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Over Easy: The Tug-of-War Over Metadata


Dept. of Justice Seal

This has been an interesting week in our surveillance state, with a tug-of-war between the FISA Court (FISC) and the DoJ over an ability to keep — or a requirement to dispose of — collected metadata. [You will recall the discussion of metadata at Over Easy last week.]

NSA’s metadata is an integral component of a series of lawsuits against the government. In February the DoJ asked the FISA Court to bend the minimization rules, and extend the metadata holding period from five years to an indefinite period. The DoJ argued that evidence could be destroyed that it might need to defend the government in lawsuits filed since Edward Snowden revealed the NSA’s bulk collection programs.

In a ruling last week, outgoing FISC Judge Reggie Walton turned the DoJ’s request down, highlighting the risk of granting the DoJ an extension, saying that an extension would significantly increase the likelihood of the metadata they keep being improperly used or disseminated. Changing the stipulations of the minimization procedures would put the entire metadata collection on shaky constitutional ground, since it almost entirely consists of information on American citizens who are not the subjects of any current NSA investigations.

Marcy Wheeler had this to say about the ruling:

Mind you, I’m not sure whether FISC or the government is right in this case, as I do have concerns about the data from the troubled period during 2009 aging off. But I will at least take some Friday afternoon amusement that the FISC just scolded the government about the word ‘relevant.’

But this week US District Court Judge Jeffrey Wright handed down a contradictory decision, ruling that the NSA is required to hold onto metadata relevant to ongoing lawsuits. This presented a conundrum for the NSA, requiring it to choose whether it would prefer data that doesn’t expire, or destroyed data that could never appear in court.

So then the NSA filed a motion asking the FISA court to reverse its decision on destroying the held metadata. The motion refers to the temporary restraining order Judge Wright issued mandating that the NSA retain the data until the pending cases are resolved. The NSA wound up under two contradictory notices, and it asked the FISA court to honor the District Court’s decision.

Yesterday FISC judge Reggie Walton issued an opinion in which he agreed with the District Court’s order, and he will allow the NSA to retain the metadata specifically related to the two cases listed in Judge Wright’s order: Jewel v. NSA, and First Unitarian Church v. NSA. The DoJ’s original request to retain the data was based on common law rules that are normally applied to retention of corporate data in civil cases, which is entirely unrelated to bulk surveillance metadata. Judge Walton also pointed out that none of the plaintiffs in the cases the DoJ listed had requested that the data be retained.

So the tug-of-war over our metadata goes on. Gee, I feel safer already!

Department of Justice Seal via Wikimedia Commons.

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I retired from the University of Notre Dame in the Office of Information Technology in 2010. I'm divorced, with two grown children and 8 grandchildren. I'm a lifelong liberal and a "nonbeliever."