In recent weeks, there have been a flurry of motions exchanged in two courts over what kinds of "telephony metadata" records the government should be keeping, or deleting. It's a pretty confusing mishmash related to lawsuits that a few advocacy groups, including the Electronic Frontier Foundation, have been involved in regarding government secrecy extending back to 2006.

On Feb. 25, Department of Justice lawyers told the Foreign Intelligence Surveillance Court (FISC) that they needed special permission to hang on to their records for longer than the five years that they normally do in order to comply with evidence-retention rules for lawsuits brought by the activist groups. The FISC judge, Reggie Walton, denied their request, noting that there was no preservation order for that metadata. In other words, delete as you usually delete.

But in fact, there were such orders in place—at least in the view of activist groups like EFF and ACLU, which filed lawsuits in San Francisco federal court. Those groups jumped to attention to stop any deletion and to alert Walton about existing orders in the lawsuits.

Today, Walton has a new order suggesting he's pretty upset that DOJ lawyers didn't tell him about the existing orders. It's an unusual expression of displeasure with the government by a FISC judge. Walton says his order to keep up the normal record-destruction regime "was based on the belief that no preservation requests or orders applicable to the data in question existed." He continues:

As the government is well aware, it has a heightened duty of candor to the Court in ex parte proceedings. See MODEL RULES OF PROF'L CONDUCT R. 3.3(d) (2013)... [T]he government was on notice, as of February 26, 2014, that the plaintiffs in Jewel and First Unitarian believed that the orders issues by the District Court for the Northern District of California required the preservation of the FISA telephony metadata at issue in the government's February 25 Motion. The fact that the plaintiffs had this understanding of those preservation orders—even if the government had a contrary understanding—was material to the FISC's consideration of the February 25 Motion... The government, upon learning this information, should have made the FISC aware of the preservation orders and of the plaintiffs' understanding of their scope, regardless of whether the plaintiffs had made a "specific request" that the FISC be so advised. Not only did the government fail to do so, but the E-mail Correspondence suggests that on February 28, 2014, the government sought to dissuade plaintiffs' counsel from immediately raising this issue with the FISC or the Northern District of California... [T]he Court expects the government to be far more attentive to its obligations in practice before this Court.

Walton concludes by asking the government to explain what happened in a filing due by April 2.

A lot of confusion is still present around this issue, including why the government brought this issue up in the first place. It seems hardly coincidental that unnamed government sources spoke to the Wall Street Journal for a Feb. 19 article about how the NSA database would be growing as an "unintended consequence" of data retention for activist lawsuits. In any case, the result has been to focus the attention of at least two judges, and their opponents, on the preservation of evidence.

In any case, the government seems to have pivoted from asking for permission to preserve evidence, to wanting to go ahead and delete or "age-off" the old data, which is the position they took—unsuccessfully—in a hearing in San Francisco federal court this week.

The activist groups are in the unusual position of fundamentally wanting the data deleted, and yet needing to make sure the data is preserved long enough for them to prove their case. As an EFF lawyer noted at the hearing, the government's position is that their clients have to show that they were individually surveilled in order to even have standing to bring a lawsuit. That position "requires the retention of the very records that now they're seeking to destroy," EFF's Cindy Cohn told US District Judge Jeffrey White. White is overseeing the two anti-NSA-spying cases, styled Jewel v. NSA and First Unitarian Church v. NSA.

Today, White issued a wide-ranging evidence preservation order "reminding" all parties in the lawsuit to preserve "documents, data and tangible things" relevant to the case.