Lederman, Kerr and Greenwald on the NSA Database Program

May 11, 2006

The blogosphere's heavyweights on the constitutional and statutory implications of domestic surveillance are weighing in on the blockbuster USA Today article on the NSA's database of domestic phone records.
At Balkinization, Marty Lederman writes:

My second reaction was to wonder about the legality of the program. It didn't strike me as violative of the Fourth Amendment, at least so long as the Supreme Court's unfortunate "pen register" precedent remains good law. But at first glance, it sure does appear to run up against several statutory restrictions that Congress and the President have enacted in order to protect the privacy of our phone calls and phone records, not least of which is FISA itself, which, for purposes of that statute, defines the "contents" of a communication quite broadly, to include "any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication." 50 USC 1801(n).

Also, as the USA Today story noted, 47 USC 222(a) & (c)(1) provide that "Every telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to, other telecommunication carriers, equipment manufacturers, and customers, including telecommunication carriers reselling telecommunications services provided by a telecommunications carrier" and that "Except as required by law or with the approval of the customer, a telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provision of a telecommunications service shall only use, disclose, or permit access to individually identifiable customer proprietary network information in its provision of (A) the telecommunications service from which such information is derived, or (B) services necessary to, or used in, the provision of such telecommunications service, including the publishing of directories."

After a very detailed analysis of the possible statutory issues raised by the program, Orin Kerr writes:

To summarize, my very preliminary sense is that there are no Fourth Amendment issues here but a number of statutory problems under statutes such as FISA and the pen register statute. Of course, all of the statutory questions are subject to the possible argument that Article II trumps those statutes. As I have mentioned before, I don't see the support for the strong Article II argument in existing caselaw, but there is a good chance that the Administration's legal argument in support of the new law will rely on it.

At Unclaimed Territory, Glenn Greenwald, author of How Would a Patriot Act? writes:

Ultimately, however, the always-overarching issue is that it doesn't really much matter how these fascinating and academic statutory debates are resolved because the administration has claimed repeatedly that it has the right to violate statutes like this if its doing so is in pursuit of the national defense.