The government has been monitoring vast amounts of electronic data for years and this top secret program, also known as PRISM, has recently been exposed by former NSA contractor Edward Snowden. However, this is not the first time the U.S. Federal Government has been involved in monitoring and collecting electronic metadata and electronically stored information (ESI). In 2000, Britain, the U.S., Canada, Australia, and New Zealand established Echelon which searched for certain keywords in a combination of faxes, emails, and electronic communications. This joint intelligence was supposed to fight terrorism, but it was revealed that it may have secretly been used to give American companies an advantage against their European counterparts.
This economic espionage is precisely the type of activities the U.S. government has criticized foreign countries, such as China, for. One legitimate interest the government could have in economic espionage is to help fend off foreign efforts to steal American intellectual property and digital trade secrets. The theft of military secrets is clearly an area that would warrant such an application, but one has to wonder how much of this information was used to help American companies obtain foreign contracts and make profits at the expense of businesses abroad?
The long arm of the NSA has many questioning such applications such as cloud computing. The covert visibility into cloud-based web services by government agencies threatens privacy, intellectual properties, and trade secrets that companies have been trying to protect for years—increasing the need for better security, confidentiality, and privacy. Some companies have adopted encryption in the cloud technologies to make such searches by potential snoops more difficult. If the government can gain access to this information, then a very real threat exists that government staff and contractors will at sometime in the future compromise such information and subsequently it could fall into the hands of foreign governments, hackers or competitors.
NSA Metadata—Possible Discovery Goldmine
The NSA leak has other potential consequences that should be considered. The information the U.S. Federal Government has collected could be useful to civil litigators during discovery. Such information could provide attorneys an advantage in protecting trade secrets and other intellectual property as well as help in criminal prosecution and civil defense litigation. The disclosure of such information could become a potential source of discovery for civil litigation. One has to wonder if the State and U.S. Federal Courts will allow companies and entities involved in civil litigation to make a discovery request to the NSA for cell phone records, or other vital electronically stored information (ESI) they captured, but that no longer exists elsewhere. The Federal Rules of Civil Procedure will ultimately be forced to address many of these important issues raised.
If you think this isn’t coming—then think again. A criminal defense lawyer in Florida is already requesting cell phone records gathered by the NSA to be used as potential evidence to protect his client. Terrance Brown was accused of holding up an armored truck carrying bank cash in July of 2010. The FBI and federal prosecutors are using cell phone records as part of their case, however, prosecutors were unable to use Mr. Brown’s cell phone records before September 2010 because his carrier did not keep them.
The NSA leak raised questions about whether or not this information that the NSA has gathered and collected could be used in litigation and discovery.
- Is the government required to hand over once-secret data captured clandestinely by their monitoring programs that no longer exists elsewhere?
- Will NSA captured metadata and ESI become evidence in civil and criminal cases going forward?
- What parameters will the courts require in order to grant and compel discovery production of ESI captured by the NSA?
The outcome of Brown’s case will likely set precedence for how the legal system is allowed to use the NSA metadata. This could turn into a potential discovery goldmine for the legal community and civil rights organizations.
“This opens up a Pandora’s box. You will have situations where the phone companies no longer have the data, but the government does, and lawyers will try to get that data.”
— Mark Rasch, former head of the Department of Justice Computer Crimes Unit
At Forensicon, we have the technology and the experience to assist your company or firm with all digital and electronic analysis. It is important to consult with an e-Discovery consultant who can potentially identify if the data you seek for your case may exist in other forms or locations unknown to you. Let our years of experience assist you today. To learn more about how our computer forensic specialists can assist your firm, call us at 1-888-427-5667 or visit us on the web at www.forensicon.com.
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