Amidst the flap between the CIA and the SSCI last week, you may have missed the news about the back-and-forth between NSA and the FISA court over whether the agency may, must, or mustn't retain telephony metadata past the five year deadline for its destruction.
Just in case you did, I wanted to give a hearty shout-out to the Electronic Frontier Foundation, which in this weird little episode---and acting as a civil liberties organization---managed to dismantle one of the more important civil liberties protections associated with the Section 215 program. NSA used to hold your metadata for five years. Now, by contrast, it is forbidden by court order from destroying it at all. And at least as I read it, that court order will persist even though President Obama has ordered NSA to get out of the business of metadata retention. In other words, thanks to EFF, the government can't get rid of your metadata, and for now at least, while it can end the 215 program, it cannot end the part of it where it holds on to those records of your calls absent some change to the evidence preservation order.
If government metadata retention really bothers you, take it up with the self-appointed guardians of your civil liberties.
How did this happen? Let's review.
The five-year rule is one of the basic constraints on the 215 program. It's what prevents it from becoming a giant database of all calls forever. The government purges a lot of SIGINT after five years of retention; in the case of bulk metadata, this is required by the court orders
that authorize the collection in the first place (see, for example, p. 14: "BR metadata shall be destroyed no later than five years (60 months) after its initial collection.").
The trouble is that a bunch of entities are now suing NSA over the metadata program, and normally, when people are suing you, you don't go around destroying evidence, even if the evidence in question is the sort of database the very purpose of the litigation is to prevent you from maintaining. So the Justice Department---on behalf of NSA---went to the FISA Court and asked for permission to hang onto the metadata while these various litigations were pending. FISA Court Judge Reggie Walton refused
Enter your stalwart defenders of civil liberties. EFF is one of those entities suing the government over the bulk metadata program. And it sprang into action. According to Shane Harris, writing in Foreign Policy
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.
The day before that deadline, however, EFF went to the U.S. District for the Northern District of California
seeking, as it wrote in its brief:
a temporary restraining order and, after a hearing has been held, an order prohibiting, enjoining, and restraining defendants National Security Agency, United States of America, Department of Justice, Barack H. Obama, Keith B. Alexander, Eric H. Holder, Jr., and James R. Clapper, Jr. (in their official capacities) (collectively, the “government defendants”) and all those acting in concert with them from destroying any evidence relevant to the claims at issue in this action, including but not limited to prohibiting the destruction of any telephone metadata or “call detail” records.
The court agreed and entered a restraining order
. And the FISA Court quickly shifted gears
, understanding that the government was now wedged between two contradictory court orders. The result is that NSA will now retain bulk telephony metadata not because it may be useful or relevant for counterterrorism purposes but because it may be useful or relevant to a private party in litigation against the government.
This actually doesn't bother me particularly. The data, according to the FISC's order, will not be accessed for any analytic purpose. I don't have strong objections to the underlying program, and I have pretty high confidence in NSA's ability to keep the data secure. So the order strikes me as pretty harmless. But if you're one of those people who objects in principle to the government's maintenance of a huge database of call records and is not comforted by little things like court orders restricting the use of that data, understand that by court order this database will now persist---even if the program ends---thanks to your friendly neighborhood civil liberties advocates.
But don't worry. EFF is "Defending Your Rights in the Digital World"---as they tell you themselves.