Kerr’s Legal Analysis of the NSA’s Phone Records Program
posted by Daniel Solove
I was planning to do some analysis of the legality of the NSA’s phone records program, but Orin Kerr has already accomplished it. His posts are terrific and are essential reading:
* Thoughts on the Legality of the Latest NSA Surveillance Program
* More Thoughts on the Legality of the NSA Call Records Program
In the latter post, Kerr analyzes whether the telephone companies violated the Stored Communications Act, 18 U.S.C. 2702. Section 2702(a)(3) prohibits phone companies from knowingly divulging customer records to any governmental entity. Kerr notes that the most relevant possible exception to this restriction is 18 U.S.C. 2702(c)(4), as amended by the Patriot Act renewal of 2006, which allows disclosure to “a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.” Kerr notes:
The language that passed as part of the Patriot Act in 2001 allowed disclosure only when “the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information.” This was the language in place from October 2001 until March 2006. Did the phone companies have such a belief under the 2001-06 language? I gather they had a reasonable belief of danger, but I don’t know of a reason to think that they had a reasonable belief of “immediate” danger. If this was a program ongoing for several years, then it’s hard to say that there was a continuing reasonable belief of immediate danger over that entire time.
Kerr also explains that the Patriot Act renewal earlier this year made a few tweaks to this exception:
The change expanded the exception to allow disclosure when there is a good faith belief instead of a reasonable belief, and when there was a danger instead of an “immediate” danger. I wouldn’t be surprised if the telephone companies were pushing the change in part out of concern for civil liability for their participation in the NSA call records program.”
Much more at Kerr’s posts.
UPDATE: Marty Lederman also has some excellent analysis that’s definitely worth reading.
May 12, 2006 at 10:35 am
Posted in: Privacy, Privacy (Electronic Surveillance), Privacy (National Security)
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Responses (7)
Simon - May 12, 2006 at 11:34 am
I’ll pose the same question here that I posed at Orin’s thread:
§2702(c)(4) says that a provider “may divulge a record or other information pertaining to a subscriber to or customer . . . to a governmental entity, if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information.”
Even if we give a broad reading to the term “any person” does not narrow the focus of the exception to a good faith concern of imminent harm to primarily an individual, or perhaps a specific and narrowly-drawn group, which would otherwise seem the more natural import of the term “any person” in this context, surely it would take a fairly broad reading of the term “emergency” – one that classified the threat of terrorism as an emergeny, rather than an ongoing threat – for §2702(c)(4) to apply?
An emergency is “something dangerous or serious, such as an accident, which happens suddenly or unexpectedly and needs immediate action in order to avoid harmful results.” A terrorist attack may become an emergency when it happens or is immimently going to happen, but is it really an emergency when there is simply the ongoing possiblity of it happening? Is the presense of a nuclear reactor in a town an “emergency” because there is an ongoing possibility of meltdown? Or does it only become an emergency when a meltdown either happens or takes on an imminent and immediate likelihood of happening.
It just doesn’t seem as if a permanent, ongoing background terrorist threat falls into the kind of “emergency” that the normal use of the language in the §2702(c)(4) exception covers.
Deven Desai - May 12, 2006 at 1:24 pm
The Washington Post has an article Poll: Most Americans Support NSA’s Efforts that indicates 63 percent of Americans thought the NSA program was acceptable because security interests are more important than privacy. If the poll is accurate an interesting counterpoint appears to be latent in the American mindset. The poll found that 56 percent thought that the press revealing the program was proper. Further, 66 percent “said they would not be bothered if NSA collected records of personal calls they had made.”
So my question is: Do Americans not care about privacy as long as they know that they are being monitored? Further could it be that Scott McNealy’s analysis that consumer privacy was dead and that people should “Get Over It” has taken hold in a deep way? In short have Americans found such a lack of privacy protection that when the government engages in dubious surveillance it does not surprise or upset them as a problem?
I don’t say any of the above as justification for the programs or as commentary on their legality. Rather I am curious about what others think about the implications of the poll assuming for the moment that it is accurate.
MJ - May 12, 2006 at 3:38 pm
My two cents:
1. Most folks know that they are doing anything wrong, and thus don’t care about disclosure of something as unintrusive as the phone numbers they dial, or receive.
2. Given the amount of personal information acquired by the IRS, the census, political parties, internet/ credit card/telemarketing company lists: people view a government created phone list as a drop in an already existing bucket – correctly so in my view.
3. The Bush administration has made supportable – no, not unassailable, end-the-debate, no point in discussing this anymore – arguments as to why these programs are necessary, or at least advisable, for our national security.
4. The arguments against these programs have been, for the most-part – IMHO – hyperbolic and bordering on irrational. People who don’t HATE the President and everything about him, think that his administration is taking these measures for legitimate reasons.
Simon - May 12, 2006 at 4:03 pm
MJ,
I was thinking something similar to your fourth point while watching Sen. Durbin’s comments on the program during the judiciary committee yesterday. And the thing is, it’s not that what he’s saying is totally ludicrous (a personal first for Richard J. Durbin), and in some ways, I agree with it; the problem is that whatver their actual merits, his comments can’t be taken seriously because it is so readily apparent from his previous behaviour that he sees this as his chance to get in front of the cameras and preen – for himself and his party – to try and scrape together a few votes. I know that might seem bizarre to people who have read the polls, and noticed that most Americans have no objection to this program, but do yourself a favor: find a democrat and ask him about this program, and they will tell you how awful they think it is. Bizarre as it’s going to seem, they really think this is a vote winner for them, and the problem is, they are so obviously desparate for votes that even when they are raising legitimate concerns – and I think there are legitimate concerns about this kind of program – they just can’t be taken seriously.
This is why I would go further than rejecting cameras in the Supreme Court; I would throw them out of Congress, too.
jb - May 12, 2006 at 6:35 pm
Here’s something you can do about domestic spying
annegb - May 13, 2006 at 9:43 am
I’m just an ordinary citizen, not a lawyer and I don’t care who listens in to my phone calls (unless it’s my neighbor who I’m talking about).
I think the fact that a majority of Americans don’t care reflect the fact that we have nothing to hide and feel the government is doing the best it can in flawed and difficult circumstances.
It’s not a huge legal issue to me. It’s common sense.
notthere - May 15, 2006 at 7:38 am
As a legal and intelligence neophyte, a question:
Did they rewrite the areas of responsibility? Shouldn’t the NSA be acting through or atleast cooperating with the FBI when operating on internal intelligence and security. I also can’t see how you can say lists telephone records are signals intelligence as defined as being NSAs remit. Seems NSA stepped out of their professionally defined area, no?
Also, I am not as sanguine as annegb or MJ. They define no limits and there is no oversight. Everything is as legal as they say it is and there are no challenges. It’s all a bit overreaching with no recourse. That’s not healthy.
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