New FISC Order On Retention of Metadata

By Lauren Bateman
Wednesday, March 12, 2014, 9:11 PM
On Monday, we reported on the temporary restraining order (TRO) issued by Judge Jeffrey S. White of the Northern District of California, which prohibited the government from destroying telephone metadata collected by the NSA, pursuant to Section 215 of the Patriot Act.  The idea was to preserve the metadata, as evidence for potential use in pending civil suits against the government. That TRO conflicted with a March 7 Foreign Intelligence Surveillance Court (FISC) order, the minimization provisions of which had required disposal of metadata after five years.

Consequently, the government approached the FISC yesterday, both to notify the FISC of the TRO and to again seek relief---FISC Presiding Judge Reggie B. Walton had refused an earlier request in this respect--=from the metadata destruction requirement. The government explained that it desired to retain the metadata "solely for non-analytic purposes pending resolution of [evidence] preservation issues."

Shortly after receiving this most recent request, Judge Walton granted it. By issuing the TRO, he wrote, "the District Court [in California] has directly prohibited NSA from doing what the FISC has ordered it to do;" the incompatible directives "put the government in an untenable position and are likely to lead to uncertainty and confusion among all concerned."  The FISC therefore authorized the government to retain the metadata pending resolution of the evidence preservation issues currently being litigated in the Northern District of California.
Moreover, Judge Walton ceded jurisdiction over future requests by the government to access metadata for civil litigation purposes to the courts before which those matters are pending.  Instead of requiring prior approval by the FISC, the government need only provide the FISC with written notice of access.