Cultivated Compendium

The Foreign Intelligence Surveillance Court has reversed course on allowing the National Security Agency to retain phone call metadata for longer than five years in order to preserve evidence in civil lawsuits over governmental surveillance, The Hill reports. A "federal judge in San Francisco said the government could not destroy phone records after the five-year retention period expired," setting up a conflict with a prior ruling by F.I.S.C., The Hill further reports. Judge Reggie Walton said he was reversing course because the conflicting directions from the federal courts "'put the government in an untenable position and are likely to lead to uncertainty and confusion,'" according to The Hill.

Oregon has passed a bill that would allow school districts to receive the permission of American Indian tribes to use school mascots "that represent or are significant to the tribes," the Portland Tribune reports. The Oregon State Board of Education voted to prohibit public schools from using American Indian names, symbols or images as school mascots after July 1, 2017, the Tribune also reports.

The governor previously vetoed similar legislation because "he believed it created an overly broad exception to the State Board of Education’s decision to ban Native-themed mascots," the Tribune further reports. The legislation was changed to require that the board approves agreements reached between school districts and tribes.

The New York Times' Charlie Savage and Laura Poitras report on the evolution of the Foreign Intelligence Surveillance Court since the 9/11 attacks. Files leaked by Edward Snowden "help explain how the court evolved from its original task — approving wiretap requests — to engaging in complex analysis of the law to justify activities like the bulk collection of data about Americans’ emails and phone calls," they write. The court transformed from an adjudicator of surveillance applications to an interpreter of the law, Steven Aftergood, of the Federation of American Scientists, commented to The Times.

Among other revelations is that "the newly disclosed documents also refer to a decision by the court called Large Content FISA, a term that has not been publicly revealed before. Several current and former officials, speaking on the condition of anonymity, said Large Content FISA referred to sweeping but short-lived orders issued on Jan. 10, 2007, that authorized the Bush administration to continue its warrantless wiretapping program."

U.S. District Judge Jeffrey White of the Northern District of California blocked the federal government from destroying the telephone metadata collected by the National Security Agency, The Recorder's Julia Love reports. The move is just a temporary one until the court decides if the data must be preserved after full briefing and argument.

The emergency motion was brought by the Electronic Frontier Foundation. The Justice Department said it was going to begin clearing records today that were more than five-years-old, The Recorder said.

The Foreign Intelligence Surveillance Act previously ruled that governmental lawyers were under no obligation to hold telephone metadata beyond the current five-year limit. The FISA court reasoned: "The government can be sanctioned for destruction of evidence only if it is established that it had an obligation to preserve it at the time it was destroyed, that the records were destroyed 'with a culpable state of mind,' and the destroyed evidence was relevant to the party's claim or defense," according to a report in Computer World.

The Foreign Intelligence Surveillance Court rejected the request of governmental lawyers to hold telephone metadata beyond the current five-year limit, Computer World reports. The Department of Justice had reasoned the evidence would need to be preserved for privacy civil lawsuits challenging the constitutionality of the surveillance of phone calls. The court reasoned: "The government can be sanctioned for destruction of evidence only if it is established that it had an obligation to preserve it at the time it was destroyed, that the records were destroyed 'with a culpable state of mind,' and the destroyed evidence was relevant to the party's claim or defense," Computer World also reports.

The Connecticut General Assembly is considering a bill called the "look, listen but don't copy law," which would allow public access to homicide photos and 911 tapes to review them but not necessarily to get copies of them, the Connecticut Post reports. Family members of crime victims could cite an unwarranted invasion on their public privacy to block release of the records, then putting the onus on the public to show that there actually is no invasion, the Post reports.

Yesterday was the 50th anniversary of the New York Times v. Sullivan ruling, which led to greater protections for the media from being sued for defamation by public officials and public figures like celebrities, the Associated Press says. The "case applies equally to new media such as Twitter, Facebook and blogs," AP further reports. First Amendment lawyer Bruce W. Sanford told AP that there may be fewer libel cases because the Sullivan rule is widely accepted and because there's a greater opportunity to respond to untruths in the digital world.

The Indianapolis Star reports that four same-sex couples have filed a federal lawsuit to challenge the state's statutory ban on same-sex marriage. The "lawsuit mirrors the challenge in Kentucky that last month prompted a federal judge to order that state to recognize same-sex marriages legally performed elsewhere," The Star further reports.

Indiana's ban on same-sex marriage is statutory, not constitutional. A state constitutional ban is under consideration by the legislature, but that measure won't go to voters until at least 2016.

Two new reports from the Centers for Disease Control and Prevention shows the danger of overprescribing antibiotics and narcotics to patients, ProPublica reports. In ProPublica's interview with Dr. Thomas Frieden, the CDC's director, he said that attempts by government to address overprescribing don't attack doctors' autonomy: "We're not saying tell doctors what to do and not to do. We’re not saying treat this way. We’re saying make explicit your reasoning and set up your protocol, as long as it’s evidence-based. What we’re basically saying is we need to reduce unwarranted variability. So, come up with an algorithm, come up with a protocol, and then stick to it unless you have a valid and documented reason to depart from it. I don’t think that undermines physician autonomy at all. I think that empowers doctors to make a considered evidence-based decision on what their policy will be as a general rule and then to increase the likelihood that that policy is followed for all of their patients."