Now that the mass collection of telephone records by the NSA under Section 215 of the Patriot Act has ended due to the passage of USA Freedom, the question has arisen: what should the NSA do with the big mass of records that it already has? The secret FISA Court recently asked the government what it thinks should happen, and EFF sent a letter to the FISA Court (by way of the Department of Justice, asking that it be conveyed to the Court) giving our perspective.

EFF, and our clients, are in the thick of these questions because of our two pending cases, Jewel v. NSA and First Unitarian Church of Los Angeles v. NSA. In both cases, we sought not only the end of the mass telephone records program, but also a remedy for the past 14 years that the records were illegally collected. In both cases, we have orders from the court requiring the government to preserve relevant evidence, including our clients' call records.

We sued to stop the government from collecting the records in the first place, so we would obviously like to see those records destroyed as soon as possible, even as our lawsuits continue.

But here’s where it gets weird. The government continues to maintain that, despite the admitted "mass" nature of the telephone records collection, no one (other than Verizon Business customers during a three month window in 2013) can sue because they do not have sufficient proof that their records were actually collected.

Seriously. Even after a two-year, public debate about NSA surveillance and Congressional action about the mass telephone records program. Even after the President, other members of the executive branch, Congress, the press, and the public fully and freely discussed the fact that the government was gathering the records of millions of Americans. After all that, the government continues to claim that there's still not enough publicly known to demonstrate "standing" to sue.

So what to do? In our letter, we explained to the secret FISA court that we are willing to discuss options that will allow destruction of the records in ways that still preserve our ability to prosecute the cases. In fact, we've offered to do that since March, 2014, when the question of evidence preservation in the phone records cases first came up. But, so far, the government has been unwilling to seriously discuss options.

The government appears to want us to agree to let them destroy the best evidence proving that millions of Americans were illegally monitored without agreeing to a plan that would allow the legality of that collection to be considered by a court. We can't and won't do that, of course. But we know there are practical ways to preserve judicial review without requiring the government to keep the illegally collected records of millions of innocent Americans.