Thursday, May 11, 2006
The (Il)legality of the NSA Phone-Records-Interception Program
My first reaction on reading the groundbreaking story in USA Today about the NSA's secret phone-records-interception program was that Qwest stock is going to go through the roof. Don't take that as a tip -- I'm woefully unreliable on such matters. But there are at least some customers who know a law-abiding, customer-protective company when they see it. (If you haven't yet read the USA Today story, do youself the favor of at least reading the section toward the end, on the hardball tactics applied to Qwest, and its very admirable resistance.)
Violations of the Stored Communications Act have $1,000 per customer statutory minimum damages, plus attorney's fees. I think that is why Qwest's lawyers were so worried about liability. No explanation yet about what those damages wouldn't apply, as discussed at www.thinkprogress.org.
On the issue of the fine, don't get your hopes up:
The Stored Communications Act has a defense available. See Sec. 2707, which refers to 2511(3) which refers to 1125(2). In sum, if the companies had a good faith belief that they received "a certification in writing by . . . the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required. . . ." it looks like they are off the hook.
On the issue of whether the acts violate the fourth amendment:
I think this is still a live issue because the reasoning in Smith v. Maryland is based on the idea that phone users do not have a legitimate, reasonable expectation of privacy in who they call. However, the fact that laws like the stored communications act, FISA, and other privacy laws now exist give people a reasonable expectation of privacy in that information. When what is protected by the Fourth amendment depends upon what is reasonable to believe is private, a statute might be able to affect what is reasonable, thus changing the contours of fourth amendment protection. Although, I don't think there are five votes for this and the constitution is often only as good as five votes.
Not a good defense on the apparent facts. USA Today specifically said that there was no AG certification. Also, even the certification would be subject to the "good faith" requirement on the part of the company.
It doesn't really seem to matter that the existance of laws requiring the government to get a warrant may create an expectation of privacy in regards to who they call. Once you grant that there is a law which prevents exactly this sort of behavior, i.e., people's reasonable expectation of privacy was extended to cover this sort of case, the argument is over and you can conclude the president acted illegally regardless of the effect on the 4th ammendment.
Of course this argument might have some force if the executive tried to claim that this congressional statute was unconstitutional insofar as it constrained the executive. Even if the law is declared unconstitutional it could still create a reasonable expectation of privacy (people didn't know it was unconstitutional) and thus make the president's actions illegal. Additionally the same argument could apply even if you believe that ridiculous claim about the AUMF.
It's a neat little argument but the idea that congress can't restrict the executive's power to intercept phone calls or that the AUMF authorized this is so absurd in the first place that this last ditch 4th ammendment argument isn't even worth more than academic consideration.
I think it is still a topical issue, because the reasoning of Smith v. Maryland is based on the idea that phone users do not have a legitimate expectation of privacy reasonable in what they call. However, the fact that laws like the Communications Act registration, FISA, and privacy laws, there are now giving people a reasonable expectation of privacy in the information. When that is protected by the Fourth Amendment depends on what is reasonable to believe that it is private, a law may be able to influence what is reasonable, to change the contours of Fourth Amendment protection. Well, I do not think that there are five votes, and the constitution is often as good as five votes.
I think it is still a topical issue, because the reasoning of Smith v. Maryland is based on the idea that phone users do not have a legitimate expectation of privacy reasonable in what they call. However, the fact that laws like the Communications Act registration, FISA, and privacy laws, there are now giving people a reasonable expectation of privacy in the information. When that is protected by the Fourth Amendment depends on what is reasonable to believe that it is private, a law may be able to influence what is reasonable, to change the contours of Fourth Amendment protection. Well, I do not think that there are five votes, and the constitution is often as good as five votes.WOW GoldWOW Items GoldBuy WOW ItemsCheap WOW ItemsTera Goldbuy tera goldTera GoldBuy WOW Gold
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