Feds Ponder Risk in Preserving Spying Data

     (CN) - Preserving all data related to the government's domestic-surveillance programs would create severe technical and legal difficulties, and could endanger national security, the government said today.
     The filing comes in answer to an emergency application that the Electronic Frontier Foundation filed Thursday, asking a federal judge in San Francisco to again order that the National Security Agency must cease destroying records of its spying on U.S. citizens.
     "In communications with the government this week, EFF was surprised to learn that the government has been continuing to destroy evidence relating to the mass interception of Internet communications it is conducting under section 702 of the FISA Amendments Act even though the court explicitly ordered it to stop in March," EFF Legal Director Cindy Cohn said in a statement. "Specifically, the government is destroying content gathered through tapping into the fiber optic cables of AT&T."
     U.S. District Judge Jeffrey White quickly ordered the government not to destroy any more materials and to file a brief responding to the EFF's charges today.
     This brief, filed at 1 p.m. Pacific Time, said "it would be a gross distortion of the government's preservation obligations to require it to preserve all Section 702 material for purposes of this litigation."
     The NSA claims that its databases are programmed to automatically purge raw data after the two- or five-year certification authorizing its collection has expired.
     "Halting these purges and age-offs to preserve all Section 702 material, as we understand the court to have ordered, would require significant technical changes to these databases and systems and would have the effect of forcing NSA into non-compliance with FISC-approved minimization procedures, thus placing the entire program in legal jeopardy," the 19-page brief says.
     The NSA also claims that demanding such substantial changes to the databases may require the agency to shut them down altogether.
     "Such a shutdown would suspend acquisition of communications pursuant to Section 702 and analyst access to communications acquired under Section 702. NSA would lose access to what would be otherwise lawfully collected signals intelligence information on foreign intelligence targets that are vital to the performance of NSA's foreign intelligence mission," the brief states. "Section 702 is the most significant tool in NSA's arsenal for detecting, identifying, and disrupting terrorist threats to the United States and around the world. The impact of a shutdown of the databases and systems that contain Section 702 information cannot be overstated."
     The NSA still disagrees with Carolyn Jewel and the other plaintiffs over whether the complaint challenges NSA activity under Section 702, which authorizes targeted surveillance of non-U.S. citizens overseas, and is not a bulk collection program.
     The brief also notes that the emergency motion requests the government to halt the very procedures put in place to ensure the NSA does not keep collected data forever, procedures intended to protect citizens' privacy.
     "An order requiring the preservation of all Section 702 material would, ironically, abrogate the very protections put in place by the FISC to ensure that the NSA's upstream collection complies with the Fourth Amendment, all so that plaintiffs can attempt to show that it did not," the brief concludes.
     A hearing on plaintiffs' emergency motion is scheduled for 2 p.m. Pacific Time.