UPDATE: Judge White today continued his temporary restraining order in these two cases until a more permanent order could be put in place. The question of whether the government improperly destroyed evidence so far will be briefed over the next several weeks.
San Francisco - The Electronic Frontier Foundation (EFF) will fight disturbing new government claims in an emergency court hearing Wednesday – claims that may imply records documenting ongoing government surveillance have been destroyed despite a judge's order.
Over the last several weeks, EFF has been battling to ensure that evidence of the NSA surveillance program will be preserved as part of its two cases challenging the illegal government spying: Jewel v. NSA and First Unitarian Church of Los Angeles v. NSA. But in a court filing late Monday, the government made shocking new assertions, arguing that its obligation to preserve evidence was limited to aspects of the original Bush-era spying program, which the government contends ended eight years ago with a transition to FISA court orders.
"This argument simply does not make sense. EFF has been demanding an injunction to stop this illegal spying program, regardless of the government's shifting justifications," said EFF Legal Director Cindy Cohn, who will argue in front of U.S. District Court Judge Jeffrey S. White at the hearing Wednesday. "But these government claims aren't just nonsensical – they are extremely worrisome and dangerous. The government is suggesting it may have destroyed years' worth of evidence about its illegal spying, justified by its own secret interpretation of our case. This is about more than just phone records; it's about evidence concerning all of the government's spying. EFF is asking the court for a full accounting of just what is going on here, and it's time for the government to come clean."
EFF has been litigating against illegal NSA surveillance for more than eight years. Jewel v. NSA is a case brought on behalf of AT&T customers who were subject to unconstitutional NSA spying. In First Unitarian Church of Los Angeles v. NSA, EFF represents 22 groups whose First Amendment rights to association are violated by the NSA program.
Oral Argument in Jewel v. NSA and First Unitarian Church of Los Angeles v. NSA
EFF Legal Director Cindy Cohn
Courtroom of District Judge Jeffrey S. White
San Francisco Courthouse
Courtroom 11, 19th Floor
450 Golden Gate Avenue
San Francisco, CA 94102
Wednesday, March 19th
2 p.m. PDT
For the full government brief on evidence preservation:
For EFF's response:
High resolution image: (from left to right) Co-counsel Aram Antaramian, EFF Senior Staff Attorney David Greene, EFF Staff Attorney Nate Cardozo, EFF Legal Director Cindy Cohn, EFF Senior Staff Attorney Kurt Opsahl, Co-counsel Richard Wiebe, EFF Legal Fellow Andrew Crocker.
Rebecca Jeschke or Dave Maass
Electronic Frontier Foundation