NSA Weighs Retaining Data for Suits - Evidence Rule Would Lead to Expansion of Controversial Phone Program
NSA Weighs Retaining Data for Suits
Rule That Evidence Can't Be Destroyed Would Lead to
Expansion of Controversial Phone Program
By DEVLIN BARRETT and SIOBHAN GORMAN CONNECT
Feb. 19, 2014 7:32 p.m. ET
WASHINGTON—The government is considering enlarging the
National Security Agency's controversial collection of Americans' phone
records—an unintended consequence of lawsuits seeking to stop the surveillance
program, according to officials.
A number of government lawyers involved in lawsuits over
the NSA phone-records program believe federal-court rules on preserving
evidence related to lawsuits require the agency to stop routinely destroying
older phone records, according to people familiar with the discussions. As a
result, the government would expand the database beyond its original intent, at
least while the lawsuits are active.
No final decision has been made to preserve the data,
officials said, and one official said that even if a decision is made to retain
the information, it would be held only for the purpose of litigation and not be
subject to searches. The government currently collects phone records on
millions of Americans in a vast database that it can mine for links to terror
suspects. The database includes records of who called whom, when they called
and for how long.
President Barack Obama has ordered senior officials to
end the government storage of such data and find another place to store the
records—possibly with the phone companies who log the calls. Under the goals
outlined by Mr. Obama last month, the government would still be able to search
the call logs with a court order, but would no longer possess and control them.
National Security Agency Director Keith Alexander has
said the program, if it had existed in 2001, would have uncovered the Sept. 11
plot. Critics of the program, including the American Civil Liberties Union and
the Electronic Frontier Foundation, have sued the government, saying the
program violates the Constitution's Fourth Amendment protections against
unreasonable searches.
Patrick Toomey, an ACLU lawyer, said no one in the
government has raised with his group the possibility the lawsuits may actually
expand the database they call unconstitutional. "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,'' he said.
Cindy Cohn, legal director at the Electronic Frontier
Foundation, which also is suing over the program, said the government should
save the phone records, as long as they aren't still searchable under the program.
"If they're destroying evidence, that would be a crime," she said.
Ms. Cohn also questioned why the government was only now
considering this move, even though the EFF filed a lawsuit over NSA data
collection in 2008.
In that case, a judge ordered evidence preserved related
to claims brought by AT&T Inc. customers. What the government is
considering now is far broader.
"I think they're looking for any way to throw rocks
at the litigation," added Ms. Cohn. "To the extent this is a serious
concern, we should have had this discussion in 2008."
Another person who has filed a class-action suit over the
program is Sen. Rand Paul (R., Ky.). Mr. Paul's lawyer, former Virginia
Attorney General Ken Cuccinelli, called the approach under consideration "just
silly.'' He said he was sure his clients would be happy to agree to the
destruction of their phone records held by the government, without demanding
those records in pretrial discovery.
Federal courts have ruled that defendants in lawsuits
cannot destroy relevant evidence that could be useful to the other side.
Generally, those involved in lawsuits are expected to preserve records,
including electronic records, that could reasonably be considered relevant or
likely to be requested as part of pretrial discovery.
As the NSA program currently works, the database holds
about five years of data, according to officials and some declassified court
opinions. About twice a year, any call record more than five years old is
purged from the system, officials said.
A particular concern, according to one official, is that
the older records may give certain parties legal standing to pursue their
cases, and that deleting the data could erase evidence that the phone records
of those individuals or groups were swept up in the data dragnet.
The phone records program is overseen by the Foreign
Intelligence Surveillance Court, and any move to keep data past the five-year
period may require the blessing of that court.
If the records are retained, they may remain in
government computers for some time, because it could take years to resolve the
spate of litigation over the programs. A federal judge in New York has ruled
the program is legal, while a Washington, D.C., judge has ruled it almost
certainly isn't. There are several other pending cases, and other lawsuits
could yet be filed.
Government retention of old records has long been a major
concern for civil-liberties groups. The ACLU, in particular, has argued the
longer the government holds data about citizens, the deeper investigators can
delve into the private lives of individuals, and errors or abuses become more
likely.
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