Too Big To Comply? NSA Says It’s Too Large, Complex to Comply With Court Order

In an era of too-big-to-fail banks, we should have known it was coming: An intelligence agency too big to rein in — and brazen enough to say so.

In a remarkable legal filing on Friday afternoon, the NSA told a federal court that its spying operations are too massive and technically complex to comply with an order to preserve evidence. The NSA, in other words, now says that it cannot comply with the rules that apply to any other party before a court — the very rules that ensure legal accountability — because it is too big.

The filing came in a long-running lawsuit filed by the Electronic Frontier Foundation challenging the NSA's warrantless collection of Americans' private data. Recently, the plaintiffs in that case have fought to ensure that the NSA is preserving relevant evidence — a standard obligation in any lawsuit — and not destroying the very data that would show the agency spied on the plaintiffs' communications. Yet, as in so many other instances, the NSA appears to believe it is exempt from the normal rules.

In its filing on Friday, the NSA told the court:

[A]ttempts to fully comply with the Court's June 5 Order would be a massive and uncertain endeavor because the NSA may have to shut down all databases and systems that contain Section 702 information in an effort to comply.

For an agency whose motto is "Collect It All," the NSA's claim that its mission could be endangered by a court order to preserve evidence is a remarkable one. That is especially true given the immense amount of data the NSA is known to process and warehouse for its own future use.

The NSA also argued that retaining evidence for EFF's privacy lawsuit would put it in violation of other rules designed to protect privacy. But what the NSA presents as an impossible choice between accountability and privacy is actually a false one. Surely, the NSA — with its ability to sift and sort terabytes of information — can devise procedures that allow it to preserve the plaintiffs' data here without retaining everyone's data.

The crucial question is this: If the NSA does not have to keep evidence of its spying activities, how can a court ever test whether it is in fact complying with the Constitution?

Perhaps most troubling, the new assertions continue the NSA's decade-long effort to evade judicial review — at least in any public court. For years, in cases like the ACLU's Amnesty v. Clapper, the NSA evaded review by telling courts that plaintiffs were speculating wildly when they claimed that the agency had intercepted their communications. Today, of course, we know those claims were prescient: Recent disclosures show that the NSA was scanning Americans' international emails en masse all along. Now, the NSA would put up a new roadblock — claiming that it is unable to preserve the very evidence that would allow a court to fully and fairly review those activities.

As Brett Max Kaufman and I have written before, our system of oversight is broken — this is only the latest warning sign flashing red. The NSA has grown far beyond the ability of its overseers to properly police its spying activities. That includes the secret FISA Court, which has struggled to monitor the NSA's compliance with basic limits on its surveillance activities. It includes the congressional oversight committees, which operate with too little information and too often appear captive to the interests of the intelligence community. And, now we are to believe, it includes the public courts as well.

No intelligence agency should be too big to be accountable to the rule of law.

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The Walrus

It's not too big to close down, if enough of you have the courage to do it.


Amen ACLU. Keep up the fight!

Paul E. Merrell...

Amazing. NSA argues in effect that it is unable to backup its databases. Why do I find that hard to believe?

William Hamilton

When Bell telephone became "too large" and Standard oil became "too large"
The government broke them into smaller pieces.

Do we really need the NSA, CIA, FBI, Homeland Security and whatever other secret agencies there may be with their noses up our butts?


Let the judge put someone in jail for violating a court order then, and see how fast it gets done.


Bullshit. You don't need to shut down a database to preserve data on it.

SELECT * FROM table_name WHERE first_name="[plaintiff's first name]" AND last_name="[plaintiff's last name]";

That one command gets you the data on the plaintiff without shutting down anything. Rinse and repeat for each table you're getting data from out of the database.


I think all of this info is for one reason .black mail ..for the U.S. to be able to control every one .around the world .that makes more cents than the crap they are throwing out there . we see where those running for a job .and then out of the blue .they back off .no reason given .and with there EYE on us around the clock .they would get all of our secrets .we all have them .and the N.S.A as well C.I.A F.B.I and the rest .. brakes the law of [black mail] to get there way . and not for us .not even for America . it is to better them self's . look at congress and the house .all of them million's and billons . and that insider trading ,we would have gone to jail for what they did .because they put them self's above the law .they should be replaced .is it not in the bill of rights .[that when the system fells to give equal justice to all . that the job goes back to us .the tax payers .to us [we the people ] get the trash out of D.C and out of our government . start at the top and go all the way to the bottom .make America what it should be for the next generation .


all I have to say to "to big to close" is STOP THE MONEY and see how fast things will get done. This is a bunch of crap they are rouge now and doing things against the law so its now time to purge there system. The public will be in charge of the sentencing.


Too big to fail, too large to comply, to rich to pay taxes...
Which amendment to the Constitution covers that?


Hey, NSA, just because you and Ethel can't box chocolates doesn't mean you get a pass with Justice.


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