Sep 04 2015

How the U.S. Appeals Court Ruling Changes the NSA's Approach to Destroying Phone Records

Opposing rulings leave the specifics of the NSA’s surveillance program up in the air.

After spending years gathering phone records through a surveillance program, the National Security Agency (NSA) was forced to destroy the information by a new law. The NSA’s reluctant compliance illustrates the agency’s understanding of the boundaries accompanying its interests and efforts, but conflicting rulings about the initiative make it difficult for the NSA to know how to proceed.

After President Barack Obama signed into law the USA Freedom Act, in June, the practice of gathering American phone records in bulk was outlawed. Under the new law, intelligence agencies will have to go directly to the phone companies for that information. The Wall Street Journal reports that the law granted the NSA time to conclude its data collection program, which was instituted in the wake of the 9/11 attacks.

After considering what should be done with the information, officials decided to destroy it:

The law gave the NSA six months to wind down an existing program that swept up almost all records from phone companies and stored the information—including phone numbers called by individuals and the duration of conversations—on government servers.

White House officials had said they were studying whether they would retain the phone logs collected under that program, but the top intelligence agency said Monday these records would be purged.

Although The Associated Press reported that some NSA officials didn’t believe the program was effective, destroying the data would present a challenge if an attack occurs. The information that’s been collected would enable both the NSA and the FBI to make connections based on years’ worth of research, and having to go through another channel to access it makes intelligence efforts more difficult. This is a potential complication that the agency would have to accept, despite a reluctance to destroy data the NSA obtained legally.

“It's a political choice that they are making, and it shows that at the end of the day they are a law-abiding organization,” Federation of American Scientists writer Steven Aftergood said. “They are not putting their intelligence interests above external control.”

Surprise Appeals

Circumstances changed last week when an appeals court in Washington, D.C., overturned the initial ruling. According to USA Today, judges determined that the plaintiffs had not proved that their data was collected as part of the program:

The three-judge panel ruled that challengers to the telephone records collection failed to prove that their own records were collected. It cited the possibility that "legal constraints, technical challenges, budget limitations or other interests prevented NSA from collecting metadata" from their phone company, Verizon Wireless.

The argument continued this week, with both sides debating whether the program should be allowed to continue through the end of November, Reuters reports:

Henry Whitaker, a lawyer for the Obama administration, told the three-judge panel that Congress clearly intended the collection to continue while the NSA transitions to the new system.

But Alex Abdo, an ACLU lawyer, said the statute explicitly extended the same Patriot Act provisions that the court concluded do not permit bulk collection.

The judges expressed concern that, as Circuit Judge Robert Sack put it, halting the program would "short-circuit" a process already under way.’

This matter appears to be far from resolved, but one thing is certain: Come November, the NSA will only be able to acquire information with a federal court’s authorization.