In potential conflict with FISA order, court in California wants NSA phone records kept

The Foreign Intelligence Surveillance Court last week disallowed retention of phone records beyond five years

A court in California has prohibited the destruction of phone records collected by the government until further orders, raising a potential conflict with an order last week by the secret Foreign Intelligence Surveillance Court in Washington.

Judge Jeffrey S. White of the U.S. District Court for the Northern District of California ordered Monday the retention of the call details in two lawsuits that have challenged the U.S. National Security Agency's program for the collection of telephone metadata.

A number of lawsuits challenging the NSA program have been filed by privacy and other groups, including the American Civil Liberties Union and the First Unitarian Church of Los Angeles. The NSA's former contractor, Edward Snowden, disclosed in June last year that the government was collecting phone records in bulk of U.S. customers of Verizon. The government subsequently confirmed the existence of the controversial surveillance program.

On Friday, Reggie B. Walton, presiding judge of the FISC, denied a motion from the Department of Justice that the current five-year limit for holding phone metadata should be extended indefinitely as it could be required as evidence in the civil lawsuits challenging the program.

An extension of the time limit would further infringe on the privacy interests of U.S. persons whose phone records were acquired in large numbers and retained by the government for five years to assist in national security investigation, Judge Walton wrote in his order. ("The great majority of these individuals have never been the subject of investigation by the Federal Bureau of Investigation to protect against international terrorism or clandestine intelligence activities," he wrote.

In his temporary restraining order, White has, however, prohibited the destruction of any "potential evidence relevant to the claims at issue" in the lawsuits, including the destruction of any telephone metadata or "call detail" records, pending a further order of the court.

"It is undisputed that the Court would be unable to afford effective relief once the records are destroyed, and therefore the harm to Plaintiffs would be irreparable," Judge White wrote.

The DOJ could not be immediately reached for comment.

In a filing on Monday, the government told the District Court that it intended to comply with the FISC order in the absence of a court order to the contrary. It made similar submissions in other cases challenging the collection of phone metadata under section 215 of the Patriot Act, it said.

In his order, Walton denied the government motion to allow the holding of data beyond five years but "without prejudice," which gives the government the option to file another motion on the issue in the light of additional facts or legal analysis.

Walton pointed out in his order that so far no District Court or Circuit Court of Appeals has entered a preservation order relating to the phone metadata in connection with the civil suits cited by the government in its motion. There had also not been a request from plaintiffs in the civil suits that the data be preserved beyond the five-year limit. The order by Judge White changes that position.

John Ribeiro covers outsourcing and general technology breaking news from India for The IDG News Service. Follow John on Twitter at @Johnribeiro. John's e-mail address is john_ribeiro@idg.com

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