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FISA Court Rejects DOJ’s Request to Indefinitely Hold Metadata Collected by the NSA

Commentary Notes First Amendment
By Albert Chen – Edited by Sheri Pan In re Application of the FBI for an Order Requiring the Prod. of Tangible Things, No. BR 14-01 (FISA Ct. Mar. 7, 2014) Slip opinion [caption id="attachment_4220" align="alignleft" width="150"] Photo By: Playing Futures: Applied Nomadology - CC BY 2.0[/caption] On March 7, 2014, the Foreign Intelligence Surveillance Court (“FISA Court”) denied the government’s request to amend a January 3, 2014 FISA order (“Primary Order”) to indefinitely extend the five-year limit on retaining metadata collected by the National Security Agency (“NSA”). Id. at 12. The court reasoned that an indefinite retention period would violate privacy interests while failing to substantially improve national security. It rejected the government’s arguments that retention was necessary for it to meet its preservation obligations to plaintiffs in civil litigation suits involving the NSA. Ars Technica provides an overview of the case. Emptywheel and Techdirt provide commentary. The original order allowed the government to collect telephony metadata from certain telecommunications carriers, but specified “minimization procedures restricting the NSA’s retention and use of the . . . metadata, including a requirement that telephony metadata produced . . . be destroyed within five years.” Id. at 1–2. On February 25, the government requested an amendment to keep the metadata indefinitely, arguing that the five-year limit conflicts with its obligation to preserve evidence for civil litigations pending against the agency. Id. at 2. Judge Reggie Walton rejected the government’s motion, noting that the proposal would significantly increase the volume of information retained by the government on United States persons. Id. at 5–6. Increased retention would increase the risk that nonpublic information might be improperly used or disseminated. Id. at 6. The court also noted that indefinite retention of metadata does not help prevent international terrorism, the sole purpose of the Primary Order. Id. at 6. Quoting a previous statement by John Inglis, Deputy Director of the NSA, the court noted that the metadata “loses its foreign intelligence value after five years.” Id. at 7. The government mainly argued that allowing indefinite retention would allow it to meet its preservation obligations in pending lawsuits. The court rejected that argument, finding no past instances where the plaintiff has sought discovery or preservation of the metadata at issue, even though the five-year retention limit is public information. Additionally, indefinite retention would directly conflict with Congress’ express intentions to protect privacy interests — in section 1861, Congress required the NSA to comply with minimization requirements when collecting information on United States persons. 50 USC § 1861(g)(2) (2011). In response to the government’s concern that it may be sanctioned for destroying data relevant to lawsuits, the court reasoned that the NSA could easily provide notice to the plaintiff and court before reaching the five-year limit. The decision was a “win for civil liberties advocates,” wrote Ars Technica. Marcy Wheeler at Emptywheel commented that the decision is the first instance in which the FISA Court has limited the definition of “relevant,” which had previously appeared to encompass “virtually all,” as applied to data collection in the context of the War on Terror. Others, like Tim Cushing from Techdirt, were more critical. He remarked that the NSA has not previously raised concerns about meeting its preservation obligations in a 2008 lawsuit against the Electronic Frontier Foundation, where producing the data would hurt the NSA’s case. Although expanding the retention time period would marginally benefit the NSA, he opines, the agency’s ultimate goal is to prevent the data it has collected from ever being produced in court.