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Judge orders feds to preserve surveillance data

A federal judge affirmed Thursday that the U.S. Government must preserve records of National Security Agency surveillance relevant to ongoing lawsuits challenging the legality of the practice, including data gathered under a controversial provision allowing harvesting of foreigners' U.S.-based e-mail and social media accounts.

Acting on a request from the Electronic Froniter Foundation, U.S. District Court Judge Jeffrey White said evidence about the government's use of Section 702 is relevant to the case and must be preserved.

"Defendants are ordered not to destroy any documents that may be relevant to the claims at issue in this action, including the Section 702 materials," White wrote in his order (posted here).

The judge issued his order Thursday afternoon, just minutes after EFF told the court that government lawyers had informed lawyers for some of those challenging the surveillance that destruction of the web evidence was continuing even though the erasure of so-called telephone metadata was being preserved indefinitely.

"In communications with the government this week, plaintiffs learned to their surprise that the government is continuing to destroy evidence relating to the mass interception of Internet communications it is conducting under section 702 of the Foreign Intelligence Surveillance Act. This would include evidence relating to its use of 'splitters' to conduct bulk interceptions of the content of Internet communications from the Internet 'backbone'network of AT&T," EFF lawyers wrote in a motion (posted here). "Once again, the government has apparently secretly and unilaterally reinterpreted its obligations under the Court’s evidence preservation orders, without notice to the Court or to plaintiffs, and has determined that it need not engage in preservation of relevant evidence."

EFF lawyers asked for a hearing on the issue Friday and requested a temporary restraining order blocking destruction of the so-called 702 evidence. White, who sits in Oakland, did not immediately grant the request for a hearing. However, he did order the government to submit a written explanation of its position by noon (PT) on Friday.

A Justice Department spokesman declined to comment for this post. However, department lawyers responded to the court Thursday evening, asking it to stay the new preservation order and warning that saving all the web data currently stored under the 702 provision could mean halting such surveillance altogether.

"Undersigned counsel have been advised by the National Security Agency that compliance with the June 5, 2014 Order would cause severe operational consequences for the National Security Agency (NSA’s) national security mission, including the possible suspension of the Section 702 program and potential loss of access to lawfully collected signals intelligence information on foreign intelligence targets that is vital to NSA’s foreign intelligence mission," the government attorneys wrote in their filing (posted here). The response argues that the complexity of "technical and operational issues" involved in preserving the web data is "significantly greater than with preservation of Section 215 telephony metadata."

Lawyers for the NSA said they would explain the operational problems Friday in greater detail.

EFF responded with yet another filing of its own (posted here), arguing that since March 10 the government has been on notice of the need to preserve such material, so there can be no emergency now requiring the suspension of that obligation.

"It is not credible that, as the government contends, simply refusing to destroy during the next 18 hours the communications it has intercepted will cause 'the possible suspension of the Section 702 program....'How can the preservation of these intercepted communications cause a 'loss of access to lawfully collected signals intelligence information'?" the EFF filing asks. "That information will remain accessible even though it is being preserved."

The U.S. Government's use of the 702 authority has prompted criticism overseas because it allows broad collection of foreigners' communications without specific court approval. Critics have also noted that it has a domestic privacy impact because communications by and about U.S. citizens are often swept up in the broad surveillance of foreigners' accounts.

The U.S. government says it generally removes the names of U.S. citizens and permanent residents from reports on such surveillance before those reports are distributed. However, the names are maintained and under some circrumstances disclosed. There are also concerns that officials can use the products of 702 surveillance to conduct searches for data about Americans and may even use 702 to conduct "back-door" surveillance on U.S. nationals when officials lack probable cause for a warrant.

UPDATE (Thursday, 11:14 P.M.): This post has been updated with the government's warning about possible suspension of the 702 program and the response to that warning.

CORRECTION (Friday, 3:02 P.M.) Earlier versions of this post misstated the city where Judge White sits.