Among the documents leaked by Edward J. Snowden to the Guardian in June 2013 was an April 2013 order by the FISA Court directing Verizon to provide the National Security Agency (NSA) records of “telephony metadata” for all foreign calls between the U.S. and other countries and all domestic calls within the U.S, including local calls. After the Verizon Order was published, the Wall Street Journal reported that since 2006 AT&T, Sprint, and Verizon have been providing metadata to the NSA every three months which is being stored by the NSA in a large database. The metadata provided to the NSA includes the telephone numbers on both ends of the call, the locations where the call was made and received, the duration of the call, and the time of the call. The collection of metadata is indiscriminate, meaning that it is collected from all U.S. citizens making phone calls, not just those suspected of terrorism or other criminal activity. Although the conversation itself is not recorded, the compilation of records detailing who Americans are calling, for how long they speak, and from where they are speaking can reveal information that may be relevant in criminal cases.
According to this article by NBC News, a defense attorney in Florida is attempting to gain access to the telephone records compiled by the NSA in an effort to prove his client’s innocence in a murder trial. The defendant, Terrance Brown, claims that the NSA records can prove his innocence by showing that he was not at the scene of the crime when the murder took place. Brown’s cell phone provider, MetroPCS, was unable to produce the records during discovery because they had already deleted the records from their database.
Click here to read the order by District Court Judge Robin Rosenbaum requiring the federal government to respond to Brown’s discovery request for the NSA records. In response, the government filed a motion stating that the telephone metadata is classified and whether or not the government has the phone records is also classified. Specifically, the motion states that the government does not have the cell site information sought by Brown. The government also cites the Classified Information Procedures Act (CIPA) which allows the government to speak with the judge in camera and ex parte regarding classified information to explain what data it does or does not have.
According to the NBC News article, experts say that the “novel legal argument” used by Brown’s attorney could encourage other defense attorneys to pursue the records held by the NSA database during discovery. Before June 2013, attorneys were unaware that these NSA records existed, but according to Mark Rasch, former head of the Department of Justice Computer Crimes Unit, “now lawyers know, and they will ask for it.” Rasch notes that “you can’t hold massive amounts of personal data with impunity” and there are responsibilities that come with storing data which could open the NSA up to discovery.
In most cases, the cell phone provider is the best source for getting telephone records as it is not clear what records the NSA has collected or whether courts will order that the NSA provide this information through discovery in criminal cases. However, cell phone providers delete data after a certain period of time. In cases where the cell phone provider does not have the requested data and defense attorneys believe that cell phone data can provide exculpatory information, attorneys may consider seeking discovery from the NSA.