FISC and Federal District Court Rule on Call Record Preservation

Published On March 11, 2014 | By Dan Sachs | Foreign Intelligence Surveillance Act (FISA), Mobile Privacy, Privacy

The Foreign Intelligence Surveillance Court (“FISC”) has ordered the Government to destroy call detail records collected under its bulk telephony metadata collection program, despite pending litigation challenging the program’s legality. After receiving that order, the Government told plaintiffs in consolidated cases pending in the Northern District of California that it would destroy records on March 11, 2014. Plaintiffs moved to prevent that destruction, and the Northern District of California has issued a temporary restraining order blocking the destruction of records until it can rule on whether those records are subject to its preservation orders. Although the orders conflict, the Government has elected to preserve data, pending the Northern District’s ruling.

I. The FISC Decision

The FISC order authorizing metadata collection under Section 215 of the Foreign Intelligence Surveillance Act (“FISA”) requires the Government to destroy data collected within five years. Faced with a looming 5-year deadline and pending litigation, the Government sought the FISC’s permission to continue to preserve records because they might be evidence in pending or reasonably anticipated litigation. The Government argued that a duty to preserve for pending litigation “supersedes statutory or regulatory requirements or records-management policies that would otherwise result in the destruction of the information.”

GAVEL AND WEIGHTS

The Court rejected this argument, explaining that, while the preservation duty trumps a corporate document destruction policy, it does not supersede statutory or regulatory destruction requirements. The FISC also observed that none of the plaintiffs in the pending litigation had sought discovery or preservation of the metadata subject to destruction. Nor had the Government shown it was relevant to the pending cases. The FISC noted that the Government “could significantly reduce its exposure by simply notifying the plaintiffs and the district courts of the pending destruction.”

II. The Northern District of California Decision

Following the FISC’s direction, the Government told plaintiffs in consolidated challenges to NSA surveillance that it would delete the records at issue on March 11, 2014. Plaintiffs then moved for a temporary restraining order preventing destruction of the data until the court could rule on whether the data was subject to its prior preservation order.

The Government did not argue that the FISC order had resolved this question, stating only that “absent a court order to the contrary, it must . . . discharge its obligations under the FISC’s orders.”

The conflicting orders of the FISC and the district court raise the thorny question of a party’s obligations under conflicting court orders, and FISA’s minimization rules and pending litigation. Courts have placed the burden of resolving these differences on the affected party, holding that “merely being subject to different court orders constitutes no defense to contempt.” Chairs v. Burgess, 143 F.3d 1432, 1438 (11th Cir. 1998). Here, the Government will likely preserve the records pending the Northern District’s ruling. If the Northern District finds the documents are relevant to plaintiffs’ claims, the Government will likely file a motion for reconsideration in the FISC, because it will then be able to satisfy the FISC’s demand that the Government demonstrate these records are relevant to pending litigation.

About The Author

Dan Sachs, ZwillGen’s inaugural Fellow, assists ZwillGen attorneys on a broad range of matters, including litigation, investigations, product counseling, regulatory compliance, and policy. Prior to joining the firm, Dan worked at Facebook, where he assisted the Chief Privacy Officer for Policy in responding to federal, state, and international policy developments, engaging with regulators and stakeholders, and advising business units on privacy issues. During law school, Dan was a member of the George Washington Law Review and served as a research assistant to Professor Jeffrey Rosen, focusing on U.S. and international consumer privacy and surveillance issues. He was a legal intern with ZwillGen in the summer of 2012. Dan also worked as a legal intern with the U.S. Attorney’s Office for the District of Columbia.

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