The Obama administration has asked a special surveillance court for approval to retain records of millions of Americans' phone calls stored by the National Security Agency — an unintended consequence of lawsuits seeking to stop the data-surveillance program.
The Wall Street Journal reported last week that the Justice Department was considering such a move, which would end up expanding the controversial database by not routinely deleting older call records.
Under the current system, the database is purged of phone records more than five years old. The Justice Department, in a filing made public Wednesday, said it needs to retain the older records to preserve evidence for law suits brought by the American Civil Liberties Union, Electronic Frontier Foundation, and others.
Jameel Jaffer, a lawyer for the ACLU, called the government's request "just a distraction.
"We don't have any objection to the government deleting these records," he said. "While they're at it, they should delete the whole database.'' The EFF, on the other hand, has argued the records should be preserved to show the extent of the surveillance.
The government 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 proposal made by the Obama administration to the Foreign Intelligence Surveillance Court, data older than five years would continue to be held, but NSA analysts wouldn't be allowed to search it.
"The United States must ensure that all potentially relevant evidence is retained which includes the [business records] metadata obtained in bulk from certain telecommunications service providers pursuant to this court's production orders,'' according to the filing made Tuesday night by senior Justice Department officials. The officials are asking the court to approve the retention of those records.
The Justice Department proposed the data "be preserved and/or stored in a format that precludes any access or use by NSA intelligence analysts for any purpose,'' including to conduct searches of the records for terror suspects, the Justice Department lawyers wrote. Sen. Ron Wyden (D., Ore.), a longtime critic of government surveillance, said that if the court approves the request, "strict prohibitions against the use of that data in any way must be enforced."
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.
The Wall Street Journal reported Tuesday that the Director of National Intelligence and the Justice Department have given the White House four options for changing the program. The options include having major phone companies store the data, or having another government agency such as the Federal Bureau of Investigation store it, or doing away with the database entirely.
National Security Agency Director Keith Alexander has said the phone surveillance program, if it had existed in 2001, would have uncovered the Sept. 11 plot. Critics of the program, including Sen. Rand Paul (R., Ky.) and conservative activist Larry Klayman, have sued the government, saying the program violates the Constitution's Fourth Amendment protections against unreasonable searches.