District Court Orders NSA To Hold Onto Metadata, Directly Contradicting Recent FISC Disposal Order

from the a-house-divided-against-itself dept

Well, this is interesting. No sooner had FISC judge Reggie Walton shot down the DOJ's request to hold Section 215 metadata indefinitely (supposedly to preserve evidence related to ongoing lawsuits) then another judge has ordered the NSA to preserve this same data as evidence related to two lawsuits the agency is currently engaged in.

U.S. District Court Judge Jeffrey White issued the order Monday afternoon California time in response to requests from plaintiffs in two lawsuits challenging the lawfulness of the NSA surveillance.

"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," White wrote in his two-page order. "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."
As we pointed out earlier, either way this goes, the NSA wins. If it holds onto the data, it gets to play around with the info for long past the 5-year expiration date. If it's told to destroy it (as Reggie Walton instructed), it gets to toss out evidence it had no intention of ever allowing into a public courtroom.

This may set up a showdown of sorts, but it's tough to see how a district court will be able to override the direct order given by the court that directly grants permission to the NSA to collect and store this metadata. The government can appeal either order, so it will be very enlightening to see which one it chooses to dispute. Chances are the appeal will go smoother in district court as Reggie Walton made it crystal clear that extending the expiration date puts the program on unconstitutional footing.

In order to keep from showing its hand, the NSA simply needs to do nothing and let someone else, possibly the administration itself, sort it out. Or it may decide segregating relevant metadata is above its pay grade and appeal the newest decision, allowing it to dispose of evidence it doesn't want to expose.

Briefs are due to be filed in the next few days and the government's arguments should prove to be an entertaining read, especially if it attempts to argue that it should destroy the past-due records, directly contradicting the DOJ's earlier request to retain it.

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  • identicon
    Anonymous Coward, 11 Mar 2014 @ 7:57am

    The obvious pro-privacy solution

    1) Require the NSA to dispose of the metadata on the schedule ordered by FISC.
    2) Inform the NSA that if it fails to provide the metadata in the privacy lawsuits, the judge will draw an adverse inference from it, so if the NSA wants to use the metadata in its defense, it must do so before the disposal. If, as the Techdirt authors rightly suspect, the NSA has no intention of actually using the metadata in its defense, then the adverse inference is positive for privacy whether or not the lawsuit proceeds before the disposal happens.

    reply to this | link to this | view in chronology ]

  • identicon
    spodula, 11 Mar 2014 @ 9:02am

    Not nesseserilly.

    The order above only relates to data directly related to this investigation. It doesn't affect the majority of the data scheduled for deletion.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Mar 2014 @ 9:13am

      Re: Not nesseserilly.

      Just because the judge intended for it to only be for the cases before the court doesn't mean they won't use it as an excuse to save everything.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Mar 2014 @ 12:02pm

    I'm pretty sure the DOJ doesn't want to 'officially' be ordered to hold onto evidence, seeing as all these lawsuits against bulk unconstitutional spying are being brought against them in courts across the country.

    Justice Walton's comment about retaining evidence past 5 years, causing bulk collection onto unconstitutional footing is also irrelevant. Bulk unconstitutional spying has always been on unconstitutional footing, since it's inception.

    This is simply the DOJ trying to weasel it's way out of having evidence used against it, in the court of law. Such as Larry Klayman's case currently on appeal, and quite possibly on it's way to the Supreme Court.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Mar 2014 @ 12:35pm

    We must meet our national obligations, only when it serves the interests of monopolists (ie: Hollywood). Otherwise who cares about international obligations, right?

    reply to this | link to this | view in chronology ]

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