from the not-much-'justice'-over-at-the-DOJ dept
As we recently covered, the DOJ asked the FISA court to extend the disposal deadline of phone metadata from the usual five years to an indefinite period of time, supposedly in order to preserve evidence it might need to present in lawsuits filed against the government. (Not that the DOJ has any intention of ever turning this information over, no longer how long the NSA holds onto it…) Somewhat surprisingly, (outgoing) FISC judge Reggie Walton has turned the DOJ's request down.
The DOJ contended it had a "duty" to preserve evidence -- a duty that supposedly superseded the destruction requirements of the metadata collection. Judge Walton calls the DOJ out for this claim ("the Court rejects this premise"), but more damningly, calls bullshit on the DOJ's citations.
The government cites three cases in support of its position: Inc. v. So, 271.R.D. 13 (S.D.N.Y. 2010), Richard Green (Fine Paintings) v. McClendon, 262 F.R.D. 284 (S.D.N.Y. 2009), and Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004). Although the destruction of electronic records was an issue in all three cases, R.F.M.A.S. at 40; at 287-88; Zubulake at 434, none of these cases involved a conflict between a litigant's duty to preserve electronic records and a statute or regulation that required their destruction. They merely demonstrate that, when triggered, a civil litigant's duty to preserve relevant evidence includes electronic records and that duty trumps a corporate document destruction policy. The Court has not found any case law supporting the government's broad assertion that its duty to preserve supersedes statutory or regulatory requirements.So, that's the DOJ's "legal basis" for the indefinite retention of bulk metadata: preservation of evidence statutes governing private entities. It somehow hoped to treat the FISA court as nothing more than a regulatory speed bump rather than the fine line between national security and outright civil liberty abuse. The FISA court points out that what it's asking for is much more significant than it seems to realize. As Walton reminded the NSA in one of his earlier court orders, without the minimization procedures in place, the Section 215 collection would be unconstitutional.
In other words, nearly all of the call detail records collected pertain to communications of non-U.S. persons who are not the subject of an FBI investigation to obtain foreign intelligence information, are communications of US. persons who are not the subject of an FBI investigation to protect against international terrorism or clandestine intelligence activities, and are data that otherwise could not be legally captured in bulk by the government.These are the same call records the DOJ wants to hold indefinitely, and its only justifications aren't even relevant to the data in question, as Judge Walton points out:
In sharp contrast with the document retention policies of corporations, the restrictions on retention of United States person information embodied in FISA minimization procedures are the means by which Congress has chosen to protect the privacy interests of United States persons when they are impacted by certain forms of intelligence gathering.Walton points out the danger of granting the DOJ this extension, saying doing so would "significantly increase" the chance of the retained metadata being improperly used or disseminated. There is little doubt the NSA would have enjoyed an indefinite extension on the destruction data, given the "collect it all" proclivities of its various directors. But the DOJ's argument is ultimately empty.
The argument is also highly suspect. As noted in our earlier story, the DOJ made no similar effort to retain data pertaining to a 2008 lawsuit with the EFF -- data which would have been disposed of in 2013. This data likely wouldn't have helped the DOJ, or at the very least, would have resulted in a long legal battle to keep it hidden.
With that in mind (and being naturally cynical), it's tempting to view the DOJ's weak effort to hold onto the data as a deliberate ploy to help it keep this metadata from ever appearing in court. Having this granted would have been a small win for the NSA, which could then hold onto data presumably forever. But old data isn't nearly as useful as fresh data, as the NSA knows. The bigger win would be the disposal of data related to lawsuits. The FISA court shooting down this request means that, if the NSA/DOJ buy enough time, the metadata will never appear in court.
The government seems to be dealing itself a lot of winning hands in the ongoing NSA debacle, leaving the surveilled public damned with both do's and don'ts.
[Also worth a read is Marcy Wheeler's coverage of this decision over at Emptywheel, where she points out that this is possibly the first time the FISA court has actually attempted to establish a limit on what the government finds "relevant" to its War on Terror.]