About-Face From FISC|on NSA Data Destruction

     (CN) – The Federal Intelligence Surveillance Court reversed its ruling that the National Security Agency must destroy telephone-metadata records after five years, because the order conflicts with a federal judge’s decision to preserve such material for discovery purposes.
     Judge Reggie Walton, a federal judge in Washington who heads the once-secret Foreign Intelligence Surveillance Court, ruled Friday that “the government’s contention that FISA’s minimization requirements are superseded by the common-law duty to preserve evidence is simply unpersuasive.”
     He noted that a federal judge had never entered a preservation order for the NSA’s metadata, and called the possibility of such an order “far-fetched.”
     Just one business day later, however, the federal judge overseeing Jewel v. NSA, a class action challenge to the NSA’s Terrorist Surveillance Program, followed up with a restraining order preventing the destruction of metadata.
     Electronic Frontier Foundation attorney Mark Rumold who represents plaintiffs in Jewel, told Courthouse News Tuesday that “the FISC’s order was premised on the fact that there was no evidentiary preservation order already ordered. That was a false premise.”
     Rumold said the government has been under court order to preserve evidence related to the civil litigation since 2006.
     Walton granted the NSA temporary relief from his March 7 order on Wednesday.
     “These conflicting directives from federal courts put the government in an untenable position and are likely to lead to uncertainty and confusion among all concerned about the status of BR metadata that was acquired more than five years ago,” the new order states.
     Walton declined, however, to adopt the government’s suggested condition that would require plaintiffs to seek the approval of the FISC before accessing any bulk records, or BR, metadata for civil litigation purposes.
     “It is appropriate for the district court, rather than the FISC, to determine what BR metadata is relevant to that litigation,” Walton wrote.

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