Unnamed United States government officials have apparently told the Wall Street Journal that the National Security Agency might have to expand its “collection” of Americans’ phone records because people are suing the government to stop what they consider to be intrusive and unconstitutional surveillance.
This idea being floated in a major national newspaper is the first that any lawyer involved in cases against the government have heard this wild argument. Is it some kind of ham-handed attempt to help the NSA retain control of the phone records?
What government lawyers happen to believe, suddenly, is that federal court rules for preserving evidence “related to lawsuits require the agency to stop routinely destroying older phone records.” So, in theory, they should store more data on Americans while lawsuits are pending because they can’t destroy “evidence.”
Cindy Cohn, legal director for the Electronic Frontier Foundation, which has filed a lawsuit over the phone records collection program under the PATRIOT Act, questioned why the government was just now “considering this move.” EFF has had a lawsuit over NSA surveillance since 2008. “I think they’re looking for any way to throw rocks at the litigation…To the extent this is a serious concern, we should have had this discussion in 2008,” Cohn added.
What Patrick Toomey, an ACLU lawyer involved in also suing the government over the program, said is “it’s difficult to understand why the government would consider taking this position, when the relief we’ve requested in the lawsuit is a purge of our data.”
The EFF lawsuits involves a coalition of organizations, which allege the NSA is violating their First Amendment right of association by “illegally collecting their call records.”
In that case, the government has argued plaintiffs do not have “standing” for the suit. The Foreign Intelligence Surveillance Court considers the collection to be “lawful.” The Court has never decided that collection violates the Fourth Amendment, and the plaintiffs are not entitled to details of “intelligence-gathering activities that could undermine the government’s compelling interest in preventing terrorist attacks.”
The government has also called allegations that calls could be “used to glean the identities” of associations’ members, constituents and others who wish to associate an allegation that is “attributable to misperceptions and conjecture about the government’s activities, but not one fairly traceable to the government’s actual conduct.”
In the ACLU lawsuit, the government has made similar arguments. It has argued, “Even if the government’s conduct implicated a protected Fourth Amendment interest, the bulk collection of telephony metadata would be ‘reasonable’ and permissible in light of the strong national interest in preventing terrorist attacks, and the minimal intrusion on individual privacy.”
A federal judge in December 2013 defended the government’s interest in maintaining secrecy and dismissed the ACLU’s lawsuit. The ACLU has now appealed.
Recently, Sen. Rand Paul filed a lawsuit against the government. Lawyer in the case, former Virginia Attorney General Ken Cuccinelli, said what the government is suggesting it may do is “just silly.” He even said he thought destroying phone records the government had “without demanding those records in pretrial discovery” would be acceptable to his clients.
Federal judge Richard Leon ruled, also in December, that the program did, in fact, infringe upon privacy and was “likely unconstitutional.” That case was brought by Larry Klayman of Judicial Watch. The government has appealed the decision.
Why the government would need to make this argument now is very unclear and seems ill-conceived, but journalist Marcy Wheeler points out that the government has made this argument before to the FISA Court.
EFF has another lawsuit filed in 2008 to “stop the warrantless wiretapping and hold the government and government officials behind the program accountable. A federal judge actually ruled in July 2013 that the government could not use the “state secrets privilege” to block a challenge to the constitutionality of the program. (It’s what Cohn is probably referring to in her comments to WSJ.)
Wheeler asks, “If the NSA is so cautious about retaining evidence in case of a potential crime, then why did it just blast away the 3,000 files of phone dragnet information they found stashed on a random server, which may or may not have been mingled in with STELLAR WIND data it found in 2012?”
The Privacy and Civil Liberties Oversight Board described the data and its destruction like this:
In one incident, NSA technical personnel discovered a technical server with nearly 3,000 files containing call detail records that were more than five years old, but that had not been destroyed in accordance with the applicable retention rules. These files were among those used in connection with a migration of call detail records to a new system. Because a single file may contain more than one call detail record, and because the files were promptly destroyed by agency technical personnel, the NSA could not provide an estimate regarding the volume of calling records that were retained beyond the five-year limit.
This seems like “evidence” the government lawyers would want to protect for lawsuits like the one being brought by EFF. But, as Wheeler notes, this evidence of illegal surveillance is “all gone.”
Perhaps, the appropriate response from EFF and the ACLU is to go to court and express concern that the government has, up until this point, not been preserving evidence of possible illegal or unconstitutional surveillance in this program.
What else have technical personnel discovered and deleted that is relevant to pending lawsuits, which aim to protect Americans’ privacy?