NSA, Explain Thyself, Surveillance Court Says

     (CN) - The chief judge of the Foreign Intelligence Surveillance Court ordered the government to explain why it kept mum about an order mandating the preservation of evidence related to the National Security Agency's telephone surveillance.
     Judge Reggie Walton, a federal judge in Washington who heads the once-secret Foreign Intelligence Surveillance Court (FISC), ordered the NSA on March 7 to destroy metadata records more than 5 years old to protect citizens' privacy.
     In the order, Walton wrote: "To date, no district court or circuit court of appeals has entered a preservation order applicable to the BR metadata in question in any of the civil matters cited in the motion. Further, there is no indication that any of the plaintiffs have sought discovery of this information."
     But this statement turned out to be incorrect.
     The plaintiffs in Jewel v. NSA and Shubert v. Obama, two challenges to the government's surveillance practices, claimed the evidence-preservation orders in their cases covered the NSA's collected telephone metadata.
     Walton temporarily suspended his order days later when U.S. District Judge Jeffrey White issued a restraining order preventing the agency from destroying metadata that may be relevant to the surveillance challenge.
     The Jewel plaintiffs then sought leave to correct the record before the FISC, and Walton granted the motion Friday.
     "As the government is well aware, it has a heightened duty of candor to the court in ex parte proceedings," Walton said.
     The government was clearly aware that plaintiffs in Jewel believed that the preservation order in the case applied to telephony metadata, the court said.
     "The fact that the plaintiffs had this understanding of those preservation orders - even if the government had a contrary understanding - was material to the FISC's consideration of the February 25 motion," the ruling states. "The materiality of that fact is evidenced by the court's statement, based on the information provided by the government in the February 25 motion, that 'there is no indication that any of the plaintiffs have sought discovery of this information or made any effort to have it preserved.'"
     In fact, the Jewel plaintiffs had sought this information in discovery, but the government never informed the FISC.
     "The government should have made the FISC aware of the preservation orders and of the plaintiffs' understanding of their scope, regardless of whether the plaintiffs had made a 'specific request' that the FISC be so advised," Walton wrote. "Not only did the government fail to do so, but the e-mail correspondence suggests that on February 28, 2014, the government sought to dissuade plaintiffs' counsel from immediately raising this issue with the FISC or the Northern District of California."
     While the government's failure to do so may have been the result of imperfect communication, rather than a deliberate calculation, "nonetheless, the court expects the government to be far more attentive to its obligations in its practice before this court," the 10-page opinion says.
     Walton ordered the government to submit a filing with the FISC that "shall explain why it failed to notify this court of the preservation orders in Jewel and Shubert."
     The Jewel plaintiffs also asked Judge White to confirm that the preservation orders covered metadata at an emergency hearing last week. His ruling is pending.