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Is the NSA Trying to Frighten Americans Into Dropping Lawsuits Against Dragnet Surveillance?

AT&T, spying, surveillance, eff

The government defendants chose to raise the issue of preservation of telephone metadata records.

The National Security Agency appears to have devised a process to discourage lawsuits challenging NSA surveillance.

NSA Signals Intelligence Directorate (SID) director Theresa M. Shea submitted a “top secret” declaration to the court in two lawsuits brought by the Electronic Frontier Foundation. The declaration was in response to concerns that the NSA was about to destroy evidence relevant to their cases.

NSA data is supposed to “age off” and no longer remain in the agency’s system after five years, but that data being “aged off” could help the EFF win its cases, which is what led attorneys to file a motion to prevent destruction of evidence in March.

Now, the NSA has responded with multiple proposals for how to handle the issue of continuing to store data it would not typically keep storing.

The proposals, which seem somewhat convoluted, include two options if the NSA were to retain all “aged off” telephony metadata while the lawsuits are pending. The agency could migrate the “data into a preservation system to which NSA intelligence analysts would have no access for any purpose.” The agency could also “migrate data acquired more than five years ago from online databases to offline storage on tape.”

The NSA could also, instead of retaining all data ever collected under the program or law being challenged, collect and continue to store only the data associated with calls made by plaintiffs represented in the cases. And that’s where one has to wonder if this proposed process is supposed to convince Americans to back away from suing the NSA.

Here is what Shea suggests in a portion of the declaration marked “top secret”:

…To the extent Plaintiffs seek targeted preservation of data associated only with their own telephone calls, the NSA would first have to determine whether it has ever collected data pursuant to Section 215 associated with Plaintiffs’ calls. For the NSA to make this determination, each Plaintiff organization and each individual Plaintiff would have to provide the NSA with, for example, all telephone numbers they were assigned or used at any time during the period for which data that otherwise would be destroyed must be preserved.

After a redacted section, Shea continues:

The Plaintiffs would also have to inform the NSA of the specific time period during which they were assigned or used each telephone number, so that data pertaining to the calls of other persons who may have used or been assigned a particular number are not inadvertently retained. For the same reason, if this litigation continues long enough, each Plaintiff would have to inform the Government of any changes in the numbers they use or are assigned.

If plaintiffs are not calling EFF to drop the lawsuits yet because this could violate their privacy more than the NSA may have already, Shea adds:

It is also important to note that the NSA would not simply be preserving data consisting of the Plaintiffs’ phone numbers, the preserved data would include, among other information, the initiating and receiving number and the date, time and duration of each call in each record that was collected. For example, if a call detail record concerning a phone call made by a Plaintiff was collected, that Plaintiff’s telephone number as well as the receiving number—which may be that of an individual not in any way associated with these lawsuits—would be preserved together, along with the date, time and duration of that individual’s call with the plaintiff.

In other words, Americans and organizations with American members can challenge NSA surveillance, but they may have to risk NSA doing things with their collected data that NSA would have never probably done. They may have to risk that NSA does things with their data that friends, family or associates would oppose too.

While many of those details could be apparently made public without aiding the terrorists (even though they come from “top secret” portions of the declaration),  it is apparently extremely sensitive for the NSA to disclose exact details on how much this all will likely cost the agency.

How much will this all cost? That’s “top secret.”

How long it will take a team of NSA software developers to create or implement a new software system to preserve the evidence is redacted. The cost is redacted. How much it will cost if litigation lasts three years is redacted. How much it will cost if litigation lasts five years is redacted. How much labor, hardware maintenance, back up media and additional software maintenance may cost is redacted. How long the process will take without experienced or trained personnel is redacted.

The cost of NSA personnel querying plaintiffs’ data and extracting it from analytic databases to store separately—that is redacted. Many details about the cost of retaining all “aged off” telephony metadata are redacted too.

Shea claims, “The fact that there is no way to predict how long the lawsuits before this court will last, coupled with ever-changing mission requirements and systems, makes it extremely difficult to estimate costs and to devise the most cost-effective data storage solution should the court issue an order requiring preservation of data that would otherwise be subject to age-off.”

“All of the feasible solutions present the possibility of imposing substantial burdens on the NSA that could divert limited resources away from foreign intelligence mission requirements,” however, to quantify these burdens publicly could do “exceptionally grave damage to national security.”

Information is classified “top secret” when “disclosure of the information reasonably could be expected to cause exceptionally grave damage to national security.” But how could the costs of a process specifically designed for the purposes of a lawsuit against the NSA, not for any foreign intelligence mission, reveal details that would cause “exceptionally grave damage to national security”?

What exactly does the NSA (or the government attorneys involved in the case) think the terrorists would learn? That NSA personnel are capable of engineering a system for storing information when ordered by a court?

There’s a section of the declaration where all the dates when NSA began collecting data are redacted. What inappropriate or unlawful activity is probably being obscured by the government’s refusal to allow those dates to be public information?

It is good to know the NSA has not changed one bit. It’s still the same agency Edward Snowden exposed that continues to deviously seek ways to skirt accountability.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."