U.S. Government Tried to Alter Transcript in NSA Surveillance Case
SAN FRANCISCO (CN) - The federal government in June asked to secretly remove information from a high-profile NSA spying case, prompting outrage from privacy experts and attorneys, according to unsealed court documents.
The documents recently released by the Electronic Frontier Foundation detail a government request to remove information from the transcript of a June 6 hearing in Jewel v. NSA, a case fighting the NSA's surveillance of U.S. Internet and phone records.
The documents, available on EFF's website , include a government letter to the Northern District of California asking for permission to change the transcript and a judge's final ruling to make the secret proceedings public.
A week after the June 6 hearing, the government said the NSA was worried that classified information may have been revealed in court.
"We request that an advance copy of the transcript be provided ... to make a determination as to whether the transcript in fact contains classified information," government attorney Marcia Berman wrote in a letter to U.S. District Judge Jeffrey White.
"If it does we would then request an opportunity to remove any classified material by revising the transcript before it is provided to any of the parties or made publicly available."
The government wanted to make these changes privately, before the plaintiffs or plaintiffs' attorneys with the Electronic Frontier Foundation could look at the transcripts, court documents show.
"That's an improper request," said EFF Legal Fellow Andrew Crocker. "This is a transcript of a hearing that was held in open court. There was press there, our lawyers were there, the public was there. It was a serious First Amendment concern to make that kind of request."
White decided the plaintiffs had a right to know about the government's request and alerted EFF. The organization responded on June 20, contesting the government's proposal on First Amendment grounds.
"The Supreme Court [has] repeatedly rejected attempts to prohibit or punish the publication of confidential material when that material was inadvertently disclosed to the public," the EFF said in a statement.
The privacy advocates also argued that the government should not be allowed to "remove" information without at least marking where things have been changed, a process known as redaction.
In mid-July White granted the government 2½ weeks to review the transcript and to make a case for what, if any, information should be removed.
On July 28, after going over the papers, the government said it found that no classified information had accidentally been leaked.
Crocker said he could not speculate as to what specific information the government was concerned about. The June hearing was about whether the NSA could destroy information it collected related to the Jewel case.
The next week the judge granted EFF's motion to unseal the records, after which the group posted all of the information, including the disputed transcript, on its website.
"The public has the right to know what was said in these briefs," Crocker said. "Part of our goal as an organization is to bring transparency to these issues and the way these courts operate."
Jewel v. NSA was filed in 2008, long before whistleblower Edward Snowden directed the world's attention to the government agency's spying practices. It stems from a 2006 revelation by another whistleblower, former AT&T telecommunications technician Mark Klein, who showed that AT&T was routing copies of emails, Web browsing data and other Internet information to a secret NSA-controlled location in San Francisco.
The class action suit filed by EFF on behalf of AT&T customers aims to end mass surveillance techniques such as collecting Internet content and phone records.
A breakthrough for EFF came a year ago when the court rejected the government's attempt to invoke a "state secrets" privilege that could have gotten the case dismissed. White ruled that the case should be litigated under the Foreign Intelligence Surveillance Act, which allows people who have been spied on electronically to sue, the EFF said.
But the case was sidetracked in March, when EFF discovered that the government may have been illegally destroying surveillance records related to the Jewel case, Crocker said. EFF filed an emergency motion to force the government to preserve these records, but the government argued it would be too burdensome and could affect national security .
The NSA's databases are programmed to automatically delete raw data after a certain time, the government said. Significantly changing the databases could force a large-scale shutdown that would affect the NSA's other intelligence operations.
On June 6 White sided with the government, allowing the destruction of records to continue.
Crocker said the EFF hopes to prove that the government destroyed records in the Jewel case, which could bolster the plaintiffs' legal argument. Meanwhile, the organization is preparing to argue that government surveillance violates the Fourth Amendment.
"We've seen a lot of movement in the last year or so," Crocker said. "Polls have shown that people do care quite a bit about this and are on our side."