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Judge: NSA doesn’t have to keep all data as part of key surveillance lawsuit

56 points by sinak 12y ago

revelation 12y ago
The NSA program is too big for due process. Yes, having to preserve all that stuff is a big burden when you already have do a 72h rollover given the immense amounts of data being collected. It's as if the people designing this didn't exactly account for the possibility of judicial inquiry.
- higherpurpose 12y ago
  Or they did it on purpose, like how they're saying they can't offer e-mails of NSA employees because they don't have the proper search mechanism for it. http://www.rawstory.com/rs/2013/07/23/nsa-rejects-reporters-information-request-because-no-central-method-to-search-its-emails/ http://www.rawstory.com/rs/2013/07/23/nsa-rejects-reporters-... You'd think that after the Snowden leaks they'd do everything in their power to log everything, so it doesn't happen again and/or they know exactly what the leaker took next time. But no, they prefer to be kept in the dark by what the people in their own agency are doing. And then they keep claiming to Congress and the population that they have "strict oversight" (by which they mean no oversight, just like with the meaning of the word "relevant" or "truthful/least untruthful"). The whole thing is a farce.
- mpyne 12y ago
  Do civilian webmasters or Dev/Ops personnel typically retain all the data they transmit or receive along with the metadata as well? That's what I'm still confused about here; why couldn't the court order the NSA to retain some set of metadata on the 702 programs they are running? Why does this entire argument revolve around the binary decision of all possibly relevant data and metadata or none of it? Even if NSA has to filter heaps and heaps of metadata (which is the "data" for their system), they could easily retain summary information of what data was filtered, whether it's filtered by subnet, identifier, etc. As made clear in the past year by both NSA and EFF, metadata can reveal a lot about the activities of a person (or in this case, an Agency). I think it would make more sense for the EFF to push for specific items to be retained by NSA for civil discovery instead of "all NSA intake via 702".
  - anigbrowl 12y ago
    Because Rule 26 of the Federal Rules for Civil Procedure, which governs discovery, specifically rule 26(b)(1) is quite broad in scope, and even sanitizing it of non-privileged information (most likely classified data in this context) could allow outside parties to make structural inferences that would compromise intelligence gathering activities. As a cheesy example, suppose I have files that note the existence of Alice, Bob, Carol, and Donald, and suppose furthermore that I suspect Carol of being a spy. You object to my surveillance activities and ask discovery of same. My evidence that Carol is a spy may be obviously privileged, but if I give you my files on Alice, Bob, and Donald it's easy to guess that I view Carol as somehow different from the others. Now, I could in theory furnish minimal information on Carol that would not clearly distinguish her from the other three, but that puts the Executive Branch in the awkward position of making judgments about what degree of truth it is appropriate to provide, which is the sort of thing that is properly the province of the Judicial Branch. So the Executive Branch argues that compliance would necessarily mean an abrogation of Judicial Branch functions if it is not to impair he Executive Branch's lawful security function, and now you've got a separation-of-powers problem. What happens in many cases and may happen in this one, is that if there isn't a clear legal principle which guides the balance of the interests the Court may review the material in question and decide exactly what should be handed over and what can be retained, which decision might then be appealed to higher court by one party or the other.
    - mpyne 12y ago
      Good points, all. It would probably be easier to argue about particulars if EFF had suggested any (though maybe they've made such feelers already in private).
- anigbrowl 12y ago
  It's not the preservation of the data that's the problem, it's the collision of civil procedure discovery rules with natioanl security issues: The EFF had wanted the NSA to preserve all data collection in bulk, regardless of what legal authority it was collected under — that way, the government would be forced to hand it over as part of the discovery process as the case moves forward. In general, disputants in civil litigation have to provide complete transparency. If I sue you over a business matter, for example, you have to provide everything that you might have on record in relation to that business matter, not just those documents which are responsive to my initial complaint. My lawyers will then pore over those records and file an amended complaint that makes maximum use of your information against you. In turn, your lawyers will almost certainly counter-sue me and make a similar request for my documents on the matter, to find out whether I know something that you don't. This is completely different from a criminal warrant, where the state has to articulate in advance waht it's looking for (although such requests can be fairly broad). The reason it works this way is because civil itigants are ofen at a severe disadvantage. If I have a bad experience with BigCorp and sue, I don't know in advance what specific documents or records to request for evidence, because I'm not privy to BigCorp's inner workings, have no insight into which BigCorp employees or managers were involved with the situation or what actions they took, and so it would be very easy for BigCorp to give me the runaround - an experience most people are familiar with if they've ever had a problem with a bank or received poor customer service from a large organization. So the civil discovery process is designed to correct that imbalance by giving a plaintiff's attorney access to all the same information as the defendant's attorneys, and allowing plaintiffs to amend their complaint for greater specificity after the discovery process. (Of course this system can be abused too; some defendants will deliberately swamp a plaintiff with far more information than actually requested, in order to leave the plaintiff's attorney's looking for a needle in a haystack. Attorneys usually contract out that research task and after the verdict is passed down there is often further litigation about the appropriate assignment of expenses.) Now, of course the discover process can involve a defenedant having to hand over a great deal of information that is not relevant to the actual dispute, with negative implications for privacy and business confidentiality. But since attorneys are all officers of the court, they are bound as part of their license not to make public any information they receive which is not responsive to the matter being litigated. For example, suppose a plaintiff's attorney discovers that the CEO of BigCorp is having an extramarital affair, but that fact isn't germane to the litigation. The plaintiff's attorney would be subject to severe sanctions, maybe even disbarment, for leaking or threatening to reveal that information at trial in hopes of causing embarrassment or jury bias towards BigCorp. So here the EFF is saying (as is normal) 'give me everything you've got, our lawyers will sort through it and cherry pick it for relevance.' The NSA is arguing in turn that it can't do so because the EFF's legal team doesn't have the relevant security clearances, and that the public's security interest eclipses the public's transparency interest - which may well be true, in Constitutional terms. A lto of people liek to argue that the Constitution, or more specifically the Bill of Rights, exists to protect the people from government tyrrany, but the BoR is only part of the constitution and doesn't automatically trump other parts. The Constitution also grants a large number of powers to government and the legal authority derived from that stands on an equal footing with the public's interests that are articulated in the Bill of Rights.
sigil 12y ago
So, "collect it all" ... unless you're in court, in which case it's okay to delete key evidence because it's "hard" to keep evidence? Snark aside, this part made me curious: the NSA may have to shut down all systems and databases that contain Section 702 information in order to preserve [it] Is this really just a technical problem: a system design that failed to anticipate how legal proceedings would / could interact with the minimization feature? (Of course, they probably never expected the former.)
- jjoonathan 12y ago
  > Snark aside Is it really snark? Cops pull the "missing evidence" stunt all the time and get away with it, why should we expect different from the NSA (now that they're playing at being a law enforcement agency)? > Is this really just a technical problem I wouldn't go so far as to say this happened by design, but at the end of the day does it really matter? Opportunistic evil is still evil, and this opportunity dangles the temptation of opportunistic evil in front of a group of people that don't exactly have a sterling track record of self-restraint in such matters. EDIT (re:downvoters): I realize that the court order has more to do with the ongoing court case than ongoing retention policy. That doesn't make ongoing retention policy irrelevant.
- biot 12y ago
  It's a bit like the government using a whiteboard to track terrorists and the court has asked them to preserve what's on the whiteboard. The government considers this too burdensome because if they can't erase the whiteboard they have to stop all tracking of terrorists. Unfortunately, scientists are still working on the ability to copy information. Perhaps some day they'll crack it.
- ccrush 12y ago
  Doesn't it make sense that the court tell the government to not only shut down the service to retrieve the data, but also keep it offline until they have made modifications to allow the court to inspect it? It would only be reasonable that such programs be, at a minimum, prepared for court oversight. If preservation of evidence cannot be guaranteed then the program should not be used to enforce the law. I find it particularly troubling that this system was not only never envisioned to be used to pursue a warrant from the courts, but also designed to make it impossible to do so by making the act of proving the legality of the evidence collected by making a chain-of-custody analysis deliberately conflict with national security interests. I believe this is clearly analogous to a defensive weapon which is designed to kill enemies of the country, but although it regularly also kills civilians the government refuses to allow it to be inspected (and potentially fixed) using the excuse that turning it off would harm even more civilians. I unequivocally support the defence and enforcement of our national security, political and economic interests. However, I find it entirely unreasonable to sacrifice the freedoms from which our nation sprung, political and economic systems included, in order to preserve it.
afternooner 12y ago
Oceania here we come.
Hello71 12y ago
so... the government can force carpathia to spend thousands of dollars a day, but can't manage to keep its own data intact?

56 points by sinak 12y ago

The NSA program is too big for due process. Yes, having to preserve all that stuff is a big burden when you already have do a 72h rollover given the immense amounts of data being collected. It's as if the people designing this didn't exactly account for the possibility of judicial inquiry.

higherpurpose 12y ago
Or they did it on purpose, like how they're saying they can't offer e-mails of NSA employees because they don't have the proper search mechanism for it. http://www.rawstory.com/rs/2013/07/23/nsa-rejects-reporters-information-request-because-no-central-method-to-search-its-emails/ http://www.rawstory.com/rs/2013/07/23/nsa-rejects-reporters-... You'd think that after the Snowden leaks they'd do everything in their power to log everything, so it doesn't happen again and/or they know exactly what the leaker took next time. But no, they prefer to be kept in the dark by what the people in their own agency are doing. And then they keep claiming to Congress and the population that they have "strict oversight" (by which they mean no oversight, just like with the meaning of the word "relevant" or "truthful/least untruthful"). The whole thing is a farce.
mpyne 12y ago
Do civilian webmasters or Dev/Ops personnel typically retain all the data they transmit or receive along with the metadata as well? That's what I'm still confused about here; why couldn't the court order the NSA to retain some set of metadata on the 702 programs they are running? Why does this entire argument revolve around the binary decision of all possibly relevant data and metadata or none of it? Even if NSA has to filter heaps and heaps of metadata (which is the "data" for their system), they could easily retain summary information of what data was filtered, whether it's filtered by subnet, identifier, etc. As made clear in the past year by both NSA and EFF, metadata can reveal a lot about the activities of a person (or in this case, an Agency). I think it would make more sense for the EFF to push for specific items to be retained by NSA for civil discovery instead of "all NSA intake via 702".
- anigbrowl 12y ago
  Because Rule 26 of the Federal Rules for Civil Procedure, which governs discovery, specifically rule 26(b)(1) is quite broad in scope, and even sanitizing it of non-privileged information (most likely classified data in this context) could allow outside parties to make structural inferences that would compromise intelligence gathering activities. As a cheesy example, suppose I have files that note the existence of Alice, Bob, Carol, and Donald, and suppose furthermore that I suspect Carol of being a spy. You object to my surveillance activities and ask discovery of same. My evidence that Carol is a spy may be obviously privileged, but if I give you my files on Alice, Bob, and Donald it's easy to guess that I view Carol as somehow different from the others. Now, I could in theory furnish minimal information on Carol that would not clearly distinguish her from the other three, but that puts the Executive Branch in the awkward position of making judgments about what degree of truth it is appropriate to provide, which is the sort of thing that is properly the province of the Judicial Branch. So the Executive Branch argues that compliance would necessarily mean an abrogation of Judicial Branch functions if it is not to impair he Executive Branch's lawful security function, and now you've got a separation-of-powers problem. What happens in many cases and may happen in this one, is that if there isn't a clear legal principle which guides the balance of the interests the Court may review the material in question and decide exactly what should be handed over and what can be retained, which decision might then be appealed to higher court by one party or the other.
  - mpyne 12y ago
    Good points, all. It would probably be easier to argue about particulars if EFF had suggested any (though maybe they've made such feelers already in private).
anigbrowl 12y ago
It's not the preservation of the data that's the problem, it's the collision of civil procedure discovery rules with natioanl security issues: The EFF had wanted the NSA to preserve all data collection in bulk, regardless of what legal authority it was collected under — that way, the government would be forced to hand it over as part of the discovery process as the case moves forward. In general, disputants in civil litigation have to provide complete transparency. If I sue you over a business matter, for example, you have to provide everything that you might have on record in relation to that business matter, not just those documents which are responsive to my initial complaint. My lawyers will then pore over those records and file an amended complaint that makes maximum use of your information against you. In turn, your lawyers will almost certainly counter-sue me and make a similar request for my documents on the matter, to find out whether I know something that you don't. This is completely different from a criminal warrant, where the state has to articulate in advance waht it's looking for (although such requests can be fairly broad). The reason it works this way is because civil itigants are ofen at a severe disadvantage. If I have a bad experience with BigCorp and sue, I don't know in advance what specific documents or records to request for evidence, because I'm not privy to BigCorp's inner workings, have no insight into which BigCorp employees or managers were involved with the situation or what actions they took, and so it would be very easy for BigCorp to give me the runaround - an experience most people are familiar with if they've ever had a problem with a bank or received poor customer service from a large organization. So the civil discovery process is designed to correct that imbalance by giving a plaintiff's attorney access to all the same information as the defendant's attorneys, and allowing plaintiffs to amend their complaint for greater specificity after the discovery process. (Of course this system can be abused too; some defendants will deliberately swamp a plaintiff with far more information than actually requested, in order to leave the plaintiff's attorney's looking for a needle in a haystack. Attorneys usually contract out that research task and after the verdict is passed down there is often further litigation about the appropriate assignment of expenses.) Now, of course the discover process can involve a defenedant having to hand over a great deal of information that is not relevant to the actual dispute, with negative implications for privacy and business confidentiality. But since attorneys are all officers of the court, they are bound as part of their license not to make public any information they receive which is not responsive to the matter being litigated. For example, suppose a plaintiff's attorney discovers that the CEO of BigCorp is having an extramarital affair, but that fact isn't germane to the litigation. The plaintiff's attorney would be subject to severe sanctions, maybe even disbarment, for leaking or threatening to reveal that information at trial in hopes of causing embarrassment or jury bias towards BigCorp. So here the EFF is saying (as is normal) 'give me everything you've got, our lawyers will sort through it and cherry pick it for relevance.' The NSA is arguing in turn that it can't do so because the EFF's legal team doesn't have the relevant security clearances, and that the public's security interest eclipses the public's transparency interest - which may well be true, in Constitutional terms. A lto of people liek to argue that the Constitution, or more specifically the Bill of Rights, exists to protect the people from government tyrrany, but the BoR is only part of the constitution and doesn't automatically trump other parts. The Constitution also grants a large number of powers to government and the legal authority derived from that stands on an equal footing with the public's interests that are articulated in the Bill of Rights.

sigil 12y ago

So, "collect it all" ... unless you're in court, in which case it's okay to delete key evidence because it's "hard" to keep evidence? Snark aside, this part made me curious: the NSA may have to shut down all systems and databases that contain Section 702 information in order to preserve [it] Is this really just a technical problem: a system design that failed to anticipate how legal proceedings would / could interact with the minimization feature? (Of course, they probably never expected the former.)

jjoonathan 12y ago
> Snark aside Is it really snark? Cops pull the "missing evidence" stunt all the time and get away with it, why should we expect different from the NSA (now that they're playing at being a law enforcement agency)? > Is this really just a technical problem I wouldn't go so far as to say this happened by design, but at the end of the day does it really matter? Opportunistic evil is still evil, and this opportunity dangles the temptation of opportunistic evil in front of a group of people that don't exactly have a sterling track record of self-restraint in such matters. EDIT (re:downvoters): I realize that the court order has more to do with the ongoing court case than ongoing retention policy. That doesn't make ongoing retention policy irrelevant.
biot 12y ago
It's a bit like the government using a whiteboard to track terrorists and the court has asked them to preserve what's on the whiteboard. The government considers this too burdensome because if they can't erase the whiteboard they have to stop all tracking of terrorists. Unfortunately, scientists are still working on the ability to copy information. Perhaps some day they'll crack it.
ccrush 12y ago
Doesn't it make sense that the court tell the government to not only shut down the service to retrieve the data, but also keep it offline until they have made modifications to allow the court to inspect it? It would only be reasonable that such programs be, at a minimum, prepared for court oversight. If preservation of evidence cannot be guaranteed then the program should not be used to enforce the law. I find it particularly troubling that this system was not only never envisioned to be used to pursue a warrant from the courts, but also designed to make it impossible to do so by making the act of proving the legality of the evidence collected by making a chain-of-custody analysis deliberately conflict with national security interests. I believe this is clearly analogous to a defensive weapon which is designed to kill enemies of the country, but although it regularly also kills civilians the government refuses to allow it to be inspected (and potentially fixed) using the excuse that turning it off would harm even more civilians. I unequivocally support the defence and enforcement of our national security, political and economic interests. However, I find it entirely unreasonable to sacrifice the freedoms from which our nation sprung, political and economic systems included, in order to preserve it.

afternooner 12y ago

Oceania here we come.

Hello71 12y ago

so... the government can force carpathia to spend thousands of dollars a day, but can't manage to keep its own data intact?