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Justice Department asks to keep phone records longer as evidence in anti-NSA lawsuits

Justice Department asks to keep phone records longer as evidence in anti-NSA lawsuits

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The Obama administration is asking permission to hold onto the NSA's database of phone records for longer than five years because of lawsuits from the EFF, ACLU, and others, The Wall Street Journal reports. In a request to the Foreign Intelligence Surveillance Court, the Department of Justice asked for permission to keep records that would otherwise need to be purged, arguing that it must keep them in order to comply with laws against destroying evidence. Last year, the EFF and many other groups filed suit against the Obama administration for collecting phone metadata in bulk, and the ACLU is currently appealing a defeat in federal court over the issue. The Department of Justice, meanwhile, is appealing its own loss in a separate district.

The Journal reported on the possibility of this request last week, citing officials' concerns that these records could prove relevant in the cases. One of the biggest problems, for example, has been proving that anyone who brings a suit has actually been the subject of surveillance. If old records are purged and new ones aren't collected, groups with legitimate complaints could be unable to defend them. Complicating this, however, is the fact that the administration has given up virtually no data about who is being watched over the course of these lawsuits. Purging records might destroy evidence, but it's not clear how groups like the ACLU will get access to it if it's kept.

Under the request, the information wouldn't simply be kept in the same state it's in now. It would be preserved in government computers, but NSA analysts would not be able to query it, theoretically minimizing the possibility of privacy violations. In a statement given last week, the EFF agreed that the government should save the phone records as long as they would be unsearchable, but legal director Cindy Cohn expressed skepticism that the government was doing more than looking for a way to "throw rocks at the litigation."

As this request is being made, the administration is also weighing the long-term future of the phone surveillance program. Obama has promised to end the practice of storing records in an NSA database, but he has held off on announcing a specific course, opting to ask for recommendations from the intelligence community. The program's data could instead be held by phone companies or another third party, or the program itself could be abolished, with agencies instead relying on other laws to subpoena individual records.

Update: ACLU legal director Jameel Jaffer has issued a statement on the request:

This is just a distraction. We don't have any objection to the government deleting these records. While they're at it, they should delete the whole database.

Update 2: EFF staff attorney Mark Rumold says the group was never approached about the changes:

We agree with the government in principal that they're under an obligation to preserve evidence, but we're a bit confused as to why this filing in the FISC and inquiries from the press are the first we've heard about the issue. They never approached us to discuss it, but we would certainly be open to discussing a reasonable solution. But it's disheartening to see the government try to hold the privacy of all Americans hostage to score PR points.

Making matters worse, they've been under court order to preserve evidence in the MDL and, subsequently, Jewel since 2007. We've gotten no indication that they've complied with that order.