National Security Agency

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.

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 National Security Agency needs to keep phone-call metadata longer than the five-year limit in order to preserve evidence for the civil lawsuits challenging the legality of surveillance, the Justice Department said in a court filing Wednesday, The Hill reports. "'The United States must ensure that all potentially relevant evidence is retained,'" government lawyers said, according to The Hill. The government does say the records would be kept for "non-analytical purposes."

Parties in litigation have a duty under federal court rules not to destroy evidence. This obligation may be leading the National Security Agency to expand its phone call metadata program in order to preserve evidence as litigants like the American Civil Liberties Union and the Electronic Frontier Foundation sue to stop the surveillance of most of the phone calls made in America, the Wall Street Journal reports. No final decision has been made by the NSA yet, but governmental lawyers believe the obligation not to destroy evidence would require the practice of destroying phone records older than five years, WSJ reports. One source told the WSJ that, if the information was retained, it would be held only for the purpose of litigation. Deleting the data could mean that parties would lose their legal standing to pursue their cases.

James Risen and Laura Poitras report for the New York Times that Mayer Brown, while representing Indonesia in trade talks, might have been spied upon by the National Security Agency and its overseas partner. A February 2013 document "reports that the N.S.A.’s Australian counterpart, the Australian Signals Directorate, notified the agency that it was conducting surveillance of the talks, including communications between Indonesian officials and the American law firm, and offered to share the information." The Directorate advised that attorney-client privilege could cover some of the information, The Times reports.

The Times also reports that there is only so much protection that the attorney-client privilege affords from NSA surveillance: "The N.S.A.’s protections for attorney-client conversations are narrowly crafted, said Stephen Gillers, an expert on legal ethics at New York University’s School of Law. The agency is barred from sharing with prosecutors intercepted attorney-client communications involving someone under indictment in the United States, according to previously disclosed N.S.A. rules. But the agency may still use or share the information for intelligence purposes."

Orin Kerr, writing over at The Washington Post's Volokh Conspiracy, struck a cautionary note: "It seems to me that  the story here isn’t ‘NSA helped spy on U.S. lawyers.’ Rather, the story here is more like ‘Australian government obtained legal guidance from NSA General Counsel’s Office on what to do when Australian monitoring of a foreign government includes attorney/client communications between the government and its U.S law firm.’"

"The collection of phone records by the National Security Agency has no basis in the law, a member of an independent federal advisory board said Wednesday," The Hill reported on a Congressional hearing yesterday in which members of the Privacy and Civil Liberties Oversight Board testified. The Hill further reported: "'With all respect to both executive branch officials and judicial officials, nobody looked at the statute as carefully was we did,' James Dempsey, the vice president for public policy at the Center for Democracy & Technology, told members of the Senate Judiciary Committee."
 

President Obama finally weighed in on where the line should be drawn between surveillance and privacy in a speech today. The New York Times reports: the president "will require intelligence agencies to obtain permission from a secret court before tapping into a vast storehouse of telephone data, and will ultimately move that data out of the hands of the government."

The president also said surveillance of foreign leaders will be curtailed.

The president also suggested the creation of a "panel of advocates on privacy and technology issues who would appear before the Foreign Intelligence Surveillance court." The Times reports that the advocates would only appear in novel cases, but it's unclear who would decide which cases are novel.

The Atlantic has this piece arguing that continuing to rely upon the U.S. Supreme Court precedent in Smith v. Maryland to justify the NSA's mass surveillance of phone calls in the USA no longer makes sense. The case involved the use of a pen register to investigate a burglar-stalker who allegedly made obscene phone calls to a crime victim, and the U.S. Supreme Court ruled that "a search only occurs when a citizen has a reasonable expectation of privacy" (which in Smith was not the case for phone calls made by a burglar from his home phone), The Atlantic further reports. Smith, cited by the Southern District New York decision upholding the NSA's surveillance of telephone metadata, is out-of-date for where technology now stands: "At the time Smith v. Maryland was decided, the courts did not anticipate this seemingly absurd result [of massive surveillance], in part because the case was decided prior to the era of cheap data storage, modern computing power, and sophisticated network analysis," The Atlantic concludes.

A federal judge in New York has issued a conflicting ruling with that of a federal judge in D.C. over the legality of the National Security Agency's surveillance of nearly every phone call made in America, CNN reports: "In his ruling Friday, U.S. District Judge William Pauley said the NSA's bulk collection of phone records under Section 215 of the Patriot Act was legal. The program was revealed in classified leaks by former NSA contractor Edward Snowden."