USA Today reported this morning that the National Security Agency has been collecting phone records of tens of millions of ordinary Americans with the willing cooperation of the phone companies (except Quest which refused to hand over records without a court order). This disclosure caused an irritated President Bush to make a brief statement this morning. I quote the statement in its entirety:
After September the 11th, I vowed to the American people that our government would do everything within the law to protect them against another terrorist attack. As part of this effort, I authorized the National Security Agency to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. In other words, if al Qaeda or their associates are making calls into the United States or out of the United States, we want to know what they’re saying.
Today there are new claims about other ways we are tracking down al Qaeda to prevent attacks on America. I want to make some important points about what the government is doing and what the government is not doing.
First, our international activities strictly target al Qaeda and their known affiliates. Al Qaeda is our enemy, and we want to know their plans. Second, the government does not listen to domestic phone calls without court approval. Third, the intelligence activities I authorized are lawful and have been briefed to appropriate members of Congress, both Republican and Democrat. Fourth, the privacy of ordinary Americans is fiercely protected in all our activities.
We’re not mining or trolling through the personal lives of millions of innocent Americans. Our efforts are focused on links to al Qaeda and their known affiliates. So far we’ve been very successful in preventing another attack on our soil.
As a general matter, every time sensitive intelligence is leaked, it hurts our ability to defeat this enemy. Our most important job is to protect the American people foreign another attack, and we will do so within the laws of our country.
Thank you.
You will notice that the President does not deny the facts of the USA Today story. He also specifically notes that the Administration’s "international activities" strictly target al Qaeda. He leaves open the possibility that domestic activities cast a much wider net. He also notes that the Administration is "not mining or trolling" through the "personal lives" of Americans. Mr. Bush is parsing very hard here to make a distinction between personal lives and personal records. The distinction is between contents of a phone conversation and records of a phone conversation. That distinction allows Mr. Bush to escape the clutches of the 4th Amendment.
However, this new NSA spying disclosure does violate at least one and perhaps two laws enacted by Congress. Where FISA does not apply, access to phone records are covered by the "pen register" or "trap and trace device" laws. The two relevant laws are 18 U.S.C. §§3121-3127 and 50 U.S.C. §§1841-1846. In order to get the phone records of a "U.S. person" the Government must get a court order. If the Government is arguing that they need the order for foreign intelligence or terrorism related activities and the information does not concern a "U.S. person", the Government must also get a court order. In both cases the application for the court order must show that the information requested is "relevant to an ongoing criminal investigation" or is "relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities". In the case of a foreign intelligence investigation, there is a provision for an emergency authorization where the Attorney General can approve the gathering of information without a court order provided that an application is made for an order within 48 hours. There is also a provision in the law that states that in a time of war the President can authorize the collection of phone records without a court order for up to 15 calendar days following a declaration of war by Congress. There is also a requirement for the Attorney General to make detailed annual reports to Congress regarding collection of U.S. persons’ phone records and a requirement for the Attorney General to make detailed semi-annual reports to the "Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate" regarding collection of phone records related to foreign intelligence or terrorism.
The Bush Administration is almost certainly violating the law by not getting the required court orders. If the program is as widespread as has been reported the Administration would have had to apply for and receive tens of millions of court orders. The Bush Administration may also have violated the Congressional oversight requirements of the statutes. Judging by the reaction in Congress today it appears that Congress was not fully briefed by the Administration.
The argument from the Administration will probably again be reduced to a defense on the President’s alleged inherent Article II powers as Commander-in-Chief during wartime. The President will argue that the Constitution gives him inherent authority to violate duly enacted laws in his capacity as Commander-in-Chief. This is a flimsy argument at best and is quite easily debunked. In the end the Administration is left with no Constitutional leg to stand on.
When the law and the Constitution are not on his side, the President can, in the final analysis, rely upon the Republican controlled Congress to turn a blind eye once more.
Mash, as usual, well written, well thought out and oh so true.
And I am proud to see the picture of Captain Mandrake. How fun you got to use that one and not even gratuously (sp?)!
You could have studied political science, you do well with semantics! lol (but then that’s the math side of you, picking things apart…)
Ingrid
greetings. i saw your post on think progress and thought i would respond here since there is so many inaccurate postings their from the usual suspects that to unpack them would be a task too large…
anyway, i think that 18 usc 2701 (c) is a more appropriate statute. as i read it the two statutes to which you refer discuss ‘pen registers’ and as i think that the information that was released improperly by the phone companies is the actual records, as described in that section.
however, that being said, i know that senator feinstein mentioned ‘pen records’ today at a judiciary committee meeting where this issue was discussed, so, you may be correct in your choice. It could be both, perhaps.
regardless, it is clear that if the records were released, or a pen register was used, the telcos violated the applicable statute(s).
peace,
james risser
wow… i made so many grammatical errors above, i think i will just go to sleep. my apologies for messing up your page…
with apologies,
james
Hi James, ThinkProgress is a zoo today.
I looked at 18 usc 2703 (c) (SCA) and it may apply. My guess is that 18 U.S.C. §§3121-3127 and 50 U.S.C. §§1841-1846 (pen registers and trap and trace) might be more appropriate.
Here’s my rationale: It depend on whether NSA is using stored data or real-time or near real-time data. If they are using stored data than SCA probably applies. Otherwise its the statutes I cited.
Now, if I were designing this system and was trying to get the massive amounts of data NSA is getting, I would not want to use a batch process to load large amounts of data. It would be easier and more efficient to get the data incrementally as it comes in. It will give you a more even load on the system and eliminate huge reconciling events every time a batch of data is imported into the database. The real-time or near real-time incremental (or event driven) data acquisition would suggest collection of data at network hubs before the data is stored into the telcos’ data warehouses. This means setting up "pen registers" and "trap and trace". In practice, these devices are no longer used. It now simply requires the telco to make slight modifications to their routing sytems on their backbone networks. NSA is simply tapping in.
So, that is my long-winded reason for thinking the SCA does not apply. But, as you said, the end result is the same. One or the other law has been violated. That is really the important issue. :d
James, one more thing. Feel free to butcher the English language anytime you like in the comments. I firmly believe in freedom of expression and the First Amendment:”>**==
i see. yes, that makes sense. i was hooked on the word ‘record’ assuming the paper was making the distinction made in the sca’s relevant sections. but, if the nsa took a more active role, dynamically collecting data, then i agree with you completely.
peace,
jim
james, thinking more on your comments, it occurs to me I might have overlooked one thing. Initially, the NSA would have had to get a static dump of all the phone records to seed their database. Afterwards they could do real-time or near real-time data transfers.
So, it seems to me that for the initial dump of stored phone records, the NSA is probably also in violation of 18 usc 2703 (c) (SCA), as you stated. For subsequent transfers they are like in violation of 18 U.S.C. §§3121-3127 and 50 U.S.C. §§1841-1846.
Thanks for binging up the SCA, until you mentioned it, I had dismissed it on first reading. #:-s
don’t know if you saw the nyt article today where the qwest attorney speaks about why his firm did not participate.
here is a link to the Telecommunications Act of 1996 in .pdf. Section 702 is, i think the relevant section. I don’t have the US code reference, and i need to go get some coffee….
james, I havn’t read it yet. Reading it now that you linked to it. The plot thickens! :d
James, just read the NYT story. I’m still looking at the Telecomm Act. In the mean time, my go-to guy on the SCA, Professor Orin Kerr, has written a post on the topic (he dismisses the SCA as not applicable similar to my first analysis, but I think taking into account my second take on it, he might also rule it in). Unfortunately, looks like he punted on the Telecomm Act. I may comment on his post about how the SCA may also apply.
Also, check out Bruce Schneier’s blog on the NSA story. Schneier is the guy all us techies interested in cryptography want to be when we grow up.:">
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