NSA Record Preservation Order Partly Rescinded

OAKLAND, Calif. (CN) - A federal judge on Friday rescinded part of an order that requires the National Security Agency to preserve data culled from its dragnet surveillance of U.S. citizen phone records.

U.S. District Judge Jeffrey White rescinded the part of a preservation order he issued Thursday that related to section 702 of the FISA Amendment Acts.

White had ordered the government not to destroy any more records of its spying on U.S. citizens.

After an emergency hearing Friday afternoon in Oakland, White ruled from the bench that the court lacks evidence or legal authority to rule on the entirety of the government's challenge to the preservation order. To protect national-security interests, the court could not issue a ruling requiring the government defendants to preserve all evidence, White said.

Though he rescinded the order as it relates to section 702 of the FISA Amendment Acts, White maintained the order for the preservation for all other evidence in the case.

The judge ordered further briefing on the matter, which is what the government requested.

During the testy hearing, Electronic Frontier Foundation legal director Cindy Cohn, representing Carolyn Jewel and the other plaintiffs, accused the government of "unilateral reinterpretations of the preservation order."

When government attorney Anthony Coppolino said the United States had to "respectfully disagree as to who is involved in misdirection," Judge White stopped him short.

"We have excellent counsel," Judge White chided Coppolino, after telling him not to accuse the other side of falsehoods.

The government had argued that forcing it to destroy evidence would seriously endanger national-security interests, which White referred to as the "elephant in the room."

The EFF's request that the government be ordered to preserve evidence came after the EFF said it was surprised to learn that the government has been continuing to destroy evidence relating to the mass interception of Internet communications it is conducting under section 702 of the FISA Amendments Act even though the court explicitly ordered it to stop in March, EFF legal director Cindy Cohn said in a statement.

"Specifically, the government is destroying content gathered through tapping into the fiber optic cables of AT&T."

Judge White on Thursday ordered the government not to destroy any more materials and to file a brief responding to the EFF's charges.

This brief, filed at 1 p.m. Pacific Time Friday, said "it would be a gross distortion of the government's preservation obligations to require it to preserve all Section 702 material for purposes of this litigation."

The NSA claims that its databases are programmed to automatically purge raw data after the two- or five-year certification authorizing its collection has expired.

"Halting these purges and age-offs to preserve all Section 702 material, as we understand the court to have ordered, would require significant technical changes to these databases and systems and would have the effect of forcing NSA into non-compliance with FISC-approved minimization procedures, thus placing the entire program in legal jeopardy," the 19-page brief says.

The NSA also claims that demanding such substantial changes to the databases may require the agency to shut them down altogether.

"Such a shutdown would suspend acquisition of communications pursuant to Section 702 and analyst access to communications acquired under Section 702. NSA would lose access to what would be otherwise lawfully collected signals intelligence information on foreign intelligence targets that are vital to the performance of NSA's foreign intelligence mission," the brief states. "Section 702 is the most significant tool in NSA's arsenal for detecting, identifying, and disrupting terrorist threats to the United States and around the world. The impact of a shutdown of the databases and systems that contain Section 702 information cannot be overstated."

The NSA still disagrees with the plaintiffs over whether the complaint challenges NSA activity under Section 702, which authorizes targeted surveillance of non-U.S. citizens overseas, and is not a bulk collection program.

The brief also notes that the emergency motion requests the government to halt the very procedures put in place to ensure the NSA does not keep collected data forever, procedures intended to protect citizens' privacy.

"An order requiring the preservation of all Section 702 material would, ironically, abrogate the very protections put in place by the FISC to ensure that the NSA's upstream collection complies with the Fourth Amendment, all so that plaintiffs can attempt to show that it did not," the brief concludes.

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