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Second Circuit Rejects NSA's Collection of Bulk Call Data

The U.S. Court of Appeals for the Second Circuit ruled Thursday that the National Security Agency's bulk collection of Americans' phone records is illegal, The New York Times' Charlie Savage and Jonathan Weisman reports. The panel ruled that the Patriot Act can't be interpreted to allow the bulk collection of domestic call metadata, but noted that Congress could choose to authorize "'such a far-reaching and unprecedented program.'" The Patriot Act is set to expire June 1.

The Patriot Act permits the collection of records deemed "'relevant'" to a national security case, but the federal government interpreted this to cover the collection of all phone-call metadata so long as relevant records were reviewed by intelligence analysts, Savage and Weisman note.

Second Circuit Hears Arguments on Phone Surveillance

The federal government was before the U.S. Court of Appeals for the Second Circuit yesterday to defend the National Security Agency's collection of phone call metadata for millions of Americans in order to investigate foreign terrorism, the New York Law Journal's Mark Hamblett reports: [Assistant U.S. Attorney General Stuart] Delery said the case was governed by Smith v. Maryland, 442 U.S. 735 (1979), where the U.S. Supreme Court held that telephone users lack a Fourth Amendment privacy interest in the telephone numbers they dialed because they voluntarily give that information to their telephone company. [Alex] Abdo [of the American Civil Liberties Union] countered that the use of a pen register against a criminal suspect in the Smith case was a far cry from the mass accumulation of phone data on the chance it may be useful to derail a terror attack." U.S. District Judge William Pauley refused to grant an injunction against the surveillance, but two other district judges came to the opposite conclusion.


Federal Judge Asks Supreme Court to End NSA's Phone Surveillance

A federal judge in Idaho, while upholding the National Security Agency's surveillance program of telephone records because of legal precedent, urged the U.S. Supreme Court to rule that the surveillance is unconstitutional, the Wall Street Journal reported: Judge B. Lynn "Winmill said there is a 'looming gulf'' between a 1979 Supreme Court precedent that allowed the government to gather the phone records of a single suspect, and the NSA program that collects millions of phone records of Americans to build a searchable database, including the time, duration, and numbers dialed. The program doesn't gather the content of calls."

Obama Administration Plans to End Bulk Surveillance of Phone Calls

President Barack Obama plans to get the National Security Agency out of the business of collecting phone call records in bulk, The New York Times' Charlie Savage reports: "Under the proposal, they said, the N.S.A. would end its systematic collection of data about Americans’ calling habits. The bulk records would stay in the hands of phone companies, which would not be required to retain the data for any longer than they normally would. And the N.S.A. could obtain specific records only with permission from a judge, using a new kind of court order." A House Intelligence Committee would allow the NSA to issue subpoenas for specific phone records without judicial approval, The Times also reports.

Court Reverses Course, Allows Surveillance Evidence to Be Preserved for Lawsuits

The Foreign Intelligence Surveillance Court has reversed course on allowing the National Security Agency to retain phone call metadata for longer than five years in order to preserve evidence in civil lawsuits over governmental surveillance, The Hill reports. A "federal judge in San Francisco said the government could not destroy phone records after the five-year retention period expired," setting up a conflict with a prior ruling by F.I.S.C., The Hill further reports. Judge Reggie Walton said he was reversing course because the conflicting directions from the federal courts "'put the government in an untenable position and are likely to lead to uncertainty and confusion,'" according to The Hill.

Surveillance Data Must Not Be Destroyed, Court Rules

U.S. District Judge Jeffrey White of the Northern District of California blocked the federal government from destroying the telephone metadata collected by the National Security Agency, The Recorder's Julia Love reports. The move is just a temporary one until the court decides if the data must be preserved after full briefing and argument.

The emergency motion was brought by the Electronic Frontier Foundation. The Justice Department said it was going to begin clearing records today that were more than five-years-old, The Recorder said.

The Foreign Intelligence Surveillance Act previously ruled that governmental lawyers were under no obligation to hold telephone metadata beyond the current five-year limit. The FISA court reasoned: "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," according to a report in Computer World.

Court Rejects Holding Phone Records as Evidence in Privacy Civil Suits

The Foreign Intelligence Surveillance Court rejected the request of governmental lawyers to hold telephone metadata beyond the current five-year limit, Computer World reports. The Department of Justice had reasoned the evidence would need to be preserved for privacy civil lawsuits challenging the constitutionality of the surveillance of phone calls. The court reasoned: "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," Computer World also reports.

NSA Wants to Keep Phone Records Due to Lawsuits Challenging Legality of Surveillance

The National Security Agency needs to keep phone-call metadata longer than the five-year limit in order to preserve evidence for the civil lawsuits challenging the legality of surveillance, the Justice Department said in a court filing Wednesday, The Hill reports. "'The United States must ensure that all potentially relevant evidence is retained,'" government lawyers said, according to The Hill. The government does say the records would be kept for "non-analytical purposes."

Preserving Evidence in NSA Litigation Could Expand Phone Surveillance

Parties in litigation have a duty under federal court rules not to destroy evidence. This obligation may be leading the National Security Agency to expand its phone call metadata program in order to preserve evidence as litigants like the American Civil Liberties Union and the Electronic Frontier Foundation sue to stop the surveillance of most of the phone calls made in America, the Wall Street Journal reports. No final decision has been made by the NSA yet, but governmental lawyers believe the obligation not to destroy evidence would require the practice of destroying phone records older than five years, WSJ reports. One source told the WSJ that, if the information was retained, it would be held only for the purpose of litigation. Deleting the data could mean that parties would lose their legal standing to pursue their cases.

Surveillance Court Modifies Telephone Metadata Program

President Obama's administration reports that the the Foreign Intelligence Surveillance Court has agreeed to modify the surveillance program collecting telephone metadata. James Clapper, director of national intelligence, said in a statement: "As a first step in that transition, the President directed the Attorney General to work with the Foreign Intelligence Surveillance Court to ensure that, absent a true emergency, the telephony metadata can only be queried after a judicial finding that there is a reasonable, articulable suspicion that the selection term is associated with an approved international terrorist organization. The President also directed that the query results must be limited to metadata within two hops of the selection term instead of three." Now, according to Clapper, FISC approved those changes. The orders haven't been declassified yet.


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