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U.S. Accused of Destroying Spy Records Sought as Evidence

Years of phone and Internet records collected under anti-terror surveillance programs and sought as evidence in a lawsuit were destroyed by the U.S., the Electronic Frontier Foundation said.

The government wiped out the records without getting approval from the federal judge overseeing the case, who ordered the evidence preserved, Cindy Cohn, legal director of the San Francisco-based cyber rights advocacy group, said in a court filing today. The court should now assume the missing records would have shown the government spied on the EFF’s clients, who are challenging the programs, Cohn said.

“We are simply asking the court to ensure that we are not harmed by the government’s now-admitted destruction of this evidence,” Cohn said in a e-mail.

The EFF’s 2008 lawsuit was one of the earliest to question secret spying programs put in place after the 2001 terrorist attacks, claiming the National Security Agency intercepted phone communications in violation of wiretapping laws. It cited documents provided by a former AT&T Inc. telecommunications technician allegedly showing the company routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA.

The government destroyed three years of telephone records seized between 2007 and 2012 and seven years worth of Internet records it seized between 2004 and 2011, the EFF said in court papers today. The group said in a statement the government admitted the destruction in recent court filings.

Warrantless Surveillance

The government understood the lawsuit to challenge presidentially-approved programs authorizing warrantless surveillance, not surveillance authorized by a special court in Washington that was leaked last year, Justice Department lawyers said in a May 9 court filing.

The EFF has filed a separate lawsuit challenging NSA surveillance first disclosed in documents leaked by former security contractor Edward Snowden. The NSA in March was blocked by the federal judge in San Francisco overseeing the case from destroying phone records collected from surveillance because they might be relevant to the lawsuit.

Marc Raimondi, a spokesman for the Justice Department’s national security division, had no immediate comment on the EFF filing today.

The case is Jewel v NSA, 08-04373, U.S. District Court, Northern District of California (San Francisco).

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