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Monday, May 20, 2024 | Back issues
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NSA Challengers Want Metadata Preserved

(CN) - Opponents of the National Security Agency's telephone surveillance program want reaffirmation of the agency's obligation to preserve telephone metadata, after conflicting court orders left the data's fate in limbo.

Judge Reggie Walton, a federal judge in Washington who heads the once-secret Foreign Intelligence Surveillance Court, ordered the NSA on Friday to destroy metadata records more than five years old to protect citizens' privacy.

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, U.S. District Judge Jeffrey White, the federal judge overseeing Jewel v. NSA and First Unitarian v. NSA, two class action challenges to the NSA's Terrorist Surveillance Program, followed up with a restraining order preventing the destruction of metadata.

Walton granted the NSA temporary relief from his order Tuesday, pending further order from the district court.

First Unitarian plaintiffs said Thursday that they never asked for an order preserving the NSA's telephone-records collection because the parties in the related case, Jewel v. NSA, already obtained one.

"Plaintiffs believed that it would be duplicative and unnecessary to immediately seek an additional evidence preservation order in First Unitarian," especially as the government has not yet answered the complaint, attorney Cindy Cohn of the Electronic Frontier Foundation wrote in the brief.

The government's arguments before the FISC, however, allegedly reveal that it took a narrow view of its duty to preserve evidence.

"The government's unduly limited interpretation of its preservation duties in Jewel raises the very concerning specter that the government has not sufficiently preserved telephone records evidence, and possibly has failed to preserve evidence going to other claims as well, contrary to this court's preservation order," Cohn wrote. "This is especially problematic since the government has asserted, in support of its dismissal motion, that plaintiffs lack sufficient evidence that their specific communications records were collected."

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.

Also Thursday, a group of computer scientists represented by EFF filed an amicus brief in the American Civil Liberties Union's lawsuit over the NSA's mass data collection.

The brief, signed by 17 professors at America's top universities, emphasized that the collection of metadata is a serious privacy concern.

"The call records collected by the government are not just metadata - they are intimate portraits of the lives of millions of Americans," according to the brief (emphasis in original).

The professors told the court: "The massive quantity of data the government has collected provides a window into the thoughts, beliefs, traits, habits, and associations of millions of Americans. The court should reject any contrary suggestion.

"Given the detailed portrait that can be drawn from metadata alone - and given the especially revealing nature of large quantities of metadata - the collection of this sensitive information requires the highest protection of law and the Constitution."

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