Court to DOJ: About That Meta-Data You Said You Didn’t Have … [Update II]

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The Southern District of Florida Blog reports that the Government has some 'splaining to do in a case pending there, given the recent NSA data-trawling revelations.

The defendants are charged with a string of armored-car robberies. As part of its investigation, the Government obtained (and later produced) phone records for the period beginning September 1, 2010. One of the defendants also wants call records for July 2010, when one of the robberies took place, because he says that will support his claim that he was somewhere else at the time. Previously, the Government said it tried but failed to get the records from the service provider, and therefore "advised Defendant that it did not have the records." Actually, Government (this recent order states), Defendant thinks you probably do:

Defendant Brown urges that the records are important to his defense because cell-site records could be used to show that Brown was not in the vicinity of the attempted robbery that allegedly occurred in July 2010. And, relying on a June 5, 2013, Guardian newspaper article that published a FISA Court order related to cellular telephone data collected by Verizon, Defendant Brown now suggests that the Government likely actually does possess the meta-data relating to telephone calls made in July 2010 from the two numbers attributed to Defendant Brown.

"Meta-data," as you probably know by now if you didn't already, is data about other data but not actually part of it (my definition). For a phone call, the main "data" would be the conversation, and the "meta-data" would be things like when you made the call, what the closest cell tower was when you made it, the number you called, and so forth. That's what Brown wants, and what the Government told him it doesn't have and couldn't get. Only, it does have his meta-data, because it has everybody's meta-data:

As relevant here [the court went on], the [FISA] Order appears to authorize, under 50 U.S.C. § 1861, the production of “all call detail records or “telephony metadata” created by Verizon for communications … wholly within the United States, including local telephone calls.” The Order defines “telephony metadata” as “comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (MSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call.”

I'm guessing Brown was a Verizon customer, but it probably doesn't matter.

Under 50 U.S.C. § 1806, the target of such surveillance can ask for the information obtained. If the Government claims disclosure would harm national security—and you get no prizes for correctly guessing whether it will do so here—then the court reviews the matter in private to decide whether the surveillance was lawful (otherwise the review is in open court). Accordingly, the court ordered the Government to make the national-security claim if any immediately (yesterday was the deadline), because the trial is apparently underway.

As the court noted, the Government could avoid this particular unpleasantness by producing the requested material and stipulating that it would not use it against the defendant. I shall now go see how it responded (if it did) and update accordingly.

Update: The docket available online doesn't show any response by the Government at all. There is a docket entry dated June 11, the day after the order was issued, that is described only as "restricted/sealed until further notice." That could be it, or it could be something else you're not allowed to know about.

Update II: The Sun-Sentinel reports that the Government asked for more time to respond (to be fair, they only had two days), and the judge agreed to allow "an extra week or two." "There are security procedures that must be followed," said an AUSA, and since this is a citizen asking for his own cell phone records, presumably the "security" problem lies in explaining just how the Government happens to have them when nobody else does. Or, more likely, in figuring out how not to explain that.