The U.S. Foreign Intelligence Surveillance Court has temporarily reversed its earlier order that call records collected by the National Security Agency should be destroyed after the current five-year limit.
The court modified its stand after a District Court in California on Monday ordered the government to retain phone records it collects in bulk from telecommunications carriers, as the metadata could be required as evidence in two civil lawsuits that challenge the NSA’s phone records program under section 215 of the Patriot Act.
The conflicting directives from federal courts puts the government in “an untenable position” and are likely to create confusion and uncertainty among all concerned about the status of the data collected over five years ago, Reggie B. Walton, presiding judge of the FISC, wrote in his order on Wednesday.
It is appropriate for the District Court rather than the FISC to decide what telephone metadata would be required as evidence in the civil suits, he added.
In view of the restraining order by the U.S. District Court for the Northern District of California, hearing the two civil cases, the Department of Justice filed Tuesday for temporary relief from a FISC order on Friday to destroy the phone data within the five-year limit.
District Judge Jeffrey S. White of the California court had issued a temporary restraining order that the call data should be retained as evidence after the government informed plaintiffs and courts hearing civil cases against the NSA program that in line with the FISC order, it would start destroying the records on Tuesday in the absence of a court order to the contrary. A hearing on whether the District Court order should continue is set for March 19.
Judge Walton had on Friday denied a DOJ motion for relief from the current five-year limit for holding the data, citing privacy interests and the absence of any preservation order from a court or the indication of a request from a plaintiff for the retention of the phone data.
The data preserved beyond five years cannot be accessed by NSA intelligence analysts for any purpose, and can only be accessed by technical personnel for ensuring continued compliance with the government’s preservation obligations, Judge Walton wrote in his revised order.
The government will have to give prior notice to the surveillance court if any further access to the data is required for civil litigation, and also notify it of a resolution in the temporary restraining order proceedings in the California court, he added.