Court Nixes Feds Request to Keep NSA Phone Records Longer Than Five Years

Federal judge Reggie Walton

In a story that slipped under the radar during SXSW, the Ukraine crisis, and the Malaysian Airlines plane disaster, a federal judge ruled that the NSA could not keep phone records longer than five years. According to an article in theverge.com, the judge in charge of NSA oversight asserted that privacy protections trumped the government's contention that five years just wasn't enough time to hold gathered data for evidentiary purposes.

The ruling jurist, Reggie Walton, is a George W. Bush appointee. The judge has tended to see the merits of protecting individual privacy versus sweeping, secret government encroachment of it.

FISA Court's Chief Judge: I'm Not a Rubber Stamp

The United States' FISA (Foreign Intelligence Surveillance Court) institution is an American judicial anomaly. Its principal role is to evaluate and rule on federal government requests to snoop on "suspected" terrorists and other clear and present dangers to this country.  The case, the evidence, and the rulings are secret. Only Department of Justice attorneys may present a case; no other attorney or representative is permitted. Judging from recent revelations about the American surveillance state, it seemed FISA played the matador to the Justice Department's bull.

Not so, claimed FISA's presiding judge Reggie B. Walton, as The Washington Post reported in today's online edition. In a letter Walton sent to Senate Judiciary Committee members Patrick Leahy (D) and Charles Grassley (R), he asserted FISA sent nearly one in four requests back to the Justice Department for "substantive changes." (For more on Walton's judicial background, you should explore his official biography, posted on the US District Court for the District of Columbia's website.)

FISA judge Reggie B. Walton

That left three of four either requiring a lower degree of modification or no change at all. That means the DOJ legal team is batting .750 on its requests to spy on alleged political bad actors. Included in that .750 average is a FISA ruling approving the sweeping collection of Americans' phone records. That was the haystack, as the NSA characterized the massive data grab, security teams needed to create in order to find a terrorist needle. If that notion seemed like a good idea to a FISA judge, one wonders about the content or intent of the rejected DOJ motions.

Meanwhile, a declassified 2009 ruling sheds some light on the surveillance state's assault on privacy. As the Post story noted:

...Walton scolded the government for repeated violations of court orders and falsely assuring the court it was following required steps to protect Americans' privacy.

General Keith Alexander

Privacy procedures "have been so frequently and systematically violated that it can be fairly said that this critical element of the overall [phone records] regime has never fully functioned effectively," Walton wrote. He added that the explanation of the misunderstanding of the court's order by Gen. Keith Alexander, NSA's director, "strains credulity."