Court Rejects NSA Bid to Hold Phone Data Longer

The ruling is a rare defeat for the spy agency.

National Journal
Brendan Sasso
March 7, 2014, 11:16 a.m.

A fed­er­al sur­veil­lance court has re­jec­ted the Obama ad­min­is­tra­tion’s bid to hold onto mil­lions of phone re­cords bey­ond the cur­rent five-year lim­it.

The rul­ing is a rare re­buke for the gov­ern­ment from the se­cret­ive For­eign In­tel­li­gence Sur­veil­lance Court. The court has re­jec­ted less than 1 per­cent of gov­ern­ment spy­ing re­quests over the past 30 years.

But Judge Reg­gie Walton said he found the Justice De­part­ment’s ar­gu­ment for ex­tend­ing the re­ten­tion of phone re­cords “simply un­per­suas­ive.”

Gov­ern­ment law­yers had ar­gued that they needed to re­tain the data as evid­ence for the slew of pri­vacy law­suits filed in the wake of Ed­ward Snowden’s leaks about Na­tion­al Se­cur­ity Agency sur­veil­lance. The Amer­ic­an Civil Liber­ties Uni­on, the Elec­tron­ic Fron­ti­er Found­a­tion, and oth­er groups are su­ing to shut the pro­gram down, claim­ing it vi­ol­ates the con­sti­tu­tion­al rights of mil­lions of Amer­ic­ans.

In a fil­ing with the court last month, the Justice De­part­ment said the gov­ern­ment has a “duty to pre­serve” the phone re­cords that over­rides oth­er ob­lig­a­tions. The gov­ern­ment said it would pre­serve the data in a format that would pre­vent NSA ana­lysts from ac­cess­ing it.

“The United States must en­sure that all po­ten­tially rel­ev­ant evid­ence is re­tained,” the Justice De­part­ment wrote in its fil­ing.

But the fed­er­al judge noted that none of the pri­vacy groups have tried to force the NSA to hold onto the data for their law­suits. He wrote that the groups are seek­ing “the de­struc­tion of the [tele­phone] metadata, not its re­ten­tion.”

Walton con­cluded that there is no leg­al re­quire­ment for the NSA to re­tain the data, and that any mo­tiv­a­tion for re­tain­ing the re­cords is out­weighed by the pri­vacy harm. 

“The amended pro­ced­ures would fur­ther in­fringe on the pri­vacy in­terests of United States per­sons whose tele­phone re­cords were ac­quired in vast num­bers and re­tained by the gov­ern­ment to aid in na­tion­al se­cur­ity in­vest­ig­a­tions,” he wrote. 

The data in­cludes phone num­bers, call times, and call dur­a­tions for mil­lions of U.S. phone calls — but not the con­tents of any com­mu­nic­a­tions.  

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