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The NSA is taking its time fulfilling the stipulations of the USA Freedom Act. (Photo: François Proulx/flickr/cc)

NSA to Destroy Phone Records, But 'Devil May Be in the Details'

Spy agency promises to delete metadata collected under USA Patriot Act 'as soon as possible,' although lawsuits filed over surveillance program add ironic dynamic

Nadia Prupis

The National Security Agency (NSA) will destroy all the metadata it swept up from U.S. citizens while operating a secretive surveillance program first exposed in 2013 by whistleblower Edward Snowden, the Office of the Director of National Intelligence (ODNI) announced on Monday.

That amounts to five years of phone records, which the ODNI said would be expunged "as soon as possible"—though it seems that will not be before the program's official November 29 expiration date.

"These records were collected in a manner that violates the law, the Constitution, and basic human dignity, but they are just a tiny sliver of the surveillance records the government is illegally gathering on millions of people." —Tiffiniy Cheng, Fight for the Future

In May, a federal appeals court ruled that the NSA's bulk spying program was illegal. That decision paved the way for Congress to enact some small measure of surveillance reform by passing the USA Freedom Act and allowing the sunset of key provisions of the USA Patriot Act—particularly Section 215, which the NSA previously claimed gave it the right to conduct its metadata sweep.

Under the Patriot Act, the NSA was obligated to destroy all phone records after five years, but had free rein to conduct the dragnet which was first put into place after September 11, 2001. The USA Freedom Act requires the NSA to end its surveillance program within six months. Investigations have shown that the agency queried its metadata archives roughly 300 times a year to reference phone numbers allegedly tied to terrorism, even as the operation proved largely useless in detecting or thwarting terror plots.

As Tiffiniy Cheng, co-founder of the civil liberties group Fight for the Future, told Common Dreams: "These records were collected in a manner that violates the law, the Constitution, and basic human dignity, but they are just a tiny sliver of the surveillance records the government is illegally gathering on millions of people.... President [Barack] Obama should know better where the line between free speech and unchecked powers should be and know that he should immediately take executive action to curtail the twisted legal reasoning that the government uses as justification."

ACLU staff attorney Alex Abdo, who argued the ultimately successful case against the dragnet in front of the Second Circuit Court of Appeals, told The Intercept on Monday that although the organization is "pleased that the NSA intends to purge the call records it has collected illegally... the devil may be in the details."

At least one of those details includes the NSA's quiet admission that "technical personnel" will still be allowed to access the expunged data for three months after the grace period ends in November. The agency says that would be "solely for data integrity purposes to verify the records produced under the new targeted production authorized by the USA FREEDOM Act."

But in the end, the NSA's waffling may serve to strengthen the growing call to dismantle it.

In an ironic twist, what is now preventing that metadata from being erased are the numerous civil liberties lawsuits pending against the NSA.

That includes litigation brought by the ACLU. Even stranger, one of those cases is a request for the NSA to halt its phone records program before its six-month deadline.

The government "continues to claim that no one has standing to challenge the legality [of] these programs because no one can 'prove' that their telephone records were included," Cindy Cohn, executive director of digital rights group Electronic Frontier Foundation, told Common Dreams. That includes high-profile cases that helped shine a light on the program, including Jewel v. NSA and Klayman v. Obama. "This legal position is largely why this information must be preserved. If the government admitted that the plaintiffs in these cases had their telephone records collected, it might be possible for the government to destroy at least some of them."

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