FISA: 215 Collection

FISC Rejects Government's Request to Retain Metadata Beyond Five Years

By Lauren Bateman
Saturday, March 8, 2014, 2:40 PM
FISC Presiding Judge Reggie B. Walton yesterday rejected the government's request to retain telephony metadata beyond five years.
On January 3, 2014, the FISC approved the government's request to collect telephony metadata from certain telecommunications carriers.  That order adopted the government's suggested minimization procedures, including the standard requirement that all metadata collected under the order be destroyed within five years.
The government recently re-approached the FISC seeking to extend the five year timeframe.  The rationale for doing so is not what you might expect: Since the government is being sued over Section 215 metadata collection, destruction of the records would, it contends, conflict with its obligation to preserve evidence pursuant to that litigation. And since it seeks to retain the metadata for only the limited purpose of evidence preservation, the government proposed to preclude NSA personnel from accessing those retained records for any purpose except to ensure the metadata's continued preservation.
Nevertheless, Judge Walton denied the request.
Section 215, he reasoned, only authorizes the government to collect business records pursuant to its need to collect foreign intelligence information.  The destruction of the metadata after five years, therefore, is compelled---not only is the information likely worthless for intelligence purposes after five years, it couldn't be valuable since the government wouldn't allow intelligence analysts to access it under their proposed modification.
As for the interests of the civil litigants in suits against the government, Judge Walton found that the government's construal of their desire to preserve the metadata was unsubstantiated.  There was no indication that any of the litigants had sought discovery of the metadata, and in nearly every suit the plaintiffs seek the substantive relief of destruction of those same records.
Judge Walton concluded that the Court is reluctant to take actions that could lead to improper adjudication of pending suits, so the motion was denied without prejudice to the government bringing additional facts or legal analysis to demonstrate the interest of the civil litigants in preserving the evidence.