

US says evidence in NSA privacy case must be destroyed due to national security - postalex
http://motherboard.vice.com/read/the-us-argues-it-must-destroy-key-nsa-evidence-to-protect-national-security

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btilly
There is an important underlying issue here.

The NSA's legal doctrine is that collecting and retaining data is not a search
under the 4th amendment, and so has no legal protection. Querying their data
for information on a person is a search, but as long as that person is not a
US citizen, there is still no 4th amendment protection. If they query data for
a US citizen without a court order and then find out that it was a US citizen,
their policy is that they immediately throw away the search and forget that
they did so. Since there was no intent to search, they think that the accident
is OK.

But any query that intentionally gets information about US citizens, no matter
how minor, is a 4th amendment issue. Therefore, for instance, a query to find
out how many Americans were accidentally searched would violate the
Constitution. (This is not a hypothetical example - they refused to provide
exactly that information to Congress on that rationale.)

Therefore they have built a system that stores data about all of us, and has
safeguards to throw away any unconstitutional searches. The safeguards may or
may not be as hard to circumvent as they claim. (I'd guess not.) But I'm sure
that any attempt to find out will be met with the state secrets privilege.

