DOJ'S LEGAL DEFENSE OF NSA IS LEGALLY HOGWASH

FROM TECH DIRT

Why The DOJ's Legal Defense That 'All' Info May Be 'Relevant' For The NSA Is Legally Hogwash

from the just-not-true dept

Last week, we noted the ridiculousness of the DOJ's attempted defense of the government's use of Section 215 of the Patriot Act to scoop up all phone records on every call, claiming a very twisted definition of "relevant" among other things. A variety of folks have been picking apart some of the claims in that analysis, and Orin Kerr has detailed some specific problems with the case law that the DOJ uses to back up its definition of "relevance." If this were an actual court document, it would be easy to counter, since it seems clear that the DOJ didn't use the most appropriate citations, twisted the citations it did use to mean more than they really do, and (most importantly) ignored much more relevant (and I mean that in the English sense, rather than the DOJ sense) citations and precedents. Kerr points out that the DOJ played down that the main precedents they use have specific conditions concerning necessity and context, but further notes how other cases appear to be much more germane to the topic:

A case that comes to mind is In re Grand Jury Subpoena Duces Tecum Dated Nov. 15, 1993, 846 F.Supp. 11 (S.D.N.Y. 1994) (Mukasey, J.). In that case, then-Judge (later Attorney General) Michael Mukasey quashed a grand jury subpoena that sought all computers and all electronic storage devices possessed by the target corporation. The subpoena failed Rule 17′s “relevance” standard because the computers contained so much irrelevant material intermingled with the data that was relevant to the investigation:

Government counsel have conceded on behalf of the grand jury that the subpoena demands irrelevant documents. Moreover, the government has acknowledged that a “key word” search of the information stored on the devices would reveal “which of the documents are likely to be relevant to the grand jury’s investigation.” Id. at 3. It follows that a subpoena demanding documents containing specified key words would identify relevant documents without requiring the production of irrelevant documents. To the extent the grand jury has reason to suspect that subpoenaed documents are being withheld, a court-appointed expert could search the hard drives and floppy disks.

“[B]ecause the subpoena at issue unnecessarily demands documents that are irrelevant to the grand jury inquiry,” Mukasey concluded, “it is unreasonably broad under Federal Rule of Criminal Procedure 17(c).”

Mukasey’s decision seems to cut against the Administration’s position. It blocks a subpoena for all the electronically-stored information because lots of the information to be obtained is not relevant even thought some of it is. Plus, the opinion is written by a recent Attorney General of the United States, which should give it extra prominence. And it’s a lot more significant a precedent than are Fourth Amendment cases involving warrants to search computers: Warrants do not apply the relevance doctrine while subpoenas do, so it seems odd to discuss the cases about computer warrants but not the cases on computer subpoenas. But the “white paper” doesn’t mention this case, so we don’t know if the Administration has a response to it– or if the FISC was ever alerted to it.

I'd suggest reading the entire thing, because it also delves deeply into why the cases that the government does cite don't really support its claims.

But, the real issue here is that this is the kind of thing you get when you have a secret process with a secret court and secret rulings -- with no adversarial hearings at all. It allows one side -- in this case the DOJ -- to make incredibly weak arguments based on distorting existing case law and completely ignoring much more relevant case law, and then getting away with it because no one's there to point out how misleading the defense is. No wonder the DOJ has fought for so many years to avoid having to reveal the legal interpretation of Section 215 that explains the secret interpretation for why 215 allows the scooping up of all phone records. Someone must realize that it would immediately be shown to be lacking. But, when you know that no one is seriously reviewing these things, and those who have the most interest in actually protecting our civil liberties are kept in the dark, you can get away with incredibly sloppy legal defenses. And it appears that's exactly what the DOJ did here.

And it's just all of our privacy that was trampled on in the process.