(PHOTO) Sen. Rand Paul, shown earlier this month, is one of a number of people suing the government to stop NSA surveillance of U.S. phone records.
Wall Street Journal Reporters Devlin Barrett and Siobhan Gorman report in a recent article that several pending lawsuits to stop the National Security Agency’s controversial surveillance program may actually have an “unintended consequence.” While these cases make their way through the lengthy legal process, the database of Americans’ phone records continues to grow as its older data is not being purged from the system as was routinely done before these class action suits were filed. Judges in many of these legal proceedings consider the phone records to be of evidentiary value, and they have therefore ordered that the records be preserved. As a result, the databases are rapidly expanding, and this unexpected development has allowed for further mining efforts by the U.S. government.
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 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.
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.
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.
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.
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.
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.
The Foreign Intelligence Surveillance Court, which has oversight over the phone records program, will have the final word on whether the data is retained beyond the five-year period. There are numerous other cases pending, and federal judges in many of these earlier cases have reached contradictory conclusions. So, if the data is not purged, the NSA may have access to our sensitive information for quite a long time.
Read More: Wall Street Journal
The opinions expressed by columnists are their own and do not necessarily represent the views of Barb Wire.