Kerr: Falkenrath is Wrong

May 18, 2006

Writing in the Washington Post today, former Bush administration official Richard Falkenrath argues for the legality of the NSA phone records database.
Orin Kerr says he's wrong on at least one key point:

Falkenrath is just wrong about ECPA. He states that "the Electronic Communications Privacy Act of 1986 explicitly permits telecommunications companies to provide customer records to the government if the government asks for them." No, it doesn't. There is no "government request" exception to the ban on disclosure.

Kevin Drum takes, ahem, exception with Falkenrath's claim that records in the database are anonymous:

Even a child knows that phone numbers can be linked to names and addresses using ordinary commercial databases. There is absolutely nothing anonymous about this data, and only a shameless con man would try to convince us otherwise. Why does the Post give space to this obvious agitprop?