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Friday, July 12, 2024 | Back issues
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Shelf Life of NSA Surveillance Records Splits Judges

(CN) - The National Security Agency cannot destroy telephone-metadata records since they are evidence in civil litigation, a federal judge ruled Monday, though the Federal Intelligence Surveillance Court said Friday that the government could not hold onto such records for more than five years.

In seeking to modify a requirement that it destroy all telephony metadata within five years, the NSA had cited the "preservation obligations in connection with civil litigation pending against it."

Several groups including the American Civil Liberties Union and the Electronic Frontier Foundation have filed civil complaints to end what they call the NSA's "dragnet" surveillance of its citizens. Former NSA contactor Edward Snowden exposed the surveillance this past June and has been granted asylum in Russia.

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Surveillance Court, ruled Friday that "the government's contention that FISA's minimization requirements are superseded by the common-law duty to preserve evidence is simply unpersuasive."

Congress designed the data-destruction guidelines of the Foreign Intelligence Surveillance Act to minimize the retention of information regarding nonconsenting U.S. citizens who are not suspected of any crime.

"Given the scope of the production under the court's orders, the number of records is likely voluminous and they undoubtedly contain United States person information, including information concerning United States persons who are not the subject of an FBI investigation to protect against international terrorism or clandestine intelligence activities," Walton wrote.

Since there are six civil cases pending against the government related to its surveillance programs, the government's request would let it keep surveillance records indefinitely, according to the ruling.

"Extending the period of retention for these voluminous records increases the risk that information about United States persons may be improperly used or disseminated," Walton wrote.

Despite that ruling, the judge presiding over one of the cases against the government, Jewel v. NSA, entered a temporary restraining order achieving the opposite effect Monday.

"It is undisputed that the court would be unable to afford effective relief once the records are destroyed, and therefore the harm to plaintiffs would be irreparable," U.S. District Judge Jeffrey White wrote. "A temporary restraining order is necessary and appropriate in order to allow the court to decide whether the evidence should be preserved with the benefit of full briefing and participation by all parties."

White emphasized "any telephone metadata or 'call detail' records" as potential evidence that the defendants must not destroy.

"The court determines that there is no security necessary under the circumstances," he added.

In upholding the five-year destruction order, Judge Walton cited testimony former NSA Deputy Director John Inglis gave before Congress.

"It is clear the proposed retention of the BR metadata beyond five years is unrelated to the government's need to obtain, produce, and disseminate foreign intelligence information," Walton wrote. "This conclusion is compelled because the BR metadata loses its foreign intelligence value after five years."

The government cited no foreign intelligence reason for preserving the records beyond five years, only the purported interests of civil litigants, without explaining why the records might be relevant to that litigation, the court found.

"To date, no district court or circuit court of appeals has entered a preservation order applicable to the BR metadata in question in any of the civil matters cited in the motion," Walton wrote. "Further, there is no indication that any of the plaintiffs have sought discovery of this information."

Walton noted that the NSA asked for the extension out of concern that it may be sanctioned in future litigation for destroying metadata.

But the privacy interests of innocent U.S. citizens weigh more heavily than this "far-fetched" possibility, the 12-page opinion states.

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