08-01-2015, 11:12 AM
Eye rolls greet the professed desire to purge databases.
By Steven Nelson
July 29, 2015 | 3:03 p.m. EDT
The U.S. government says it wants to empty the National Security Agency's databases of
domestic call records that were collected in bulk, but that it can't because surveillance
foes seeking a courtroom win for privacy
rights have forced their retention.
The Office of the Director of National
Intelligence said Monday stored records will be accessible only to technical personnel for three months after the phone call dragnet ends in November pursuant to reforms in the USA Freedom Act, which became law last month.
Then, "as soon as possible [after Feb. 29,
2016],†the government will “destroy the Section 215 bulk telephony metadata upon expiration of its litigation preservation obligations," the statement says.
A spokeswoman for the ODNI, Kathleen Butler,
tells U.S. News that authorities would delete all
records collected in bulk under a contested
reading of Section 215 of the Patriot Act, not just those now held longer than the standard five years in response to court-issued preservation orders.
[tb]READ:[/b] Pardon Snowden? Nah, White House Says in Petition Response]
Several individuals and organizations are
challenging the call record dragnet, the first and best-known program exposed by whistleblower Edward Snowden in 2013.
But only the Electronic Frontier Foundation appears to have specific preservation of evidence orders.
Cindy Cohn, the EFF’s executive director, says
the group will gladly agree to lifting the
preservation orders – thus allowing the records’ destruction – if government attorneys admit their clients’ records were taken.
But that seemingly reasonable offer, previously
made in court filings, is unlikely to be accepted.
Government attorneys generally refuse to
concede the point so they can argue groups
and individuals can't prove their records were
taken and, therefore, lack standing to sue.
“What they want is for folks like you to paint us
privacy advocates as the reason that records
aren’t being destroyed,†Cohn says. “But if they would just own what they did to millions of Americans, instead of still hiding behind game- playing like their standing arguments, we could move forward with a reasonable destruction plan.â€
[FBI DIRECTOR: Authorities Will 'Go to Jail' If They Browse U.S. Snapchats Without Warrant]
Though authorities have conceded bulk collection happened and will continue through
November, attorneys defending the NSA say the government has not confirmed that any provider other than Verizon Business Network Services is affected.
That Verizon subdivision was named in a document leaked by Snowden that authorities acknowledge is authentic.
Cohn suspects there’s logic behind the
Department of Justice’s dogged refusal to
concede such basic and commonly known facts about mass phone-record collection.
“I think their strategy in the cases has always
been to throw as many roadblocks up as
possible to prevent the courts from ruling on
whether these programs are legal or
constitutional,†she says. “Because if the courts rule, especially on the constitutionality of mass surveillance, it could have longer lasting impact than even a statute does. Congress can change its mind easier than the Supreme Court does in interpreting the Constitution.â€
Other attorneys leading lawsuits against the
program – none of which yet have been found moot after passage for the Freedom Act – say they don’t currently have preservation of
evidence orders.
[POLL: Edward Snowden Unpopular at Home, A Hero Abroad]
“We are certainly not asking for preservation,â€
says Alex Abdo, an attorney at the American
Civil Liberties Union, which in May won a ruling finding the program unlawful and not authorized by Section 215 of the Patriot Act from a panel of the U.S. Court of Appeals for the 2nd Circuit.
Legal activist Larry Klayman, who in 2013 won
the first and thus far only District Court ruling
against the program – with Judge Richard Leon finding it likely violates the Fourth Amendment – says his cases (one is a yet-to-be-considered class-action, the other was heard in November by an appeals court) don’t have preservation orders.
A third case is on appeal against the program,
brought on behalf of Idaho nurse Anna Smith
with support from EFF and the ACLU. It does not have preservation orders. Nor does a long-stalled lawsuit brought by Sen. Rand Paul, R-Ky., and the libertarian group FreedomWorks.
Luke Malek, an attorney working on Smith's
case, and Ken Cuccinelli, who is representing
Paul and FreedomWorks, say they agree with
Cohn.
"The data should be destroyed, but it is
imperative that the standing of the citizens
whose records were collected is preserved," Malek says.
[ALSO: House Votes -- Again -- to Stop Backdoor NSA Searches]
"At this point, we would have the same condition as EFF," says Cuccinelli. He adds he also wants an accounting of call-record collection from before 2006, when the program came under supervision by the Foreign Intelligence Surveillance Court.
Cohn’s offer to allow the government to purge
records, however, likely is for naught. Klayman
says even if authorities satisfy EFF’s condition,
he’ll step in to block record deletion.
“You need to know what they’ve got,†he says.
“You know what it sounds like? That would be
like Hillary Clinton purging her email server.
That’s destroying evidence of their wrongdoing.â€
The enterprising attorney is asking a king’s
ransom (in the 10-figure range) as punishment
for the government allegedly violating
constitutional rights and feels the evidence will
help the effort.
He doubts intelligence officials are being honest about their willingness to part with the records anyhow.
Klayman wants the dragnet databases in the
meantime put under the supervision of ordinary courts rather than the Foreign Intelligence Surveillance Court, the shadowy institution that secretly approved the NSA program for years before Snowden’s disclosures.
By Steven Nelson
July 29, 2015 | 3:03 p.m. EDT
The U.S. government says it wants to empty the National Security Agency's databases of
domestic call records that were collected in bulk, but that it can't because surveillance
foes seeking a courtroom win for privacy
rights have forced their retention.
The Office of the Director of National
Intelligence said Monday stored records will be accessible only to technical personnel for three months after the phone call dragnet ends in November pursuant to reforms in the USA Freedom Act, which became law last month.
Then, "as soon as possible [after Feb. 29,
2016],†the government will “destroy the Section 215 bulk telephony metadata upon expiration of its litigation preservation obligations," the statement says.
A spokeswoman for the ODNI, Kathleen Butler,
tells U.S. News that authorities would delete all
records collected in bulk under a contested
reading of Section 215 of the Patriot Act, not just those now held longer than the standard five years in response to court-issued preservation orders.
[tb]READ:[/b] Pardon Snowden? Nah, White House Says in Petition Response]
Several individuals and organizations are
challenging the call record dragnet, the first and best-known program exposed by whistleblower Edward Snowden in 2013.
But only the Electronic Frontier Foundation appears to have specific preservation of evidence orders.
Cindy Cohn, the EFF’s executive director, says
the group will gladly agree to lifting the
preservation orders – thus allowing the records’ destruction – if government attorneys admit their clients’ records were taken.
But that seemingly reasonable offer, previously
made in court filings, is unlikely to be accepted.
Government attorneys generally refuse to
concede the point so they can argue groups
and individuals can't prove their records were
taken and, therefore, lack standing to sue.
“What they want is for folks like you to paint us
privacy advocates as the reason that records
aren’t being destroyed,†Cohn says. “But if they would just own what they did to millions of Americans, instead of still hiding behind game- playing like their standing arguments, we could move forward with a reasonable destruction plan.â€
[FBI DIRECTOR: Authorities Will 'Go to Jail' If They Browse U.S. Snapchats Without Warrant]
Though authorities have conceded bulk collection happened and will continue through
November, attorneys defending the NSA say the government has not confirmed that any provider other than Verizon Business Network Services is affected.
That Verizon subdivision was named in a document leaked by Snowden that authorities acknowledge is authentic.
Cohn suspects there’s logic behind the
Department of Justice’s dogged refusal to
concede such basic and commonly known facts about mass phone-record collection.
“I think their strategy in the cases has always
been to throw as many roadblocks up as
possible to prevent the courts from ruling on
whether these programs are legal or
constitutional,†she says. “Because if the courts rule, especially on the constitutionality of mass surveillance, it could have longer lasting impact than even a statute does. Congress can change its mind easier than the Supreme Court does in interpreting the Constitution.â€
Other attorneys leading lawsuits against the
program – none of which yet have been found moot after passage for the Freedom Act – say they don’t currently have preservation of
evidence orders.
[POLL: Edward Snowden Unpopular at Home, A Hero Abroad]
“We are certainly not asking for preservation,â€
says Alex Abdo, an attorney at the American
Civil Liberties Union, which in May won a ruling finding the program unlawful and not authorized by Section 215 of the Patriot Act from a panel of the U.S. Court of Appeals for the 2nd Circuit.
Legal activist Larry Klayman, who in 2013 won
the first and thus far only District Court ruling
against the program – with Judge Richard Leon finding it likely violates the Fourth Amendment – says his cases (one is a yet-to-be-considered class-action, the other was heard in November by an appeals court) don’t have preservation orders.
A third case is on appeal against the program,
brought on behalf of Idaho nurse Anna Smith
with support from EFF and the ACLU. It does not have preservation orders. Nor does a long-stalled lawsuit brought by Sen. Rand Paul, R-Ky., and the libertarian group FreedomWorks.
Luke Malek, an attorney working on Smith's
case, and Ken Cuccinelli, who is representing
Paul and FreedomWorks, say they agree with
Cohn.
"The data should be destroyed, but it is
imperative that the standing of the citizens
whose records were collected is preserved," Malek says.
[ALSO: House Votes -- Again -- to Stop Backdoor NSA Searches]
"At this point, we would have the same condition as EFF," says Cuccinelli. He adds he also wants an accounting of call-record collection from before 2006, when the program came under supervision by the Foreign Intelligence Surveillance Court.
Cohn’s offer to allow the government to purge
records, however, likely is for naught. Klayman
says even if authorities satisfy EFF’s condition,
he’ll step in to block record deletion.
“You need to know what they’ve got,†he says.
“You know what it sounds like? That would be
like Hillary Clinton purging her email server.
That’s destroying evidence of their wrongdoing.â€
The enterprising attorney is asking a king’s
ransom (in the 10-figure range) as punishment
for the government allegedly violating
constitutional rights and feels the evidence will
help the effort.
He doubts intelligence officials are being honest about their willingness to part with the records anyhow.
Klayman wants the dragnet databases in the
meantime put under the supervision of ordinary courts rather than the Foreign Intelligence Surveillance Court, the shadowy institution that secretly approved the NSA program for years before Snowden’s disclosures.