Data Backup Digest

Recent court filings have shown that the National Security Agency (NSA) destroyed surveillance data which it had been bound to keep in conjunction with pending lawsuits. It’s also been reported that the agency never took the necessary steps to ensure the information wasn’t destroyed, despite telling the federal court otherwise.

After the 2001 terrorist attacks on the United States, it came to light that President George W. Bush had ordered wiretapping of international communications without a warrant. The NSA have been under court orders since 2007 to keep data about some of its surveillance efforts, and have represented such data in court a number of times since then.

In the middle of January this year, the NSA submitted a court filing which said that they had not preserved the data of internet communication interceptions between 2001 and 2007. The agency backup their data, of course, but these backup tapes had been removed in 2009, 2011 and 2016.

In a declaration, the NSA deputy director said that they sincerely regret their failure to prevent the deletion of the data and that they are committed to taking swift action in response. They claim that the data was deleted during a housecleaning effort to make way for new data.

They go on to say that their review thus far reveals the data was not specifically targeted for deletion, but rather that it matched criteria which was submitted to broadly delete data of a certain type.

Precise details over what has happened is still being investigated, but it is possible for contempt charges and sanctions to be charged to those in defiance of a court order. Whether such an act will be passed on the NSA remains to be seen.

“The obligation’s been in place for a really long time now. We had a major dust-up about it just a few years ago. This is definitely something that should’ve been found sooner,” said David Greene, an Electronic Frontier Foundation attorney. The group have been leading the litigation in federal court.

In May 2014, an official for the NSA told the court that the agency had been preserving tapes of the content since the inception of the program. They now say that they statement may have only been partially accurate.

A filing shows that the officials did a physical inspection in 2014 to confirm the tapes were present, but apparently those tapes largely contained metadata, rather than actual content of communications intercepted.

The NSA claim that the deletion impact could be limited because they’ve found some content from a period in 2003 and metadata from 2004 to 2007. It’s believed even if the communications themselves are lost, the metadata should give indication as to whether those involved in the suit had their communications captured by the NSA.

“We don't know exactly how bad it is. Even if you take them at their word that this was just an honest mistake, what it shows is despite your best intention to comply with important restrictions, it can be really difficult to implement,” said a lawyer for the EFF. “It shows that with the really tremendous volume of information they’re vacuuming up, it is impossible to be meticulous.”