be dismissed for lack of tangible evidence. Originally filed in 2008, the federal government has moved two times to have the case dismissed. In 2009, the Obama administration claimed that disclosure of the wiretapping program would require the government to disclose “state secrets” immune from litigation. The court ruled that the case should be dismissed on standing grounds, but the dismissal was overruled by the U.S. Court of Appeals for the Ninth Circuit.
In 2012, the administration renewed its state secrets argument for dismissal based on the fact that the EFF sought to have the court rule that the Foreign Intelligence Surveillance Act was applicable in this case instead of state secrets privilege. The court ruled that some of the EFF’s statutory claims were invalid, but that the claims of violations of the First and Fourth Amendments could still be heard.
“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,” continued Cohn. “Nevertheless, we are simply asking the court to ensure that we are not harmed by the government’s now-admitted destruction of this evidence.”