EFF has filed the final brief in its dispute with the government over evidence preservation in Jewel v. NSA against mass surveillance. As the brief explains, the government has admitted to destroying years of evidence of its mass spying, and this destruction continues today. In fact, at an emergency hearing in June, the government claimed that it was incapable of complying with a court order to preserve evidence relating to the mass interception of Internet communications it is conducting under Section 702 of the FISA Amendments Act.
The new brief responds to questions posed by the court at the June hearing. First, we debunk the government’s secret reinterpretation of the Jewel lawsuit as only challenging the spying program as authorized by the President, and not when authorized by Section 702 or by the Foreign Intelligence Surveillance Court (even though the program itself did not change).
Second, we explain why the court should grant an "adverse inference," a ruling that we can assume that the destroyed evidence would show that our plaintiffs’ communications and records were in fact swept up in the NSA’s mass spying programs. Given the government’s claims that preserving Section 702 evidence is impossible, the adverse inference would keep the plaintiffs from being harmed by this ongoing destruction.
We hope for a ruling soon on the government’s duty to preserve evidence and the adverse inference we ask for in the brief.