A database of millions of Americans' phone records that has been at the center of a national debate on government spying is going to be around for a while -- and getting bigger.
A judge on the Foreign Intelligence Surveillance Court, which oversees the controversial phone records collection program run by the NSA, ruled earlier this week that the government can keep those records longer than five years after their initial collection, which is the point at which they were supposed to be destroyed. The reason is to preserve the records as potential evidence in any one of a half dozen civil lawsuits currently pending against the government, including those brought by the American Civil Liberties Union and a conservative public interest lawyer, whose plaintiffs have been arguing for months that the program is illegal and that the government shouldn't be collecting the phone records at all.
Now, that database will include phone records that are older than five years -- not exactly the outcome that critics of the NSA program were hoping for. A dramatic series of legal maneuvers, which have not been previously reported, led the outcome. They show that the the phone records program has posed difficult legal and policy challenges for the Obama administration, which is still debating who should be the ultimate custodian of the massive databases, the NSA, the telephone companies from which the government obtains the records, or some other party.
The NSA says that the information, often referred to as metadata, is used to find connections among suspected terrorists based on their phone calling patterns. But many critics are concerned that the information could reveal intimate personal details about innocent Americans, including their medical history, travel patterns, and finances.
Despite the new ruling, the government will be prohibited from using those phone records that are older than five years for any intelligence analysis or investigations. But the records will still be in the government's hands, and for the time being, the NSA's. If history is a guide, the civil suits in which the phone records might be used as evidence could take years to resolve. That, in turn, means the records will remain under the government's control well into the future.
Justice Department and NSA officials had been contemplating for months whether to retain the phone records as potential evidence in the civil suits, according to U.S. officials involved in the discussions. On February 25, the Justice Department filed a motion with the Foreign Intelligence Surveillance Court asking to keep the records longer than five years. "[T]he United States must ensure that all potentially relevant evidence is retained which includes the [phone records] metadata obtained in bulk from certain telecommunications service providers," department lawyers told Judge Reggie Walton.
It can take as little as a day for the intelligence court to issue rulings, but in this case, Walton deliberated for ten days. On Friday, March 7, he denied the department's motion, finding that since none of the plaintiffs in the civil suits had asked a court to protect the phone records from being destroyed, he had no basis for overriding the five-year rule.
The same day, lawyers for the Electronic Frontier Foundation read Walton's ruling and wondered why he didn't acknowledge an order to preserve records that the group had sought in another lawsuit over government surveillance, Jewel v. NSA. At the same time, Justice Department lawyers sent word to all the plaintiffs in the civil cases, alerting them that unless someone tried to stop it, the government would soon start destroying records, said a Justice Department official who has been briefed on the matter.
Deputy Attorney General James Cole, the second-in-command at the department, got involved. His office called NSA officials and instructed them to hold off on destroying any phone records in case the plaintiffs in the civil cases petitioned a judge for an order to preserve the phone records. Justice and NSA officials determined that the destruction must begin on Tuesday, March 11.
On Monday March 10, the Electronic Frontier Foundation asked a judge in the Northern District of California to issue a temporary restraining order, preserving the records for one of the six civil cases, as well as the Jewel case. He agreed.
The Justice Department thus found itself in the awkward position of facing two contrary rulings: one instructing the government to destroy the data, another ordering its preservation. Department lawyers went back to Walton, the intelligence court judge, and presented their dilemma. It was March 11, the day that the NSA was supposed to start purging its systems of old phone records.
In light of the judge's order in California, Walton ruled the next day that the government could keep the records longer than five years. The crisis was averted, and the phone records would continue to be amassed.
A U.S. official familiar with the legal process said the question about what to do with the phone records needn't have been handled at practically the last minute. "The government was coming up on a five-year deadline to delete the data. Lawsuits were pending. The Justice Department could have approached the FISC months ago to resolve this," the official said, referring to the Foreign Intelligence Surveillance Court. The official noted that the department's National Security Division, which represents the government before the surveillance court, and the Civil Division, which is handling the lawsuits, had to coordinate with each other, and that the back-and-forth has at times been a cumbersome process.
Cole has been acting as a referee between the two sides, and he has made the final decisions on how to proceed with regards to the legal issues presented by the phone records program, the Justice Department official said. The involvement of such a senior official in managing the program underscores the degree to which it has become a particularly nettlesome challenge for the Obama administration to resolve.
"This is all uncharted territory," said Carrie Cordero, a former senior Justice Department official who recently served as the counsel to the head of the National Security Division. "Given the complexity and the novelty of this chain of events, it's a good thing that the deputy attorney general is personally engaged, and it demonstrates the significant attention that they're giving to it."
David Greene, a senior staff attorney for the Electronic Frontier Foundation, said he recognized that it was unusual for his group, one of the most stalwart opponents of government surveillance, to play a central role in preserving a giant database of personal information on Americans it would ultimately like to see destroyed.
"There is some irony to it," Greene said. "We would prefer these records didn't exist in the first place. But in order to prove wrongdoing, we need to know what the government did with them."
Saul Loeb / AFP