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.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.
"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."
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.