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Remember Terrance Brown? He’s the robbery suspect in Florida who says that cell phone location data could help him prove his innocence. However, his phone company doesn’t retain location data for very long, so his attorney asked the NSA to hand it over. Nobody expected the NSA to roll over easily on this, but their actual response has come as a considerable surprise:

The government’s response to Lewis’ request, filed with the court last Wednesday, says the NSA does not have such a capability: The agency didn’t collect location data under the phone surveillance program, so there were no records to turn over, the court filing said. “The program described in the classified [Foreign Intelligence Surveillance Act court] order cited by the defense did not acquire such data,” the filing stated, adding that “the government has no reason to believe” location data were being held by the government that could be turned over for the criminal case. ….”Given that the FISA Court order says that the government can have location data, it’s quite odd to hear the government claim that it doesn’t ‘collect’ that data,” said Susan Landau, a former Sun Microsystems engineer and an expert on digital surveillance. Mark Rasch, a former federal cyber-crime prosecutor and the owner of a technology and cyber-law company based in Bethesda, Md., […] said he was inclined to believe the government’s assertion that it wasn’t collecting Americans’ phone location data on a massive scale. He cited a declarative statement in the government’s denial in the robbery case: “The government does not possess the records the defendant seeks.” “That’s pretty unequivocal,” Rasch said.

This is very strange. Rasch is right: NSA’s statement is pretty unequivocal, and it would be risky for them to flatly lie in response to a subpoena. It would be especially risky given that Edward Snowden might very well know whether they’re telling the truth, and Snowden would obviously take some joy in exposing an NSA lie.

And yet, WTF? If this information exists, and they have the legal right to it, why wouldn’t NSA collect it? It’s obviously not because they think it would be creepy to track the movements of every cell phone user in the country. Right? So what’s the deal?