NSA Out-NSAs Itself in Lawsuit Defense
Jewel v. NSA, a lawsuit filed in 2008 — years before the Edward Snowden leaks — takes the National Security Agency to task for the mass surveillance of AT&T customers' communications.
Recently, the Electronic Frontier Foundation, the advocacy group behind the suit, asked that the NSA not destroy certain data that could be used as evidence in the case, and the NSA responded by arguing that its own systems are too complex to find and hold the information.
But the NSA argued that holding onto the data would be too burdensome. "A requirement to preserve all data acquired under section 702 presents significant operational problems, only one of which is that the NSA may have to shut down all systems and databases that contain Section 702 information," wrote NSA Deputy Director Richard Ledgett in a court filing submitted to the court.
The complexity of the NSA systems meant preservation efforts might not work, he argued, but would have "an immediate, specific, and harmful impact on the national security of the United States." Part of this complexity, Ledgett said, stems from privacy restrictions placed on the programs by the Foreign Intelligence Surveillance Court.
Of course, ultimately, the EFF would like to see the information destroyed — that's what the lawsuit is all about — but not before it can be used to prove the NSA was spying on Americans.
According to EFF legal director Cindy Cohn, the NSA's assertion that its own data is too complex to keep track of only lends credence to the lawsuit:
The government's explanation raises more concerns, said Cindy Cohn, EFF's legal director. "To me, it demonstrates that once the government has custody of this information even they can't keep track of it anymore even for purposes of what they don't want to destroy," she said in an interview.
"With the huge amounts of data that they're gathering it's not surprising to me that it's difficult to keep track— that's why I think it's so dangerous for them to be collecting all this data en masse," Cohn added.