A federal judge has ordered the National Security Agency to indefinitely hold onto the phone records of hundreds of millions of Americans in a massive database that civil liberties groups have long wanted to destroy and that's been at the center of a legal controversy for months. But in a bizarre twist, the NSA itself now says keeping the phone records will impose a heavy toll on the agency and will ultimately distract the NSA from its national security mission.
That assertion came in the form of a public declaration filed by the Justice Department in a hearing before a California district court Wednesday. Teresa Shea, the head of the NSA's Signals Intelligence Directorate, wrote that indefinitely keeping the phone records "would impose significant financial burdens on the NSA, divert personnel and technological resources from performance of the NSA's national security mission, and present other issues as well."
Shea said it would take months and several technology personnel who might otherwise be working on intelligence operations to devise the software and storage solutions to retain the data potentially for years to come. Under the rules of the phone records collection program, the records are usually destroyed after they turn five years old, but a judge told the NSA last week to keep them.
Shea's statement was a rare assertion by the NSA that keeping the phone records might cause unintended consequences. Agency officials, including outgoing NSA Director Gen. Keith Alexander, have said the phone database is one of the most important tools they have to find terrorists inside the United States. Officials have insisted that it's used judiciously, and that any intrusion into Americans' privacy is limited because the database contains only logs of calls by phone number, not names or the recorded conversations.
Shea's remarks about the program come at a time when both the agency and the Obama administration are struggling with the question of what to ultimately do with the database of hundreds of millions of Americans' phone records. Officials have proposed letting the collection continue and having NSA keep the data, or requiring phone companies or some third party to hold onto it for future investigations. The government could scrap the program altogether, but that outcome that seems unlikely given the value NSA places on it.
The database has been perhaps the most controversial of the NSA programs revealed by former contractor Edward Snowden, and a series of recent legal maneuvers by civil liberties groups and government lawyers has effectively guaranteed it will grow even larger.
The NSA didn't oppose keeping the records. But Shea's declaration seemed to show some distance between the agency, which would have to come up with some technical solution for preserving the records, and the Justice Department, which first proposed last month holding onto them longer than five years in case civil plaintiffs demanded evidence of alleged spying.
Shea, the senior NSA official, said there were essentially two options on the table for keeping the records: Retain only those phone records of plaintiffs in the cases or to keep all the records en masse. The latter appears to be the more technologically feasible solution, and it's the one the government prefers, because it would prevent NSA from having to go through the database and pluck out only specific records.
But both approaches will impose significant "burdens, costs, and risks" to the agency, Shea said. She didn't spell them out in detail in her public declaration, but they are specified in a classified document that only the judge, and not the plaintiffs suing the government, may read, Shea said.
Still, it was not clear what particular burdens the NSA might face. Elsewhere in court documents, officials have said that older phone records could be kept on tape, a fairly primitive form of storage. The government has proposed segregating the older records from newer ones that are still used for terrorism investigations and intelligence purposes. Investigators and analysts wouldn't be allowed to use the older records.
Spokespersons for the NSA and the Justice Department declined to comment.
Phone companies have resisted proposals for them to store the records, citing high costs as one factor. Sen. Dianne Feinstein (D-Calif.), the chair of the Senate Intelligence Committee, has said that U.S. carriers might have to spend as much as $60 million a year if they're required to retain old phone records.
Shea's directorate is responsible for collecting signals intelligence, of which phone records are a major source. It would fall partly to her staff to come up with a technological solution for keeping and storing the data.
Shea made her declaration to Judge Jeffrey White of the Northern District of California who last week ordered the agency to preserve the records indefinitely as evidence in a pair of cases brought by civil liberties and privacy groups opposed to NSA surveillance. There are currently six civil cases pending that directly challenge the program, as well as other cases challenging the legality of government surveillance undertaken during the Bush administration at the president's direction.
Judge White kept his order to preserve the documents in place on Wednesday and said he will issue a more detailed ruling soon.
An attorney for the Electronic Frontier Foundation, which represents plaintiffs in civil cases against government surveillance, said the government could destroy the phone records if it would confirm that nearly two dozen groups bringing suit are among those who had their records collected collected. A Justice Department attorney said that information was secret.
The department offered an alternative solution: The government could give the judge, in secret, a list of the phone companies that have turned over records to the NSA. But Judge White seemed uninterested in hearing alternative proposals at this late stage in the process. The government was set to begin destroying phone records last week, and the question of whether to preserve the information went down to the wire.
"The government [had] its opportunity to propose alternatives," White said, according to the San Francisco Chronicle. "They didn't do it, and now it's too late."
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