Justice Department Asks FISC to Let U.S. Keep NSA Phone Records Longer

NEWS ANALYSIS: The filing with Foreign Intelligence Surveillance Court would allow the government to retain phone records for more than five years to protect itself against lawsuits.

If you spend enough time here in Washington you begin to realize that you have to be careful what you ask for, because you might get it.

Another thing you learn is that for every official action, there is an equal, opposite and unintended reaction. A corollary to that rule is that "no well-intended deed goes unpunished." With that in mind, it's time to say, "Welcome to the Real Washington, privacy advocates."

What's going on this time is that several organizations that oppose the National Security Agency's collection of phone call metadata are suing the federal government to make the data collection stop. A main goal of the American Civil Liberties Union is to have the entire database of phone call data deleted. Other groups say that the collection is overly broad and want better oversight.

But in a motion uncovered by the Wall Street Journal, the Department of Justice is asking the Foreign Intelligence Surveillance Court to allow it to stop deleting those records, and for permission to retain them as long as that material needs to be available as evidence. In other words, instead of deleting records after they have been retained for five years, the government would keep them longer.

"But wait," you're probably saying to yourself right now, "isn't the ACLU trying to keep them for less time, and maybe not at all?" That is correct. The unintended consequence of the ACLU's legal action itself is that the record would be retained longer than current law authorizes.

Furthermore, in an effort to show that the data collection wasn't overly broad, the Justice Department is keeping them all so that the government can show that it really only managed to gather 20 percent of so of what it was trying to collect.

So now that the advocacy groups got what they wanted—that is, a lawsuit to try to force the government to either stop keeping those metadata records or to shorten the time they're retained—the unintended reaction is that not only are those records being kept, they're being kept longer.

This should not be a big surprise to the advocacy groups, who must have known that there would be a long legal battle. It is the duty, after all, of a party in litigation to preserve as much evidence as possible just in case it's needed in the lawsuit. This way, the Justice Department will be able to point to the phone records in the NSA's database and show that there's really not as much there as everybody feared.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...