FISA Court Shuts Down DOJ's Attempt To Hold Onto Section 215 Metadata Indefinitely

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The DOJ contended it had a “duty” to preserve evidence — a duty that supposedly superseded the destruction requirements of the metadata collection.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.]

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Comments on “FISA Court Shuts Down DOJ's Attempt To Hold Onto Section 215 Metadata Indefinitely”

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Ninja (profile) says:

Surprising and yet depressing. The whole collection thing is unconstitutional no matter how you picture it and it has been abused ad nausean already. They even collected data on the very ELECTED officials that are overseeing them.

If there isn’t enough evidence that these bulk collection things should be scrapped then may God watch upon us when the new Stasi kicks in.

That Anonymous Coward (profile) says:

When the very tenets the country are founded on are tossed aside in secret, one has to wonder where those who are supposed to represent us are.
Perhaps all of the complaints about “activist” judges are really a sign that the system is broken on basic levels. That the rule of law has been perverted so far beyond what ever was intended, and rather than put the rights of citizens first the rights of corporations to gather unlimited, unrestricted data all while wrapped up in the flag of stopped “terrorism” needs to ring much more hollow.
Perhaps it really is time that those charged with stopping these abuses of the system themselves face charges.

What they have allowed to happen in the name of stopping terrorism has made them much worse than the terrorists. I have greater fear of what the Government or its corporate sponsors are doing with this data than any fear that some nutter with a gun might do. We are funding the people terrorizing us and this is the height of insanity.

This Anonymous Coward says:

Re: Re:

“What they have allowed to happen in the name of stopping terrorism has made them much worse than the terrorists.”

Well said. Osama Bin Laden did so much more damage than simply bringing two buildings down. Through this act, he managed to influence the US government so they’d do all the work for him. Though I’m loathe to say it, I can’t help but wonder if he was a mad genius and that this was his plan all along.

That Anonymous Coward (profile) says:

Re: Re: Re: Re:

One merely needs to look at the history of the country and how it responds to these sorts of things to be able to see how to exploit it.
Knee-jerk reactions that are not well thought out are our specialty.
Giving people who want more power more power always works out well.
Then add that the systems are gameified rewarding them doing anything and punishing them for not needing all of the money we allotted as this might change the outcome. So they always find more to spend the money on, so they can get more.

They called us tinfoil hat wearing crazies, but now we look like the smart ones.

Guardian says:

ya cause a dead cave dweller .....

ya cause a dead cave dweller , later found ina paki vila already tied up doing movies for the cia ….would be able to mastermind all this bullshit

nope its the nazis back in charge go look at all the histories of people in charge my friends.

be prepared to be disgusted as you pry open the veil

John Fenderson (profile) says:

Re: ya cause a dead cave dweller .....

“ya cause a dead cave dweller , later found ina paki vila already tied up doing movies for the cia ….would be able to mastermind all this bullshit”

Why not? It’s not like the actual attack took anything like genius. It, like all good plans, was simple and straightforward. What it took was vision.

“be prepared to be disgusted as you pry open the veil”

I think it’s funny when the people assert that there exists some kind of large, unlikely conspiracy — but then just drop the ball and say “look into it.” If it were so obvious, it should be possible to provide some sort of citation, if not evidence.

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