The court in charge of overseeing NSA surveillance has nixed a plan to keep American phone records in government databases for longer than five years. In an opinion published today, Judge Reggie Walton said that privacy protection laws overrode the government's argument that it needed to retain evidence for EFF and ACLU lawsuits, denying a request that the Department of Justice made in February. Such a move "would further infringe on the privacy interests of United States persons whose telephone records were acquired in vast numbers and retained by the government," said Walton. "The government seeks to retain these records, not for national security reasons, but because some of them may be relevant in civil litigation in which the destruction of those very same records is being requested."
The groups that might need the NSA's evidence don't actually want it
The FISA court, which made this ruling, has previously decided that the NSA can collect phone metadata in bulk but must destroy it after five years. The Department of Justice, however, pointed to a ban on destroying evidence that was pertinent to a court case. By that estimation, since the ACLU, EFF, and others have filed suit over the phone record database, that made it illegal to purge the records. It promised, however, to make the records unsearchable by NSA agents, ostensibly resolving privacy concerns.
This argument, however, didn't convince the court. One point of contention was that the actual parties involved have expressed mostly confusion over the plan. In February, ACLU legal director Jameel Jaffer called the move a "distraction" from the real issues. "We don't have any objection to the government deleting these records. While they're at it, they should delete the whole database." EFF attorney Mark Rumold, meanwhile, agreed "in principle" with the government's request, but he expressed doubt it was acting in good faith. "It's disheartening to see the government try to hold the privacy of all Americans hostage to score PR points," he said.
In short, the groups that would be benefiting from having evidence retained didn't necessarily want it, and the Department of Justice made only a perfunctory case for keeping it. "The government makes no attempt to explain why it believes the records" are relevant, said Walton. The rules for collecting data, meanwhile, are clear about the fact that it can only be kept for national security investigations. Granted, these rules have been very liberally interpreted in the past — the fact that all phone records are considered "relevant" to an investigation, for example, is highly controversial. But the court found that maintaining the database for a civil lawsuit didn't fit the bill.
So why did it want the phone records in the first place? Walton said the request seemed to be motivated by "fear" that judges might censure it for destroying evidence, although he called that outcome "far-fetched." As the EFF's statement above implies, however, it's possible it's also an attempt to demonstrate that suing over an allegedly unconstitutional invasion of privacy will only cause more privacy violations.