This is the argument put forth by the surveillance agency to excuse itself from preserving data relevant to numerous legal challenges it faces to the constitutionality of its dragnet collection of telephone and Internet activity.
District Court Judge Jeffrey S. White reversed an earlier order he had issued enjoining the federal government from destroying data that one of the plaintiffs — the Electronic Frontier Foundation (EFF) — had requested be saved from the virtual shredder. Specifically, EFF wants to include information collected under Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments.
The NSA balked, insisting that protecting the information would be overly burdensome.
"A requirement to preserve all data acquired under section 702 presents significant operational problems, only one of which is that the NSA may have to shut down all systems and databases that contain Section 702 information," NSA Deputy Director Richard Ledgett claimed in a document submitted to the court.
He averred that due to the high complexity of the surveillance equipment, the attempt at preservation might not work and it if did, the safety of the United States could be imperiled.
Pointing to the regulations imposed by the Foreign Intelligence Surveillance Court (the so-called FISA Court), Ledgett argued that the risks of data preservation far outweigh the rewards, and the complexity of such an operation outweighs them both.
"Communications acquired pursuant to Section 702 reside within multiple databases contained on multiple systems and the precise manner in which NSA stays consistent with its legal obligations under the [FISA Amendments Act] has resulted from years of detailed interaction" with the FISA Court and the Justice Department, Ledgett wrote in the filing quoted by the Washington Post.
The NSA routinely destroys data "via a combination of technical and human-based processes," he added.
In an interview with the Washington Post, EFF’s legal director Cindy Cohn expressed her belief that the government’s excuses raised more concerns:
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