On The Recent FISC Preservation Rulings

When last we checked in on the metadata preservation saga, the Foreign Intelligence Surveillance Court had authorized the government---in contravention of its prior order---to retain metadata beyond the FISA-imposed five year limit in order to account for evidence preservation issues being litigated by civil plaintiffs in suits against the NSA in the Northern District of California.  On March 21, Wells reported that, after issuing the authorization order, FISC Presiding Judge Reggie Walton ordered the government to explain why it had failed to notify the FISC of the potentially applicable preservation orders in the Northern District of California. Last week, the government responded to the March 21 order (and, in a later filing, appended a correction to a footnote contained in the response.) Essentially, the government chalks the non-notification up to an oversight. Because Jewel and Shubert, the two California cases, challenge non-FISA authorities, the government said it did not understand the suits to implicate FISC-authorized programs. Specifically, the government had envisioned those cases as cabined to Presidentially-authorized surveillance authorities (e.g. President Bush’s Terrorist Surveillance Program).  Thus the confusion, and the Department's having not notified Judge Walton of the preservation orders initially. The rest of the brief is a mea culpa: it concludes that the government “sincerely regrets not apprising the Court of these matters before its March 7 ruling and assures the Court that it will apply the utmost attention and coordination in its submission and all other matters before this Court.”