

Judge: NSA doesn’t have to keep all data as part of key surveillance lawsuit - sinak
http://arstechnica.com/tech-policy/2014/06/judge-nsa-doesnt-have-to-keep-all-data-as-part-of-key-surveillance-lawsuit/

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sigil
So, "collect it all" ... unless you're in court, in which case it's okay to
delete key evidence because it's "hard" to keep evidence?

Snark aside, this part made me curious:

 _the NSA may have to shut down all systems and databases that contain Section
702 information in order to preserve [it]_

Is this really just a technical problem: a system design that failed to
anticipate how legal proceedings would / could interact with the minimization
feature? (Of course, they probably never expected the former.)

~~~
jjoonathan
> Snark aside

Is it really snark? Cops pull the "missing evidence" stunt all the time and
get away with it, why should we expect different from the NSA (now that
they're playing at being a law enforcement agency)?

> Is this really just a technical problem

I wouldn't go so far as to say this happened by design, but at the end of the
day does it really matter? Opportunistic evil is still evil, and this
opportunity dangles the temptation of opportunistic evil in front of a group
of people that don't exactly have a sterling track record of self-restraint in
such matters.

EDIT (re:downvoters): I realize that the court order has more to do with the
ongoing court case than ongoing retention policy. That doesn't make ongoing
retention policy irrelevant.

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revelation
The NSA program is too big for due process.

Yes, having to preserve all that stuff is a big burden when you already have
do a 72h rollover given the immense amounts of data being collected. It's as
if the people designing this didn't exactly account for the possibility of
judicial inquiry.

~~~
mpyne
Do civilian webmasters or Dev/Ops personnel typically retain all the data they
transmit or receive along with the metadata as well?

That's what I'm still confused about here; why couldn't the court order the
NSA to retain some set of metadata on the 702 programs they are running? Why
does this entire argument revolve around the binary decision of _all possibly
relevant_ data and metadata or none of it?

Even if NSA has to filter heaps and heaps of metadata (which is the "data" for
their system), they could easily retain summary information of what data was
filtered, whether it's filtered by subnet, identifier, etc.

As made clear in the past year by both NSA and EFF, metadata can reveal a lot
about the activities of a person (or in this case, an Agency). I think it
would make more sense for the EFF to push for specific items to be retained by
NSA for civil discovery instead of "all NSA intake via 702".

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anigbrowl
Because Rule 26 of the _Federal Rules for Civil Procedure_ , which governs
discovery, specifically rule 26(b)(1) is quite broad in scope, and even
sanitizing it of non-privileged information (most likely classified data in
this context) could allow outside parties to make structural inferences that
would compromise intelligence gathering activities.

As a cheesy example, suppose I have files that note the existence of Alice,
Bob, Carol, and Donald, and suppose furthermore that I suspect Carol of being
a spy. You object to my surveillance activities and ask discovery of same. My
evidence that Carol is a spy may be obviously privileged, but if I give you my
files on Alice, Bob, and Donald it's easy to guess that I view Carol as
somehow different from the others.

Now, I could in theory furnish minimal information on Carol that would not
clearly distinguish her from the other three, but that puts the Executive
Branch in the awkward position of making judgments about what degree of truth
it is appropriate to provide, which is the sort of thing that is properly the
province of the Judicial Branch. So the Executive Branch argues that
compliance would necessarily mean an abrogation of Judicial Branch functions
if it is not to impair he Executive Branch's lawful security function, and now
you've got a separation-of-powers problem.

What happens in many cases and _may_ happen in this one, is that if there
isn't a clear legal principle which guides the balance of the interests the
Court may review the material in question and decide exactly what should be
handed over and what can be retained, which decision might then be appealed to
higher court by one party or the other.

~~~
mpyne
Good points, all. It would probably be easier to argue about particulars if
EFF had suggested any (though maybe they've made such feelers already in
private).

------
afternooner
Oceania here we come.

------
Hello71
so... the government can force carpathia to spend thousands of dollars a day,
but can't manage to keep its own data intact?

