The National Security Agency’s bulk collection of American call records is winding down, according to news reports, but its reservoir of telephone metadata dating back at least five years cannot legally be purged – regardless of the outcome of a surveillance reform standoff in Congress.
That’s because the Electronic Frontier Foundation, an advocacy group with ongoing lawsuits against NSA record-collection programs, has evidence preservation orders preventing the agency from wiping its drives.
Unless the orders are lifted, the NSA cannot lawfully destroy stored call records, even if Congress passes the USA Freedom Act, which would end automatic bulk collection under Section 215 of the Patriot Act, or allows Section 215 to expire as scheduled June 1.
It's unclear what court-ordered policies would govern stored call records if congressional action or inaction curtails surveillance powers.
The Foreign Intelligence Surveillance Court currently requires records that otherwise would have been deleted after five years be "preserved and/or stored in a format that precludes any access or use by NSA intelligence analysts for any purpose" except for compliance with preservation orders -- though that's little comfort to some privacy advocates.
