NSA pushes to retain phone records for longer to use against privacy lawsuits

The Obama administration has filed a request with a special court with the hope of convincing judges to give the US National Security Agency permission to keep millions of American phone records for a longer period of time than previously allowed.

The US Department of Justice is known to have been considering such a strategy, which the Wall Street Journal reports will widen the NSA’s database of phone data by not deleting calls older than five years old, the long-held NSA policy.

Now, though, the Justice Department asserts that it needs to keep the records for longer than five years so they can be used as to defend against lawsuits brought by the American Civil Liberties Union (ACLU), Electronic Frontier Foundation (EFF), Senator Rand Paul, and others.

“When litigation is pending against a party (or reasonably anticipated), that party has a duty to preserve- that is, to identify, locate, and maintain – relevant information that may be evidence in the case,” the Justice Department argued. “The duty to preserve typically arises from the common-law duty to avoid spoliation of relevant evidence for use at trial; the inherent power of the courts; and court rules governing the imposition of sanctions.”

The proposal was submitted to the Foreign Intelligence Surveillance Court. The court’s approval would permit the data to be stored, but it would be a violation for any NSA analyst to examine the data as they would data that is under five years old.

“When preservation of information is required, the duty to preserve supersedes statutory or regulatory requirements or records-management policies that would otherwise result in the destruction of the information,” the court filing went on.

The NSA collects phone records belonging to millions of Americans and stores that information in a massive database that officials can search for information about suspected terrorists. While conversations are not monitored, the NSA does collect “metadata,” including the time and duration of each call as well as information on what phone number someone dialled.

When NSA whistleblower Edward Snowden first leaked information about the metadata collection even experts were unsure about exactly how much information was collected. A report published by the Washington Post earlier this month, though, revealed that the NSA is only able to access less than 30-percent of all American call records because the intelligence agency is unable to keep up with cell phone technology.

In 2006, when the use of cellphones was far less common, NSA officials admitted that the number of Americans with their records seized was “closer to 100” percent.

“For innocent Americans, 20 or 30 percent is still a significant number and will chill legitimate lawful activities,” Christopher Soghoian, chief technologist for the ACLU, told the Post.

Collection of the telephony metadata has been among the most controversial of the NSA programs revealed. US President Obama admitted he is open to reforming the program and has previously said that the NSA’s backlog of data will be turned over to an as-yet-unnamed third party.

In January Obama asked US intelligence leaders and the attorney general to give him a list of options by March 28 on how the intelligence program could remain intact while attracting less public scrutiny. Administration sources told the Wall Street Journal on Tuesday that those officials have returned to the White House with their ideas more than a month early.

One of the options was reportedly to leave all phone records in the hands of the telecommunication company where the records originate. Instead of harvesting millions of records, the NSA would only force the company to provide metadata on the phone numbers suspected of terrorism involvement.

A second idea proposed that a government agency other than the NSA – perhaps the FBI – be given the metadata. Officials are also considering the notion of placing all of the metadata currently collected by the NSA into the hands of the Foreign Intelligence Surveillance Court, the body that has approved all but a small fraction of NSA requests.

The fourth proposal was to abandon the collection of telephony metadata altogether.