U.S. Destroyed Key Spy Records, EFF Claims

     (CN) – The government violated court orders to preserve records showing that the National Security Agency illegally spied on ordinary Americans, a digital watchdog group says.
     In a brief filed Friday in federal court in Oakland, Calif., the Electronic Frontier Foundation insists there is “now no doubt” that the government destroyed records it collected on its own citizens, including the plaintiffs in a 2008 lawsuit challenging the NSA’s Terrorist Surveillance Program.
     Lead plaintiff Carolyn Jewel, represented by the EFF, accused the agency of misusing the program to eavesdrop on millions of emails and phone calls in violation of the Fourth Amendment.
     The EFF says the government has since admitted to having destroyed years’ worth of Internet and phone records.
     “The government’s own declarations make clear that the government has destroyed three years of the telephone records it seized between 2006 and 2009; five years of the content it seized between 2007 and 2012; and seven years of the Internet records it seized between 2004 and 2011, when it claims to have ended those seizures,” the group claims in its brief.
     “The government destroyed this evidence (by its own account) because it determined that it was not pertinent to this case, a conclusion it reached only by ignoring the parameters of plaintiffs’ complaint and substituting its own, narrower view,” the EFF wrote. (Parentheses in original.)
     “Despite the plain language of the complaint, the government assumed that plaintiffs were not challenging the government’s ongoing mass surveillance. Instead, the government assumed that plaintiffs were challenging only the government’s past behavior, when it conducted mass surveillance based solely on a claim of executive authority under Article II of the Constitution.” (Emphasis in original.)
     But the EFF says the plaintiffs “have very publicly sought” — since at least 2006 — a court declaration that the NSA’s domestic surveillance program is unconstitutional.
     “By destroying this evidence, the government has hindered plaintiffs’ ability to prove with governmental evidence that their individual communications and records were collected as part of the mass surveillance,” the brief states.
     The group adds that the government’s “tortured interpretation” of the allegations should have been put to rest in 2010, when it clearly explained its arguments in a 9th Circuit reply brief.
     “In spite of plaintiffs’ explanation, and without seeking any further clarification or approval, the government continued to destroy records of its mass surveillance,” the EFF wrote. “This is spoliation of evidence.”
     As a result, the EFF wants the court to infer that the destroyed records included the plaintiffs’ phone and internet records.
     “The court has issued a number of preservation orders over the years, but the government decided — without consent from the judge or even informing EFF — that those orders simply don’t apply,” EFF Legal Director Cindy Cohn said in a statement. “Regular civil litigants would face severe sanctions if they so obviously destroyed relevant evidence. 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.”
     In the wake of former NSA contractor Edward Snowden’s leaks to the media about the mass surveillance programs, the NSA has disclosed previously classified declarations about those programs that are heavily redacted.
     The government has argued that Jewel’s claims should be dismissed under the state-secrets privilege.
     Her case is before a federal judge in Oakland after the 9th Circuit ruled that she and her co-plaintiffs had standing to challenge the government’s alleged “communications dragnet of ordinary American citizens.”

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