Judicial Rules May Force Feds to Save Old NSA Phone Records

Wednesday, 19 Feb 2014 10:50 PM

By Cathy Burke

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The government is considering hording old phone records that have been amassed as part of the National Security Agency's controversial data dragnet, the Wall Street Journal reported on its website Wednesday night.

The newspaper said that with a lawsuit filed, federal court rules may force the spy agency to stop what has been a routine purge of records older than five years — setting up an awkward choice for the government to either hold onto data that some argue has been collected unconstitutionally, or ditch it and be accused of criminal destruction of evidence.

"It's difficult to understand why the government would consider taking this position [of retaining older records], when the relief we've requested in the lawsuit is a purge of our data,'' Patrick Toomey, an American Civil Liberties Union lawyer, told The Journal.

But Cindy Cohn, legal director at the Electronic Frontier Foundation, which is also suing, said the data should be saved so long as they aren't searchable.

"If they're destroying evidence, that would be a crime," she told the newspaper.

The Journal said officials haven't decided what to do.

The ACLU and the Electronic Frontier Foundation are suing over the data collection, saying it violates Fourth Amendment protections against unreasonable searches.

Meanwhile, Kentucky Republican Sen. Rand Paul, in a separate action, filed a class-action lawsuit over the program. His attorney, former Virginia Attorney General Ken Cuccinelli, called the government's potential hording "just silly.''

The Journal noted that the spy agency's database holds about five years' worth of material; twice a year, any call record more than five years old is purged.

The phone records program is overseen by the Foreign Intelligence Surveillance Court, and any move to keep data past the five-year period may need its approval.

Last month, President Barack Obama announced a ban on eavesdropping on the leaders of close friends and allies, and reined in the vast collection of Americans' phone data.

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