NSA Admits It Has AGAIN Been Deleting Evidence Needed In Long-Running Surveillance Lawsuit

The NSA is once again deleting data it's been ordered to retain for ongoing lawsuits. This isn't the first time. The Jewel v. NSA lawsuit -- which is nearing its tenth year in litigation -- has been ground zero for multiple NSA screw-ups. The shutdown of the Section 215 program resulted in some perhaps deliberate confusion within the agency. At first, the NSA decided it should just purge its 215 collections, taking with it anything that might be used against it in the Jewel case. Then it decided it would keep everything, giving it the opportunity to trawl pre-reform data banks for anything it might find useful, while simultaneously stiff-arming plaintiffs' requests for surveillance records.

Despite angering multiple judges with its inability to follow simple court orders, the NSA is back in front of a judge trying to explain why it has failed yet again to retain data relevant to the Jewel case.

[T]he NSA told U.S. District Court Judge Jeffrey White in a filing on Thursday night and another little-noticed submission last year that the agency did not preserve the content of internet communications intercepted between 2001 and 2007 under the program Bush ordered. To make matters worse, backup tapes that might have mitigated the failure were erased in 2009, 2011 and 2016, the NSA said.

That's the problem with collecting all the stuff. Where do you put it? Sooner or later, you have to get rid some stuff to make room for the new stuff. But rest assured, the NSA feels just awful it may have deleted crucial evidence.

"The NSA sincerely regrets its failure to prevent the deletion of this data," NSA's deputy director of capabilities, identified publicly as "Elizabeth B.," wrote in a declaration filed in October. "NSA senior management is fully aware of this failure, and the Agency is committed to taking swift action to respond to the loss of this data."

In the update Thursday, another NSA official said the data were deleted during a broad, housecleaning effort aimed at making space for incoming information.

Evidence spoliation d/b/a performance enhancements. That's the NSA way. The NSA claims potential evidence wasn't "targeted" but possibly was deleted. In other words: incidental deletion. This follows the NSA's assertions possible evidence was secured and fully backed up. Supposedly magnetic tapes containing communications and metadata pertinent to the Jewel case had been physically set aside and segregated from the NSA's other backups and data collections. That now appears not to have been the case.

The NSA is "preserving magnetic/digital tapes of the Internet content intercepted under the [PSP] since the inception of the program," [NSA official Miriam P.] wrote, adding that "the NSA has stored these tapes in the offices of its General Counsel."

The agency now says, "regrettably," that the statement "may have been only partially accurate when made."

The NSA is now making "extraordinary" efforts to recover the stuff it said wouldn't be erased. As the EFF (representing the plaintiff) has pointed out (repeatedly), missing evidence should be presumed to be favorable to the person asking for it to be handed over. Anything the NSA can't come up with should bolster the plaintiff's case. The NSA can't plausibly argue the plaintiff was never targeted or swept up incidentally in its collections if it doesn't have a copy of this data that shows otherwise.

Any person offering up shrugs and apologies instead of requested evidence could expect to be sanctioned by the court. Somehow I doubt the NSA will be subject to the same rules that apply to everyone else.