NSA Weighs Retaining Data for Suits
Rule That Evidence Can't Be Destroyed Would Lead to Expansion of Controversial Phone Program
WASHINGTON—The government is considering enlarging the National Security Agency's controversial collection of Americans' phone records—an unintended consequence of lawsuits seeking to stop the surveillance program, according to officials.
A number of government lawyers involved in lawsuits over the NSA phone-records program believe federal-court rules on preserving evidence related to lawsuits require the agency to stop routinely destroying older phone records, according to people familiar with the discussions. As a result, the government would expand the database beyond its original intent, at least while the lawsuits are active.
No final decision has been made to preserve the data, officials said, and one official said that even if a decision is made to retain the information, it would be held only for the purpose of litigation and not be subject to searches. The government currently collects phone records on millions of Americans in a vast database that it can mine for links to terror suspects. The database includes records of who called whom, when they called and for how long.
President Barack Obama has ordered senior officials to end the government storage of such data and find another place to store the records—possibly with the phone companies who log the calls. Under the goals outlined by Mr. Obama last month, the government would still be able to search the call logs with a court order, but would no longer possess and control them.
National Security Agency Director Keith Alexander has said the program, if it had existed in 2001, would have uncovered the Sept. 11 plot. Critics of the program, including the American Civil Liberties Union and the Electronic Frontier Foundation, have sued the government, saying the program violates the Constitution's Fourth Amendment protections against unreasonable searches.
Patrick Toomey, an ACLU lawyer, said no one in the government has raised with his group the possibility the lawsuits may actually expand the database they call unconstitutional. "It's difficult to understand why the government would consider taking this position, when the relief we've requested in the lawsuit is a purge of our data,'' he said.
Cindy Cohn, legal director at the Electronic Frontier Foundation, which also is suing over the program, said the government should save the phone records, as long as they aren't still searchable under the program. "If they're destroying evidence, that would be a crime," she said.
Ms. Cohn also questioned why the government was only now considering this move, even though the EFF filed a lawsuit over NSA data collection in 2008.
In that case, a judge ordered evidence preserved related to claims brought by AT&T Inc.T +0.09% customers. What the government is considering now is far broader.
"I think they're looking for any way to throw rocks at the litigation," added Ms. Cohn. "To the extent this is a serious concern, we should have had this discussion in 2008."
Another person who has filed a class-action suit over the program is Sen. Rand Paul (R., Ky.). Mr. Paul's lawyer, former Virginia Attorney General Ken Cuccinelli, called the approach under consideration "just silly.'' He said he was sure his clients would be happy to agree to the destruction of their phone records held by the government, without demanding those records in pretrial discovery.
Federal courts have ruled that defendants in lawsuits cannot destroy relevant evidence that could be useful to the other side. Generally, those involved in lawsuits are expected to preserve records, including electronic records, that could reasonably be considered relevant or likely to be requested as part of pretrial discovery.
As the NSA program currently works, the database holds about five years of data, according to officials and some declassified court opinions. About twice a year, any call record more than five years old is purged from the system, officials said.
A particular concern, according to one official, is that the older records may give certain parties legal standing to pursue their cases, and that deleting the data could erase evidence that the phone records of those individuals or groups were swept up in the data dragnet.
The phone records program is overseen by the Foreign Intelligence Surveillance Court, and any move to keep data past the five-year period may require the blessing of that court.
If the records are retained, they may remain in government computers for some time, because it could take years to resolve the spate of litigation over the programs. A federal judge in New York has ruled the program is legal, while a Washington, D.C., judge has ruled it almost certainly isn't. There are several other pending cases, and other lawsuits could yet be filed.
Government retention of old records has long been a major concern for civil-liberties groups. The ACLU, in particular, has argued the longer the government holds data about citizens, the deeper investigators can delve into the private lives of individuals, and errors or abuses become more likely.
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