Legal Protests Will Keep NSA’s Phone Record Hoard For Longer!

If you spend enough time here in Washington you begin to realise that you have to be careful what you ask for, because you might get it.

Another thing you learn is that for every official action, there is an equal, opposite and unintended reaction. A corollary to that rule is that “no well-intended deed goes unpunished.” With that in mind, it’s time to say, “Welcome to the Real Washington, privacy advocates.”

Protesters get the opposite of what they wanted

What’s going on this time is that several organisations that oppose the National Security Agency’s collection of phone call metadata are suing the federal government to make the data collection stop. A main goal of the American Civil Liberties Union is to have the entire database of phone call data deleted. Other groups say that the collection is overly broad and want better oversight.

But in a motion uncovered by the Wall Street Journal, the Department of Justice is asking the Foreign Intelligence Surveillance Court (FISC) to allow it to stop deleting those records, and for permission to retain them as long as that material needs to be available as evidence. In other words, instead of deleting records after they have been retained for five years, the government would keep them longer.

“But wait,” you’re probably saying to yourself right now, “isn’t the ACLU trying to keep them for less time, and maybe not at all?” That is correct. The unintended consequence of the ACLU’s legal action itself is that the record would be retained longer than current law authorises.

Furthermore, in an effort to show that the data collection wasn’t overly broad, the Justice Department is keeping them all so that the government can show that it really only managed to gather 20 percent of so of what it was trying to collect.

So now that the advocacy groups got what they wanted—that is, a lawsuit to try to force the government to either stop keeping those metadata records or to shorten the time they’re retained—the unintended reaction is that not only are those records being kept, they’re being kept longer.

This should not be a big surprise to the advocacy groups, who must have known that there would be a long legal battle. It is the duty, after all, of a party in litigation to preserve as much evidence as possible just in case it’s needed in the lawsuit. This way, the Justice Department will be able to point to the phone records in the NSA’s database and show that there’s really not as much there as everybody feared.

Of course, what the government’s lawyers will be pointing at is really the vague presence of digital phone records quietly aging on the NSA’s storage network. It would be impossible to print the material out because even the government doesn’t have that much paper. Likewise, there’s no other really good way to get a look at all that data. That’s a big problem with big data.

So what will the government do with all of those extra phone records? The court motion indicates that the NSA wouldn’t be allowed to look at them. It’s unlikely that any other agency would even have the ability to look at them. It’s even unclear what the Justice Department would be able to do with the data, even if it wanted to use it for something.

What might happen is that the DoJ, assuming it has to prove something with all of those phone records, would hire an expert witness who would characterise the data in some way to explain it to the court. The opponents to that data collection would then have to hire their own expert witnesses to examine that data in some way, and then say that whatever the government said was wrong.

The actual data, those phone records that everyone is worried about getting into the wrong hands, will be sitting there in the NSA’s database, where the NSA itself can’t touch it, while someone at the DoJ tries to think of some way to use it to prove that the privacy advocates are wrong. But they won’t be able to use the actual metadata to accomplish that because there’s so much of it and Justice doesn’t have a good way to access it without the help of the NSA, which is forbidden to see it.

While it’s possible that some judge somewhere can think of a way to write an order that would perhaps provide a look at the data without the NSA actually seeing it, I think the idea is unlikely. What is likely is that this excess data will just accumulate without limit, requiring that the NSA spend more of its money on storage, but ultimately will prove to be useless for any practical purpose.

By now you’re wondering why the lawyers are doing this to themselves and to each other. The answer, of course, is they don’t really know why. It’s like the hoarder who packs the used foil from candy bars into drawers just in case he finds a use for it. That day will never come, but in the meantime all that foil, or all that data, is just sitting around waiting for something to happen. Perhaps it will.

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Originally published on eWeek.