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NSA argues its system is 'too complex' to stop destroying evidence

Published time: June 10, 2014 20:30
National Security Agency (NSA) (AFP Photo)

National Security Agency (NSA) (AFP Photo)

Making any adjustments to the way the National Security Agency collects intelligence —even court orders to ensure that evidence isn’t deleted by the NSA’s spying infrastructure — would bring great harm to the United States, officials say.

In the midst of a frantic filing of legal memorandum late last week, the NSA told a federal court judge in California that following through with official orders to preserve metadata collected by the spy firm would cause grave repercussions.

NSA Deputy Director Richard Ledgett made that argument in a filing entered withUS District for the Northern District of California Judge Jeffrey S. Whiteon Friday after the court said that intelligence gathered by the agency through a contested surveillance program must be preserved while the case continues to be heard.

RT has reported previously that that case, Jewel vs NSA, has challenged the agency’s practice of collecting telecommunication records in bulk since before former government contractor Edward Snowden exposed the full scope of the agency’s activities starting last June. Only last week, in fact, RT reported that lawyers for the plaintiffs in that case told the court that “there was no doubt that the government has destroyed years of evidence of NSA spying.”

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,” Electronic Frontier Foundation attorney Cindy Cohn wrote last Friday on behalf of the plaintiffs.

Cohn and her colleagues quickly asked the court to intervene and ensure that all information being collected by the NSA as authorized by Section 702 of the Foreign Intelligence Surveillance Act, or FISA, remain on the government’s computers and not be deleted as assumed, but Ledgett responded right away to say that the nature of the agency’s surveillance program and the infrastructure involved was too complex to be altered.

“Assuming that the Court’s June 5, 2014 order requires an immediate halt to destruction of all Section 702 materials, that order creates an extremely significant operational crisis for the National Security Agency,” the agency’s lawyers wrote.

A testimony entered by Ledgett argued further that “any attempts at an immediate solution would unleash a series of consequences that the US government cannot predict because a requirement to preserve all data acquired under Sec. 702 presents significant operational problems, only one of which is that the NSA may have to shut down all systems and database that contain Sec 702 information in order to attempt to preserve” that information.

If compelled to implement this order without additional time for a more thoughtful review, the NSA may be forced to consider drastic measures, to include, the possible suspension of all operations related to the collection, processing, analysis and dissemination of communications acquired pursuant to Sec. 702,” Ledgett added.

According to the deputy director, it could take months for the NSA to find a way to preserve all information that it collects instead of routinely expunging evidence older than half-a-decade.

The NSA’s “novel argument” it presented to the court, Andrea Peterson wrote for the Washington Post, is that “it’s too complex.” According to Ledgett, any change in the agency’s systems could be catastrophic.

An order prohibiting the destruction of any Sec. 702 data will cause a lack of or delayed access to lawfully collected SIGINT data on foreign teinlligence targets of interest to the NSA’s customers,” Ledgett added. “The NSA has a finite amount of data storage capacity, and if the NSA were ordered to retain data that would otherwise be aged-off of its systems, the NSA would be limited in the amount of newly collected non-FAA [FISA Amendments Act of 2007] data that it could store.”

After several memos were filed by the EFF and the NSA’s lawyers on Friday, Peterson wrote that Judge White reversed his earlier emergency order that had barred the government from destroying that data.