Thursday, May 11, 2006
Further Thoughts on the Lawfulness of the Newly Disclosed NSA Program
In an earlier post, I offered some preliminary thoughts about the legality of the NSA program by which the NSA has asked telecommunications providers to disclose phone records (but not contents) of millions of domestic calls, presumably so that NSA might look for patterns in such calls indicating possible ties to Al Qaeda. I quoted Orin Kerr as identifying four possible statutes that might prohibit what the NSA and the phone companies are alleged to have done. (Both Orin and I concluded that under current Supreme Court doctrine, this program standing alone probably does not violate the Fourth Amendment. [UPDATE: That Fourth Amendment doctrine is, IMHO, seriously flawed, and has been subject to serious challenge, in part because it could lead to the conclusion that dragnets such as that at issue here are constitutional. See, especially, Patricia Bellia's powerful critique in Surveillance Law Through Cyberlaw's Lens, 72 Geo. Wash. L. Rev. 1375, 1397-1412 (2004), which can be found at pages 24-40 of the document downloadable here.]
"Mr. President, why did you bother getting a 2703(c)(2) authorization if your executive power and/or the UAMF renders such an authorization unnecessary?"
A possible reason why the Administration failed to obtain the administrative subpoena that would have put the program in compliance with the SCA...
According to Admiral Bobby Ray Inman, Hayden's predecessor at the NSA, the only reason they aren't looking at the contents of all of these voice communications is because it is (currently) too difficult. However, it's a different story altogether with email - i.e. they are actually spying on the content of emails.
This might be a stupid question, and it deals more with the wiretapping scandal than with the pen register one, but don't people have a "reasonable expectation of privacy" under the fourth amendment if the president tells them he won't spy on their phone calls? Does that matter at all? Can that trump some of the statutory arguments and case law?
I talk a little bit more about it here.
I'd be really interested to know the answer.
I took a quick look at 50 USC 1801, and I wonder if perhaps you are asking too precise a question. You say that "it's not obvious that this NSA program involves electronic surveillance by the agency." Does it have to?
As I read the statute, it appears to define "electronic surveillance" without regard to whether or not the government is the one doing the surveillance. It just requires "acquisition by an electronic, mechanical, or other surveillance device." I'm sure these weren't paper files that we handed over. "Acquisition by electronic surveillance device" was what was going on in AT&T's secret switch rooms in San Francisco and other cities. How else could the records of these millions of calls make it from our phone lines into the NSA's database?
We're poor little lambs who've lost our way, Baaa, Baaa, Baaa!
(sorry, Cambridge to New Haven thing)
What I want to know is what NSA does when it discovers "anomolous patterns" indicating a purely domestic threat with its data mining program. According to press reports, NSA has used the data mining program to identify international calls - it then wiretaps. And we know NSA bypasses the FISA court and wiretaps these international calls without a warrant.
So how about domestic calls? Are we to believe that NSA goes to FISA when it has detected a purely domestic threat?
Keep in mind, the Bushies like establishing separate, compartamentalized programs under NSA. The international wiretapping program is separate from the data mining program. Is there a third, even more secret program that bypasses FISA to monitor domestic calls?
The bottom line is that the Supreme Court has held that merely collecting phone numbers is not a violation of FISA or the Fourth Amendment. Further the reporting on this conveniently fails to provide any historical background concerning Article II of the Constitution, not to mention the Federalist Papers, 67-77, which provide for broad authority for the Executive in times of war or threats to national security. For a more in depth analysis, please see my posting of 5/11 and 2/2 at my blog: www.clearcommentary.com
The bottom line is that the Supreme Court has held that merely collecting phone numbers is not a violation of FISA
The post expressly says that the NSA's actions do NOT violate FISA.
...or the Fourth Amendment.
It also expressly says that they don't violate the Fourth Amendment.
not to mention the Federalist Papers, 67-77, which provide for broad authority for the Executive in times of war or threats to national security.
You mean like this (from #69): "The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature."
Apart from a couple of related sentences in Federalist 74, this is the ONLY clause in the 11 papers you cited which refers to Presidential war powers. Your blog provides no further details that I saw on the two dates you mentioned.
Whatever power the President may have under Article II -- and I frankly think the arguments are specious -- it's pretty hard to see how that power would allow him to ignore statutes governing communications by Americans to Americans.
Dave has a point really. Expectations of privacy surely are affected by what the President says. The SC in cases like Payton v. NY noted Congress can have some role here. So does the President, surely in some overall sense.
thanks for the information, Joe. Maybe this is actually worth looking into? I don't know, I'm not a lawyer. Now I guess the question is whether or not expectations of privacy trump the reasons it wouldn't violate the 4th amendment.
Would it not be possible for the phone companies to appeal to 47 usc 222(c)(3) as an exemption to the requirements of 47 usc 222(c)(1)?
An interesting case regarding the application of 18 U.S.C. § 2702 is In re Application of U.S. For a Nunc Pro Tunc Order For Disclosure of Telecommunications Records, 352 F.Supp.2d 45 (D. Mass. 2005).
In that case, an unnamed telecommunications provider gave records to the government voluntarily without a court order. Afterwards, the government went to court to get an order permitting the disclosure. The court denied the motion because the statute does not permit retroactive authorizations.
The court discussed 18 U.S.C. § 2702 and found that “the statutory scheme is rather straightforward. The government can obtain the records pursuant to a court order provided a sufficient showing is made to the court.” It went on to say that any after-the-fact authorization would not protect the company from a lawsuit since the disclosure, when made, was not authorized under the statute.
It also found that there were sufficient provisions to accommodate emergency situations that required immediate disclosure, such as cases involving an immediate danger of death or serious physical injury. The Homeland Security Act of 2002 also added an authorization for such disclosures.
In the absence of such an emergency (i.e. – an immediate threat, not a speculative future one), the disclosure of phone records to the NSA without prior court approval would appear to violate the provisions of 18 U.S.C. § 2702 and leave the phone companies subject to liability.
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