The secret Foreign Intelligence Surveillance Court has ruled against a U.S. government request that it be allowed to hold telephone metadata beyond the current five-year limit as it may be required as evidence in civil lawsuits that question the data collection.
The American Civil Liberties Union, U.S. Senator Rand Paul and the First Unitarian Church of Los Angeles are among those who have filed lawsuits challenging the phone records program, which came to light in June last year, after former National Security Agency contractor, Edward Snowden, revealed that the agency was collecting bulk phone records of Verizon customers in the U.S.
The FISC’s Presiding Judge Reggie B. Walton ruled Friday that the proposed amended procedures would further infringe on the privacy interests of U.S. persons whose “telephone records were acquired in vast numbers and retained by the government for five years to aid in national security investigation.”
“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 added.
The government which has confirmed that it has a program for the bulk collection of phone metadata, had argued in a filing last month by the Department of Justice that when litigation is pending against a party, or is reasonably expected, the party has a duty to preserve relevant information that may be evidence in the case.
The Judge pointed out that there had not been a request from the plaintiffs in the civil suits that the data be preserved beyond the five-year limit, despite it being on public record that the metadata is routinely destroyed after that period. To date, no District Court or Circuit Court of Appeals has entered a preservation order relating to the phone metadata in connection with any of the civil suits cited by the government in its motion, he added.
The government can be sanctioned for destruction of evidence only if it is established that it had an obligation to preserve it at the time it was destroyed, that the records were destroyed “with a culpable state of mind,” and the destroyed evidence was relevant to the party’s claim or defense, the Judge wrote.
The government’s motion has been denied “without prejudice,” which gives it the option to file another motion on the issue in the light of additional facts or legal analysis.