Lawyer Speaks to Conflict on NSA Data Rights

(CN) - A "false premise" led the Federal Intelligence Surveillance Court to order the destruction of data secretly collected by the National Security Agency, opponents of the spying said.

Several groups including the American Civil Liberties Union and the Electronic Frontier Foundation (EFF) have filed civil suits to end NSA's broad surveillance of American citizens.

The FISC ruled Friday that the NSA must destroy any telephone metadata that it collects within five years. 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 this destruction.

Mark Rumold, an EFF attorney who represents the plaintiff in Jewel, spoke to Courthouse News on these conflicting rulings from Chief FISC Judge Reggie Walton and U.S. District Judge Jeffrey White in San Francisco.

"The District Court is not obligated to follow a ruling of the FISC," Rumold said. "Unfortunately, the FISC's order was premised on the fact that there was no evidentiary preservation order already ordered. That was a false premise. The government has been under court order in Jewel, Schubert and predecessor cases to preserve evidence since roughly 2006 when the initial multidistrict litigation was filed against the government."

The government should have been aware of this, Rumold added.

"When we saw that the government's filings did not mention this, we immediately contacted the government," he said. "We brought it to the FISC's attention."

With the NSA facing two conflicting orders, Rumold implied that the FISC ruling is ineffective.

"Right now they can maintain it for five years without searching it," he said. "What the government had proposed to the FISC was that after five years it would be segregated and stored only for evidentiary purposes, not to search. We haven't sorted out the details of how that would work. This preservation order does not change that."

The EFF isn't alone in bringing the FISC ruling to the attention of White in San Francisco, Rumold said.

"I'm sure the government will too since they're under somewhat conflicting court orders on account of their own failure to inform the FISC of those other lawsuits," he said. "There is a hearing scheduled on Judge White's order next week."

Attorneys at Keker and Van Nest, a private firm backing the EFF's efforts did not immediately return a request for comment.

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