If The NSA's System Is Too Big To Comply With Court Orders, Court Should Require It To Change Its System

Privacy

from the something's-badly-broken dept

Last week, we wrote about the latest in the Jewel v. NSA case, where the Justice Department admitted to the EFF that the NSA was still destroying surveillance evidence, despite a temporary restraining order in March ordering it to stop. The EFF had rushed over to the court to get an emergency order to get the DOJ/NSA to stop — and the DOJ flipped out, arguing that such an order was effectively impossible, since the information was quickly spread throughout many different systems, and stopping the program from deleting unnecessary info that was collected under that program (the so-called minimization efforts) might require the NSA to stop a huge amount of intelligence gathering, just to handle the situation. And, yes, there does appear to be some significant amount of irony in the idea that the DOJ insists that an order that it stop destroying evidence might mean that the NSA would have to stop collecting data in the first place. Either way, the judge was at least convinced enough that the court allowed the NSA to keep destroying evidence while the two sides further brief the issue, for a later ruling on whether or not the restraining order really applies to the information collected under Section 703 of the FISA Amendments Act.

While we focused mainly on the whole issue of the NSA/DOJ destroying key evidence in a case about its surveillance efforts, the ACLU has made another important (if related) point: if the NSA’s systems are really too complex to comply with a preservation order, isn’t that a pretty serious problem?

For an agency whose motto is “Collect It All,” the NSA’s claim that its mission could be endangered by a court order to preserve evidence is a remarkable one. That is especially true given the immense amount of data the NSA is known to process and warehouse for its own future use.

The NSA also argued that retaining evidence for EFF’s privacy lawsuit would put it in violation of other rules designed to protect privacy. But what the NSA presents as an impossible choice between accountability and privacy is actually a false one. Surely, the NSA — with its ability to sift and sort terabytes of information — can devise procedures that allow it to preserve the plaintiffs’ data here without retaining everyone’s data.

The crucial question is this: If the NSA does not have to keep evidence of its spying activities, how can a court ever test whether it is in fact complying with the Constitution?

The ACLU calls this “too big to comply,” a play on the infamous “too big to fail” claims towards Wall Street during the 2008 economic crisis. Of course, back in 2008, I made a simple suggestion on the “too big to fail” argument, which would seem to apply equally here. Back then, I pointed out that if banks are “too big to fail,” there’s a reasonable solution that doesn’t involve making them even bigger (which was the government’s solution): it was to require them to get small enough to fail again. Basically, the government could offer them bail out money on the condition that the banks be reorganized in a manner that if particular pieces started to fail, it didn’t create systemic risk to the entire system. In some forms it wouldn’t be all that different than a traditional antitrust breakup. And, yes, there’s a lot of complexity hidden within such a proposal, but it seems like the only thing that really made sense (though, unfortunately, no one in the government seemed to agree).

So, shouldn’t we take the same approach with the NSA? If its systems are truly “too complex to comply” or “too big to comply” with preservation orders, then shouldn’t the court require the NSA to change its systems such that it can actually comply with legal court orders to preserve evidence needed in lawsuits that explore the constitutionality of their surveillance efforts?

Filed Under: destruction of evidence, doj, jewel v nsa, nsa, section 702, surveillance
Companies: eff