More From Orin Kerr and Marty Lederman on the NSA Phone Records Database

May 12, 2006

Orin Kerr offers more thoughts on the NSA program:

My still-very-tentative bottom line: The companies were probably violating the Stored Communications Act by disclosing the records to the NSA before the Patriot Act renewal in March 2006, although the new language in the Patriot Act renewal at least arguably made it more likely that the disclosure was legal under the emergency exception.
First, let's update the facts. It now looks relatively clear that the NSA was not directing the telephone companies to conduct any particular monitoring on the NSA's behalf. Rather, NSA officials were persuading the telephone companies to voluntarily disclose their call records to the government. In other words, the government wasn't actually doing the monitoring, but instead was encouraging the telephone companies to disclose call records to them that the telephone companies already had collected.
In light of those apparent facts, the key issue to me becomes whether the disclosures were permitted under the Stored Communications Act, and specificially 18 U.S.C. 2702. (For a "user's guide" to the Stored Communications Act, see here). Telephone companies are providers of "electronic communications service to the public" under the Act, and the Act regulates when providers can disclose non-content records of account information to the government. The ban is in Section 2702(a)(3):

Professor Kerr continues with an analysis of the text of the statute and the exceptions to the general provision. There is lots of good discussion in the comments on the post as well.
This from Marty Lederman:

After a bit more reflection, and as explained below, I think it's safe to say that at least some of the statutory arguments against the program might not be as strong as they first appeared -- depending on the particular details of the program, which we of course do not know. But at least two other statutory objections appear to remain very formidable.

It would be much easier to evaluate the various legal arguments if the Administration had simply come out and informed the Congress and the public that it was developing a phone-records database, and had offered a legal basis for doing so. Unfortunately, this Administration's modus operandi is to withhold from the public any information at all, even at a very general level, about what the government is doing in the war on terror -- and to keep the vast majority of Congress in the dark, as well. The President and his spokespersons are all over the television today arguing that disclosure of this program is a grevious blow to national security. But I've yet to hear any plausible justification for the secrecy of the program, or any serious argument about why its disclsoure is so dangerous. If, as the New York Times reports, the Administration thinks it's invaluable to have telecom companies provide phone records to the NSA "of most telephone calls in the United States," to be used "for the limited purpose of tracing regular contacts of 'known bad guys,'" and further believes that such a vast program is legal, why can't they simply announce those facts, and publicly make the case for why the program is legal? After all, if it is legal to collect such a database, wouldn't it make perfect sense for the government to do so? Why, if the program is legal, would it come as any surprise at all to Al Qaeda and its affiliates that the government is taking advantage of such a resource?

Professor Lederman discusses in detail the relevant statutory provisions, so please click through to read it all.