(CN) - At an emergency hearing Wednesday, opponents of the National Security Agency's telephone surveillance program will demand preservation of collected telephone metadata for discovery.
Electronic Frontier Foundation attorney Cindy Cohn, representing plaintiffs in Jewel v. NSA and First Unitarian Church v. NSA, were to appear before U.S. District Court Judge Jeffrey White at 2 p.m.
The plaintiffs sought the emergency hearing after two recent conflicting orders cast doubt on the NSA's obligation to preserve evidence for civil discovery.
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.
He temporarily suspended the order just days later, however, after White issued a restraining order preventing the agency from destroying metadata that may be relevant to the surveillance challenge.
A March 17 response brief from the government claims that the Jewel litigation does not extend to data acquired under FISC orders, only to surveillance authorized by President George W. Bush without court oversight. Under this narrow reading of the Jewel claims, there should be no conflict with destroying data collected under a FISC order by the five-year limit.
It also says the plaintiffs' demands for data preservation "would place substantial burdens on the NSA and require a significant diversion of financial, technological, and personnel resources from accomplishment of the agency's core national security mission."
This reading of the complaint, filed more than seven years ago, appalled the plaintiffs.
"It now seems apparent that the government, as a result of its secret unwarranted and extremely narrow reading of the Jewel complaint, has not adequately preserved evidence regarding the claims in Jewel," Cohn wrote in a Tuesday reply brief. "As revealed to plaintiffs for the first time at 1:00 p.m. yesterday, as part of an 89-page filing containing a 38-page brief, the government decided, in secret, that plaintiffs' complaint does not reach the government's collection activities other than those done solely under 'presidential authority.' This assertion is both absurd and outrageous, flying in the face of the eight years that plaintiffs have been seeking to stop the government's mass surveillance programs, six years of which (and a trip to the Ninth Circuit and back) occurred under the Jewel complaint." (Parentheses in original.)
The brief asks White to reaffirm the Jewel preservation order, enter a preservation order in First Unitarian Church similar to that in Jewel, and order the government to disclose whether it has destroyed any evidence potentially relevant to the lawsuits.
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