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More Thoughts on the Legality of the NSA Call Records Program:
We now have a slightly better idea of the factual and legal issues surrounding the newly-disclosed NSA Call Records program, and I thought I would offer a second analysis that is more focused and more factually informed than the one I posted this morning. 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):
[A] provider of . . . electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications . . . ) to any governmental entity.
Of the possible exceptions to the statute, three are most likely to be relevant. They permit disclosure under the circumstances listed in 18 U.S.C. 2702(c), as amended by the Patriot Act renewal of 2006:
(2) with the lawful consent of the customer or subscriber;
(3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;
(4) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency[.]
(Note that the link to the Cornell site's text of 2702 does not have the latest version of the exceptions, as it was last updated in the fall of 2005 and the exceptions were amended in March 2006. I was unable to find the new version on a website, and ended up taking it from Westlaw.).

  Let's take each of these exceptions in turn.

  (1) The first exception permits disclosure if the subscriber consents. There are no cases interpreting eactly what consent means in 2702(c)(2), but like many of the exceptions in the SCA it is clearly a copy of an analogous exception in the close cousin of the SCA, the federal Wiretap Act, 18 U.S.C. 2510-22. We do have lots of cases on what consent means in the context of the Wiretap Act, so those cases presumably create the applicable standard here. The basic rule: Consent means that the user actually agreed to the action, either explicitly or implicitly based on the user's decision to proceed in light of actual notice. Here's what the First Circuit said on this in United States v. Lanoue, 71 F.3d 966, 981 (1st Cir. 1995):
Keeping in mind that implied consent is not constructive consent but 'consent in fact,' consent might be implied in spite of deficient notice, but only in a rare case where the court can conclude with assurance from surrounding circumstances that the party knowingly agreed to the surveillance. We emphasize that consent should not casually be inferred, particularly in a case of deficient notice. The surrounding circumstances must convincingly show that the party knew about and consented to the interception in spite of the lack of formal notice or deficient formal notice.
  Did users consent to the disclosure under this standard? The Washington Post reports that government lawyers seemed to think so, based on small print in the Terms of Service of the telephone service customer agreements:
One government lawyer who has participated in negotiations with telecommunications providers said the Bush administration has argued that a company can turn over its entire database of customer records — and even the stored content of calls and e-mails — because customers "have consented to that" when they establish accounts. The fine print of many telephone and Internet service contracts includes catchall provisions, the lawyer said, authorizing the company to disclose such records to protect public safety or national security, or in compliance with a lawful government request. . . . Verizon's customer agreement, for example, acknowledges the company's 'duty under federal law to protect the confidentiality of information about the quantity, technical configuration, type, destination, and amount of your use of our service,' but it provides for exceptions to 'protect the safety of customers, employees or property.' Verizon will disclose confidential records, it says, "as required by law, legal process, or exigent circumstances."
  This seems like a very unpersuasive argument in light of the cases construing consent under the Wiretap Act, of which the consent provision in the SCA is a mirror. It reminds me of the argument that a DOJ lawyer once tried to make that monitoring prison phones was allowed because language in the Code of Federal Regulations clearly notified prisoners that their phones would be monitored. According to the lawyer, the notice in the fine print of the CFR was sufficient to make the monitoring consensual. Judge Posner rejected the argument, calling it "the kind of argument that makes lawyers figures of fun to the lay community." United States v. Daniels, 902 F.2d 1238 (7th Cir. 1990). In light of these cases, I think the consent argument is weak. (Incidentally, if you look up Daniels, note that Posner incorrectly states later in the opinion that the Second Circuit accepted such a weak notice argument. If you read the Second Circuit case, it is clear that the CA2 did no such thing and that Posner was just being sloppy.)

  (2) The next possible exception is disclosure "as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service." This is known as the provider exception, and is also a copy of an analogous exception from the Wiretap Act, 18 U.S.C. 2511(2)(a)(i). You can read all about this exception here: basically, it gives providers rights to disclose information to the government to help the providers combat illegal service and unauthorized use of the network. It seems pretty clear that this doesn't apply: The cases make clear that the provider exception exists to further provider interests, not government interests.

  (3) The third and final exception is the emergency exception, which permits providers to disclose "if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency." At the outset, it's worth noticing something very interesting about this language: It is almost brand spanking new. The language that passed as part of the Patriot Act in 2001 allowed disclosure only when "the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information." This was the language in place from October 2001 until March 2006. Did the phone companies have such a belief under the 2001-06 language? I gather they had a reasonable belief of danger, but I don't know of a reason to think that they had a reasonable belief of "immediate" danger. If this was a program ongoing for several years, then it's hard to say that there was a continuing reasonable belief of immediate danger over that entire time.

  As noted above, though, the Patriot Act renewal passed in March 2006 changed this language. And it did so in a way with potentially important implications for the legality of the NSA call records program. The new exception states that disclosure is permitted "if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency." Few people were paying attention to this change at the time, but I would guess that it was very important to the telephone companies: The change expanded the exception to allow disclosure when there is a good faith belief instead of a reasonable belief, and when there was a danger instead of an "immediate" danger. I wouldn't be surprised if the telephone companies were pushing the change in part out of concern for civil liability for their participation in the NSA call records program. (Or perhaps not, come to think of it: Does the new language suggest that the information disclosed needs to relate to the emergency to be covered? What if the provider doesn't know what information relates to the emergency?)

   More tomorrow, I hope.

  (cross posted at OrinKerr.com)
SLS 1L:
Is it possible that the purportedly voluntary, government-solicited disclosure by the companies is state action? I believe conduct "encouraged" by the government can be state action, though I don't have any clear understanding of when. (Thankfully, there wasn't much about state action on my conlaw exam this morning.) If the conduct is state action, then it might be that the statutes prohibit companies from disclosing the information at the request of the government.

Actually evaluating this would require knowing much more about national security law, and doing more research, than I'm prepared for at quarter to 1. But it's a thought.
5.12.2006 4:47am
DG:
The reference in WaPo to Daytona got me thinking: what if the telcos are doing the data mining for the NSA? This article in a Japanese paper has an interesting description of an affadavit from a former AT&T technician. He describes a secret room next to the company's main switching equipment, to which only an "NSA-selected technician" had access. The article says that "the room contained special data mining equipment capable of processing vast amounts of communication traffic [...]"

So what if the NSA isn't getting any of the raw data or doing any of the data mining? What if it's helping the telcos do their own data mining? It seems like an argument could be made that the product of this data mining would not be a "record" under the SCA or "customer proprietary network information" under the Communications Act.

Further evidence (from NYTimes):

"The theory is that the automated tool that is conducting the search is not violating the law," said Mark D. Rasch, the former head of computer-crime investigations for the Justice Department and now the senior vice president of Solutionary, a computer security company.
5.12.2006 6:20am
Smithy (mail) (www):
I think that regardless of whether or not it is legal it should be done. After 911, we learned that oceans cannot protect us. There are people out there who want to kill us all. This is a small price to pay. Frankly, I think it would be best if the government listened to all of our phone calls, foreign and domestc. We are at war. Those who oppose having their phone calls monitored -- what are they hiding? The government is welcome to listen to all of my phone calls anytime it wants to -- all they will learn is that I love my country and hate terrorists.
5.12.2006 7:09am
johnt (mail):
Ok it's a bit off thread but the Daniels case re Posner strikes my non-lawyers mind as rather funny. You don't need a convicted prisoners consent to put him in a cage, but you do need it to monitor his phone calls,----- after notifying him yet!! Which notification forewarns him in any conversations he might have with his lawyer or for that matter his drug pushers.
It's the kind of argument that makes judges and the courts "figures of fun'. Good old Posner, slipping and sliding like a drunken ice skater.
5.12.2006 7:52am
Medis:
With respect to the third exception, it seems to me that even given the new language, there has to be an "emergency", and the information provided has to "relate" to the emergency.

I'm sure that the Administration will be willing to claim that we have been in an open-ended "emergency" since 9/11, and that every call record in the United States "relates" to that emergency. I'm also pretty sure that if that claim ever gets before a court, it will be soundly rejected as absurd.
5.12.2006 8:07am
Barry P. (mail):
This is a small price to pay

When does the sum of the "small prices" become too large a price to pay? Before or after it's too late to do anything about any of the "small prices"?

A bunch of Afghan cave-dwellers is too trivial an enemy to flush the Consititution over.
5.12.2006 8:07am
Anonymous Reader:
I wouldn't say that the govt should or has the right to listen to all phone calls as the previous commenter stated. But these last few posts about the NSA program are very telling.

I could probably agree with those who say you shouldn't "assume" that the govt is doing the right thing in regards to this program and that the probability for abuse is there. However, in order for there to be abuse, someone has to step up and say that the info was misused. Right now, all I read is conjecture and conspiracy theories about what "might/could/probably/etc" happens with the info.

To restate the obvious, this is a top secret program. If those in the know felt that this was an egregious violation of privacy, civil liberties, etc, then I would ASSUME that they took the required steps in informing the Inspector General of the NSA or DOJ. I read somewhere that Harry Reid knew about the program but wasn't satisfied with the briefings. What a cop out, if there's a problem, say it loud and clear so that those in position to fix it can fix it and keep the country safe. And please don't try to argue that his hands were tied. If this was such a violation of our rights, those in places of power should put their jobs on the line and become the whistleblower. Oh, that's right... it's not THAT important to lose a position of power over... /sarcasm.

To say what this program might/could do is a nonstarter. Guns could do a lot of things too, so could vehicles. But I believe that you would have to show some type of violation in order to have standing in the courts. From my limited understanding, courts are supposed to be reactionary.

It frustrates me when good debate is ruined by those who keep referring to what "might" happen. I don't know how many times my personal information is "sold" from company to company. Is that a violation of my privacy? I would think so!! But alas, the motives are different... on one hand, it's okay if you are selling my info for profit...
and it's NOT okay for someone who is trying to keep the people of this country safe...

One thing that I have not seen discussed is the nature of terrorist cells. Everyone has heard of "6 degrees of separation". Well, terrorist cells operate in the same fashion. That way if someone is captured, they only know limited info about another cell even though they may both have the same ends. So by tracing the pathways of calls, intel can determine the size and scope of the phone tree. If you think every cell calls OBL then you're crazy. But one person calls the HQ, get's his marching orders, calls the next person that he knows, and so on and so forth. All without knowing who that second person is down the chain. Is that so hard to believe or imagine?

So before we get too worked up about things, let's stick to basic facts and information.

Anonymous Reader
5.12.2006 8:12am
Jeremy Pierce (mail) (www):
I can't see how it wouldn't be immediate danger. Unless there's some legal meaning to that term that is far removed from its normal sense, the threat al Qaeda poses is one that's hidden and thus could surface at any moment and do much serious damage. If that's not immediate danger, then nothing is.
5.12.2006 8:32am
Medis:
Anonymous Reader,

I'm not sure I understand. Lots of discussions about government are structural in precisely that sense--we worry about concentrating certain powers into the hands of certain governmental entities without sufficient oversight and regulation, because we are worried about the potential for abuse of that power. And those worries are grounded in our long history with governments, which does in fact suggest that sweeping governmental powers without oversight and regulation are frequently abused by the people who hold such powers.

Accordingly, we try to place structures in place to prevent that sort of thing from happening. Indeed, that is what much of our Constitution is about, and much of our laws as well. And in that sense we are trying to stop abuses of power before they happen, not simply address abuses of power after they happen.

So, when people in government start ignoring those structural limits, and try to concentrate power without oversight and regulation into their own hands, we reasonably get worried. And those worries need not depend on actually knowing that they have already abused those powers, because the point of those structures was to prevent abuse before it happens, not simply address it after the fact.
5.12.2006 9:08am
wm13:
Barry P, your "Afghan cave dweller" friends killed 3000 people in offices like mine in front of my eyes one beautiful fall morning. And you are concerned that the government has a copy of the phone company's record of who you called?
5.12.2006 9:12am
Spoons (mail):
"[A] provider of . . . electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service...."

I'm not sure this applies here. My understanding of the program is that the telcos are turning over raw data without any names attached. In that case, I'm not convinced that this data is "information pertaining to a subscriber or customer."
5.12.2006 9:22am
Michael B (mail):
"And those worries need not depend on actually knowing that they have already abused those powers, because the point of those structures was to prevent abuse before it happens, not simply address it after the fact."

Abuse, potentially, pertains to doing too little (negligence) as well as positive abuse. An executive needs to avoid both. (E.g., to what degree did negligence occur, in the long wake of WTC '93?)

Too, if the concern is genuinely and sincerely with privacy, then we should be seeing a full-bore movement by all those who are now anxiously concerned, with an IRS overhaul or gutting and replaced by a more equitable and far less evasive tax system (flat tax, value added, etc.) since the federal govt. via the IRS gathers (and not for fundamental security needs but merely for tax gathering and enforcement) copious quantities of financial and other information on citizens, info which is far more extensive and far more evasive, typically, than this NSA program.

Too, while we know of no abuses of the NSA program, we positively do know of abuses which pertain to the IRS.

So where's the outrage and the laugh-track mentality vis-a-vis the IRS's data on citizens? And the abuses which pertain to that data? Ergo, to some appreciable degree, the concern is not first and foremost with privacy, it pertains far more to BDS and similar obsessive/compulsive behaviors.

A fact: 8 1/2 years between WTC '93 and 9/11. Another fact: a report in Britain recently noted they were insufficiently prepared (cf. negligent) leading up to their 7/7.

Reality matters.
5.12.2006 9:41am
Anonymous Jim:
"My understanding of the program is that the telcos are turning over raw data without any names attached. In that case, I'm not convinced that this data is 'information pertaining to a subscriber or customer.'"

Well they aren't telling the government that I made the call, true enough (if initial reports are accurate). But how hard is it for them to find out who I am? How many publicly available data banks could give them my name?

For those of you who are supportive of the government listening to our calls (the program as described does not do this but some here advocate it) would you trust that Bill Clinton or (egads)HRC would use the data solely for the purposes of fighting international terrorists? Or do you think once they had the data they might be tempted to use it for other purposes. I mean after all might have such data mining prevented Oklahoma City, Ruby Ridge, Waco?
5.12.2006 9:49am
John Lederer (mail):
What about 2703 which permits the call log informaion to be released pursuant to an administrative subpoena? Would section 505 of the Patriot Act be such a subpoena authority and would the FBI be authorized to get the records as "relevant" to an investigation and "give" them to the NSA?
5.12.2006 10:12am
Northerner (mail):
I still don't get why 2702 applies in the first place. That statute applies only to "electronic communications services," a term that is specifically defined in section 2510 to include "any transfer of signs, signals, writing, images, sounds, data, or intelligence," but NOT "oral communication." I don't think that 2702 applies to phone records at all, except to DSL lines and/or dial-up Internet connections.


To be specific:

2702(a) says: " person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service . . . ."

Turning to 2510, section (12) of that statute provides, in part:

"electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce, but does not include - (A) any wire or oral communication . . . ..

So it specifically excludes "wire or oral communication." What do those terms mean? Again, 2510 provides the answer:

Section (1): "wire communication'' means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception . . . ."

Section (2): "oral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication.


Summary: 2702 is specifically designed to exclude oral communications, and to apply only to "electronic" communications instead.
5.12.2006 10:42am
Anderson (mail) (www):
Mr. Lederer, I'm not up on the statutes, but see this from Kate Martin at the ACS Blog:
It is important to note that the Patriot Act specifically provided that the FBI did not need a court order, but could use a National Security Letter – a form of administrative subpoena – to obtain such records. The Congress specifically withheld such subpoena authority from the NSA. The FBI investigates people or groups when it has some predication, however minimal that there is a nexus to terrorist activity. The NSA has no such limitation and thus wasn’t given this broad subpoena power by the Congress. Instead the Congress required the NSA to convince the FISA court that the information would be relevant.
Is that relevant?
5.12.2006 10:45am
Northerner (mail):
I forgot to mention: We look at section 2510 for the definitions because the Act says so in section 2711:

"the terms defined in section 2510 of this title have, respectively, the definitions given such terms in that section."
5.12.2006 10:49am
Ohm (www):
Northerner -- Electronic Communications Service is also a defined term. 2510(15). It means "any service which provides to users thereof the ability to send or receive wire or electronic communications;" Voice phone calls are wire communications. (Oral communications refer to spoken communications; the definition is used in the prohibition against, among other things, hidden microphones).

Phone companies are the paradigmatic electronic communications services.
5.12.2006 10:50am
Steve:
Northerner: Refer to the definition of "electronic communication service" in section 2510(15), which includes wire communications as well as electronic communications. In case there is any doubt that a phone call is a wire communication, that term is defined in section 2510(1).
5.12.2006 10:52am
Medis:
Michael B,

I, for one, am also concerned about the IRS abusing its power.
5.12.2006 10:58am
Northerner (mail):
Well, how does it make any sense to say that an "electronic communications service" includes wire communications when "electronic communication" is specifically defined to EXCLUDE wire communications? Poor statutory drafting?
5.12.2006 11:06am
Cala:
I, for one, am also concerned about the IRS abusing its power.

Me too. Look, some people are saying that they're not so worried, because the government's not going to target them, because they're honest! and not a terrorist! I'm sure they'll only target the bad guys!

How do they know, a priori, who are bad guys, and who aren't? That's presuming an incredible amount of a priori competency from a government that is also responsible for the Department of Motor Vehicles, is all I'm saying.
5.12.2006 11:07am
johnt (mail):
medis, re your 8:08 post. But it is precisely those structures that we are debating. To remind us that they exist is superfluous but to point out that this issue occurs in wartime would be helpful if not educative. Your post did not mention this distinction which, given our history, might cast a different light on said structures.
One thing the NSA programs seem not to have lacked is oversight. Allowing for secrets during time of war this is probably the best known and most publicized secret in our history.
5.12.2006 11:13am
Bruce Hayden (mail) (www):
I can see Medis' point that if there is a potential for abuse, then abuse often follows. But I think that the big problem for me is not the NSA program itself, but the apparent lack of walls between the NSA and other agencies. It is one thing for a bunch of people with TS (or most likely higher) security clearances having potential access to my call information. After all, if they disclose the information, they could go to jail. But it is far different, in my mind, for them to share it with other agencies that are not nearly as secure.

So, my worry is that they share it with other agencies, like the IRS, and low level employees there essentially sell the information to others. Besides all the horribles Medis pointed out for that agency, it has been shown to have corruptable employees. I will admit to some prejudice here, but I worked briefly at a couple of the IRS data sites almost 20 years ago, and was not the least bit impressed with the quality of the employees there. The one that was the most worrisome that I spent time at was in Detriot.

As an IRS footnote, I worked as a programmer for Census from the mid to late 1970s preparing for the 1980 Decennial Census. At that time, we had the only set of merged IRS files in existance, with all those W-2s, 1099s, merged in with the actual tax returns. We did it to get accurate address lists for the Census. We also merged in all the drivers license files and a bunch of other stuff that privacy advocates would have screamed about if they had known. In any case, the IRS took almost another decade to do what we had done - but Census is a data sink - raw data goes in, but never comes out, so we couldn't send it back merged to the IRS.
5.12.2006 11:13am
Shangui (mail):
I think that regardless of whether or not it is legal it should be done. After 911, we learned that oceans cannot protect us.

This is a small price to pay. Frankly, I think it would be best if the government listened to all of our phone calls, foreign and domestc.

Those who oppose having their phone calls monitored -- what are they hiding?


I can't believe I'm about to use this phrase without a touch of irony, but Smithy, I believe you really do hate freedom. And for my second similar phrase, if your wishes come true, Smithy, the terrorists really will have won.

But seriously, if you are willing to give up some of your most basic civil liberties, what's left that you love about this country? You can't really think that if you gave up these liberties to the federal gov't that further incursions into our economic and other liberties wouldn't follow. What would you not allow the gov't to do in the name of protecting us from terrorists? I'm very serious about this question.
5.12.2006 11:19am
Ross Levatter (mail):
The war on terror has given us:

"Immediate danger"...forever.

It is conducted against us by unknown people, therefore "everyone" is a suspect worthy of search, be it their persons at airports or their conversations in phone records.

Logically, it is only a matter of time until the same arguments offered today are used to routinely open and search all of our mail. Who could complain? Only the guilty have anything to hide. What possible difference could there be between listening to all conversations and reading all mail. (How convenient the government has a monopoly on first-class mail...)
5.12.2006 11:30am
John Lederer (mail):
Mr Anderson,

Thanks for the pointer. I concure that the NSL has to come from the FBI, but the FBI probably can share the data with the NSA -- see 2709(d):


(d) Dissemination by Bureau.— The Federal Bureau of Investigation may disseminate information and records obtained under this section only as provided in guidelines approved by the Attorney General for foreign intelligence collection and foreign counterintelligence investigations conducted by the Federal Bureau of Investigation, and, with respect to dissemination to an agency of the United States, only if such information is clearly relevant to the authorized responsibilities of such agency.
5.12.2006 11:39am
Jeek:
The war on terror has given us:

"Immediate danger"...forever.


Al Qaeda has given us immediate danger, forever. They have shown beyond any doubt that they won't be ignored and they won't go away. The only question is, what are we going to do about it?
5.12.2006 11:48am
Steve:
Al Qaeda has given us immediate danger, forever.

9/11 was a terrible, terrible event. But it's sad to see people still wetting the bed over it.

Our country has faced far greater threats to its existence than al-Qaeda, a group that has managed to carry out two attacks inside the US over the span of two decades. We should be bringing the perpetrators to justice and destroying the organization, yes. But it's hardly a threat that necessitates changing our way of life or declaring a permanent state of emergency.
5.12.2006 12:01pm
Michael B (mail):
Medis,

Maybe, though the IRS's abuses have been a well known and a long and protracted set of data gathering and intrusive problems, predating WTC '93 and 9/11, it's hardly a recent phenomenon. People have been willing to give up this aspect of their freedom and privacy for a lengthy period of time now - without blinking.

But regardless, I was excerpting from your post more to lead into the matters indicated - highlighting the NSA/IRS comparison since that comparison, given the purported concern with freedom and privacy issues, is almost revelatory in terms of the light it throws on BDS - than to point to or quibble with you specifically.

Still, I remain unconvinced. The comparison (IRS/NSA) is simply too striking and too telling a set of contrasts. The IRS is incredibly intrusive and typically people do not blink, in fact it's taken for granted as a fact of life and those who question it are even looked upon as if they're Branch Davidians of Ted Kyzenskys. People have essentially accustomed themselves (by the govt. and MSM) to take the IRS's intrusiveness lying down and passively; yet they're reacting like banshees vis-a-vis a surveillance program with no proven abuses and which is designed to protect against an existential threat, not merely collecting taxes.

The NSA/IRS comparison is simply far too telling and far too revealing a contrast.
5.12.2006 12:02pm
Anonymous Reader:
Medis,

I understand your point about structures. But from my understanding, select congressmen are briefed on the programs in question. My point is that if they themselves have problems with particular safeguards to information or the actual activities of the program then they need to be willing to risk their careers to get the administration to listen. To say that the briefs are inadequate is to say that they have no business providing "oversight" on any issue.

These leaks do nothing to address the problems. All it does is polarize people on possible issues that may or may not be the main issue.

Give me someone who's willing to pay the price to shine the light on an issue (i.e. Sen Coburn) and really stick their neck out and then I'd be willing to pay more attention. Otherwise, we're just dancing around the issue playing with possibilities.

Anonymous Reader
5.12.2006 12:04pm
Rational Actor (mail):
Jeek -
There are a lot of things that are being done about it. I, for one, am not willing to gut the Constitution and allow the executive branch unbridled authority to do what it chooses. Although I don't really like the idea too much, I am not overly troubled if the government is tracking telephone calling patterns in an attempt to identify terrorists.
However, I am very concerned if they are doing so in a manner that violates the law.
And, if that is the case, what are we going to do about it?
5.12.2006 12:10pm
Medis:
Northerner,

As these things go, it isn't even that bad a drafting job--I've seen plenty of statutes where you just can't figure out at all what the definitions mean. Here, they probably should have used the term "wire or electronic communication service", but for some reason shortened it to just "electronic communication service".

johnt,

I certainly think the dangers we currently face are relevant to how we design our legal structures. As an aside, however, I would suggest that comprehensively redesigning those structures in light of new dangers is not something the Executive Branch is empowered to do on its own. Indeed, that is primarily a job for the Legislative Branch.

But I was responding to Anonymous Reader, who was arguing, "To say what this program might/could do is a nonstarter." My point was just that the potential abuses of such powers is not a "nonstarter" because it is a historically well-motivated concern.

jeek,

Exactly. Are we going to be so terrorized by Al Qaeda that we are willing to sacrifice any amount of freedom, respect for law, and similar values in the name of protecting ourselves from the threat they pose? Or will we have the courage and self-confidence to believe that we can beat Al Qaeda without sacrificing the principles and values which have made this country great?
5.12.2006 12:10pm
Medis:
Michael B,

I don't think I am alone in being concerned about both the IRS and the NSA--and, for that matter, expansive and intrusive government in general. But more to the point, I'm not sure how this comparison helps you. In short, I think you are making a good case for people being more concerned about the IRS, not a good case for people being less concerned about the NSA.

Anonymous Reader,

I see no reason to defend the lousy job of oversight Congress has done since 9/11. But it strikes me as odd that you are counting on career politicians to have the courage to stand on principle whenever necessary, and that you intend to ignore any issue until such a profile in political courage occurs. Personally, I don't trust politicians that much, which is why I think an informed and active citizenry must remain viligent and dedicated to holding all their elected leaders accountable for their failings.
5.12.2006 12:18pm
Anderson (mail) (www):
"Viligent"! I like it! "Villainy" + "diligence." "Mohammed Atta's viligence made 9/11 happen."
5.12.2006 12:22pm
Anonymous Reader:
Medis,

I see your point and forgive me for sounding pollyannish about politicians, I don't fully trust them either. It was just that to leak the information instead of going through the proper channels is what upsets me. But back to your point, you say that there should be structures in place to provide oversight, but who would provide the oversight? I guess ultimately we the people provide oversight by electing officials who we feel have our best interests at heart. I guess that's part of the problem. Doesn't it sadden you that we have no "hero's" in political office who would stand up for what was right? I'm thinking someone along the lines of "Mr Smith goes to Washington".

Anonymous Reader
5.12.2006 12:25pm
Freder Frederson (mail):
Frankly, I think it would be best if the government listened to all of our phone calls, foreign and domestc. We are at war.

So Smithy, I don't suppose you would mind if the FBI walked into your house (no need to knock) and had a look around, peered over your shoulder while you were on the internet, rifled through your underwear drawer, asked how many guns you owned, where you kept them and then asked to see them. Of course you have nothing to hide. You should run down to the police station and give them a set of your keys, tell them to come on in and search your house anytime they feel like it.
5.12.2006 12:32pm
Medis:
Anderson,

Hah!

Anonymous Reader,

There is no easy answer to how to keep the government from abusing its powers. Obviously, things like the First Amendment freedoms (speech, press, petition, assembly) help. So do things like FOIA. Within government itself, we can use devices like the separation and balance of powers. For example, in general, it seems to work reasonably well to divide the executive, legislative, and judicial powers, and provide for different people selected in different ways holding the different powers at the same time.

Unfortunately, though, we do seem to lack "heroes" in elected offices right now. But I think we only have ourselves to blame--we have let political partisanship dominate our elections to such a degree that loyalty to party, and not independence and moral courage, is what typically leads these days to electoral success. Of course, that is not a new story, and these things tend to be cyclical--we just happen to be in a part of the cycle where partisanship is particularly dominant.
5.12.2006 12:36pm
Rational Actor (mail):
I think there may be a bit of a Catch-22 situation here -- even if there are elected officials who are briefed on the activities, they are briefed on a classified basis and don't themselves have the ability to criticize or even reveal the activities publicly. So, any Mr. Smith who raised a stink about a classified program, even if it was patently illegal, would immediately be labeled a treasonous traitor.
5.12.2006 1:05pm
John (mail):
I think Orin is being too slippery when he says, "This seems like a very unpersuasive argument in light of the cases construing consent under the Wiretap Act, of which the consent provision in the SCA is a mirror."

The telco customers have a written agreement with the telco. The fact that it's in small print strikes me as a dopey argument. The agreement is binding according to its terms--that is what must be analyzed and that is what Orin neglects.

What are the words in the customer agreement? Wouldn't that be a more lawyerly way to begin this?
5.12.2006 1:10pm
Dave Hardy (mail) (www):
1. If I were a telecom company seeking to cover my tail against civil liability, "believes that an emergency involving danger of death or serious physical injury to any person requires disclosure," would seem pretty anemic protection for a request for records of all phone calls on a theory that "emergency" can cover some manner of risk that endures day after day for years.

2. As a practical matter, the operations seems to illustrate how gov't tends to expand and seek more info regardless of need. Certainly, if you have suspects, knowing who they called (and who the people they called called) can be invaluable. I believe there is even software to analyse this, and create an interesting tree depiction of a conspiracy. But why spend the money, time, and politcal risk to gather it on 260 million people, when 259.99+ million of them will be of no interest?

3. Which in turn illustrates the tendency of gov't to drown itself in data. The problem is more often analyzing that data. In retrospect we can see that we had data before 9/11 that suggested its occurence. FBI agents were reporting suspicious people taking flight training without takeoff and landing instruction, there was the seized laptop, etc. But the info was never put together. Programs like this simply increase that problem.
5.12.2006 1:11pm
Jeek:
But it's sad to see people still wetting the bed over it.

9/11's economic impact was at least hundreds of billions of dollars in scope, and was executed fairly simply. It is absurd to dismiss out of hand the idea that AQ could execute equally or even more devastating attacks, and it is even more preposterous to contend that the fear of major terror attacks is irrational and we should "get over it".

Our country has faced far greater threats to its existence than al-Qaeda,

But they were different in kind - they were states. They can far more easily be deterred and punished than transnational terrorist groups.

Should Al Qaeda ever gain access to nuclear weapons, then they will be the greatest threat we've ever faced, period.

I am very concerned if they are doing so in a manner that violates the law.

If the law prohibits pattern analysis of telephone calls, the law needs to be changed.

Exactly. Are we going to be so terrorized by Al Qaeda that we are willing to sacrifice any amount of freedom, respect for law, and similar values in the name of protecting ourselves from the threat they pose? Or will we have the courage and self-confidence to believe that we can beat Al Qaeda without sacrificing the principles and values which have made this country great?

We are going to have to adapt to this threat, and screaming hysterically that every adaptation represents a sacrifice of our essential principles and values is both false and ridiculous. I fail to see that the NSA program, as it has been thus far described, does represent such a sacrifice.

One could just as well ask, "shouldn't we have the courage and self-confidence to allow the government to conduct pattern analysis on our phone calls without whining that this tramples unacceptably on our freedom?"

I don't suppose you would mind if the FBI walked into your house (no need to knock) and had a look around, peered over your shoulder while you were on the internet, rifled through your underwear drawer, asked how many guns you owned, where you kept them and then asked to see them.

The FBI doesn't need to come to your house to find out how many guns you own or what kind they are.
5.12.2006 1:30pm
The Original TS (mail):
I'm sure that the Administration will be willing to claim that we have been in an open-ended "emergency" since 9/11, and that every call record in the United States "relates" to that emergency.

Yes. Good point. I don't see how you can define the current state of affairs as an "emergency" without defining the term out of existence. The idea of a "perpetual emergency" is both grammatically abhorent and smacks of the antics of a tin-pot military regime. It's also capable of extension without end. If the "war on terror" is an emergency, why not the "war on drugs" or the illegal immigration "crisis" or any one of a hundred important long-term issues that the government must actively address?

One of my biggest problems with the administration is that there has been far too much hand-waving and knee-jerking and far too little legal analysis and thoughtful policy making. "But we're at war!" is not a recognized canon of statutory interpretation.
5.12.2006 1:31pm
mark allen (mail):
Privacy is an invention of law professors, nobody else believe in it. Anyone can get anyone's phone records Regular people hope the phone companies are giving the government information so they can track down people who might be trying to kill them. We all agreed they could do this when we signed up for service. We already know the companies share information with "business partners". We live in a world where Amazon knows more about us than the NSA or the CIA. Trying to keep it that way seems kinda stupid when it could get us killed.

mark allen
5.12.2006 1:40pm
OrinKerr:
John,

You are thinking of this as a contractual question: It's not. It's a question of consent under the electronic surveillance statutes, and needs to be analyzed accordingly. That's why I'm not being "slippery," and you're not being "more lawyerly" than I am.

Orin
5.12.2006 1:47pm
LakeHouston:
The only reason the administration has a reputation of skirting the law is because of the knee-jerk reactions of the leftist media in this nation automatically questioning the motives of every action of this Republican administration. Add to it this almost continuous drip drip leaking of of classified materials by insiders who are sympathetic to the anti-war crowd and will stop at nothing to embarrass the administration, is it any wonder the President's poll numbers are in the tank? It isn't politically correct to remind the anti-war crowd that we ARE actually at war and when looking at historical precedent previous administrations actions in war time make the current administration seem positively benign, in comparison. If our government has phone numbers of known terrorists or even suspected terrorists and they are trying to unravel the convoluted twists and turns of sleeper cells as they move about the country, I would think it extremely negligent if the government didn't use ever tool at its command to prevent a future attack. Data mining call records (via computer, no one is actually doing this manually), is a relatively inocuous form of gathering information. My gosh, we see nothing wrong with signing up for a Kroger frequent shopper card and don't think twice about their keeping track of every roll of bathroom tissue, box of corn flakes, and bottle of beer we buy. And many of these retail operations then SELL this info to OTHER retail operations (including our address and phone numbers) so we can have "targeted marketing" descend upon us. THAT isn't a problem, but when the government tracks phone records to prevent me from losing my life....I get upset? Please!
5.12.2006 1:48pm
Kate1999 (mail):
LakeHouston,

I assume you were equally upset with all of the hostility to Bill Clinton for his very minor and insignificant wrongs in the 1990s? Or let me guess -- you thought Clinton was pure evil and should have been kicked out of office. Right?
5.12.2006 1:56pm
Rational Actor (mail):
LakeHouston -
First, I disagree with your assertion that the leftist media is the only reason people believe this administration skirts the law.
Second, how do you know who it is that leaked the most recent bit of information regarding the NSA data collection; how can you be sure that it wasn't leaked by someone sympathetic to the current administration trying to deflect attention from issues such as, say, rising gas prices or tax break extensions or other issues that have been in the news and dragging approval ratings down. If you haven't noticed, twice as many people think the president is doing a lousy job as think there is something wrong with the phone call tracking database. So, assuming that the party affiliated with the leaker did their market research, they would have concluded that this news should, if anything, boost the president's popularity.
As it relates to your Kroger comment -- people voluntarily agree to participate in those programs. I do not; every time the drug store or supermarket asks me if I want a valued customer card, I tell them to piss off. And, I use cash for as many purchases as I can so that the credit card companies can not track me. I am not paranoid, I just value my privacy. And, out of pure coincidence, I happen to be a Qwest customer!
There are lots of problems. I am not sure that this particular NSA program is one. I am sure that the routine violations of the letter of the law, or circumventions of its spirit, by the Executive Branch of government, are.
5.12.2006 2:12pm
Joseph Kowalski:
To me, it is especially telling that there needs to be a concerted effort to convince people that there is in fact a war going on. Is terrorism a problem? Yes. Are efforts in trying to prevent terrorism justified, absolutely. But those efforts have to be governed by laws, and the laws must answer to the will of the people.
5.12.2006 2:13pm
Just an Observer:
As the legal issues about the phone-call database are being sorted out -- and in my mind they are not yet resolved -- it appears as of now that if anyone has broken any laws, it most likely is the phone companies rather than the government.

But even if everything turns out to be, well, at least not unlawful, there also are serious policy issues raised by these disclosures.

Paradoxically, we may have a situtation where:

1) In order to get a named individual's calling records for a limited time period -- either for purposes of intelligence-gathering or criminal investigation -- the government traditionally has needed at least a pen-register court order, supported at least by some official's certification under oath that the information sought is "relevant" to some legitimate investigation.

2) In order the get all such calling records for everyone in the country for an essentially open-ended period, no court order is required at all!

This seems facially preposterous.

I still wonder what authority the President has to compile and operate such a database, for example. Apparently it does come as a surprise even to knowledgeable legal observers that such a database exists. Since at best it exists between the lines of a loophole we really didn't know about until it was creatively and secretively exploited, a lot more sunlight is still needed.

If it is lawful for the telecom companies voluntarily to turn over to the government call-detail records of every phone call made in this country, there is nothing that obviously restricts the government from using this database in any way it sees fit.

Congress apparently sought to restrict creation of such a government database by forbidding telecoms to turn the data over "to any governmental entity." If that requirement is now circumvented, perhaps new language should close the loophole -- perhaps by explicitly defining what the government can and cannot do. This is properly the sort of balancing that legislatures have a responsibility to accomplish.
5.12.2006 2:17pm
therut:
I do not know yeat how I feel about this. But I wish the Democrats or the Democratic wing of the Democratic Party as they like to now call themselves had been as concerned with the Brady Bill. It took all gunbuyers the large majority buying Legally and put them in a database. Now of coarse that law was not supposed to have a database. But Clinton let won exsist. Only since Bush has it finally come about that the info on citizens who passed NICS is destroyed in 24 hours. What hypocrits. These people have for year tried to get their hands on such a data base. To fight so called "gun violence". could the government be lying to us and they really are keeping that database????????????? Do we trust them to do so????Where was the ACLU screaming privacy then?????? No where to be found except probably clapping in glee.
5.12.2006 2:21pm
Ex-Fed (mail) (www):
Don't worry, thereut. Despite tehe Administration's eagerness to tap calls and review call records of Americans (including people not suspected of terrorism), it specifically refused to let the FBI review gun purchase records for the names of suspected terrorists, and declined to ask Congress for authority to do so.
5.12.2006 2:24pm
volokh watcher (mail):
LakeHouston:

A couple of comments.

First you say:

If our government has phone numbers of known terrorists or even suspected terrorists and they are trying to unravel the convoluted twists and turns of sleeper cells as they move about the country, I would think it extremely negligent if the government didn't use ever tool at its command to prevent a future attack.

(Emphasis added.)

My response to that is simple.

If this administration has the phone numbers of known terrorists, why the hell haven't the terrorists been made the object of a black-bag job under the president's plenary Art. II C-i-C authority (due process is for people with a pre-9/11, post-1776 mindset)?

Or at least, why haven't these terrorists been arrested and sent to wherever Padilla was held for 4 years?

Is Bush waiting for the next 9-11 to say, "see, we told you so . . . you can't trust anyone but us, so I'm suspending the Constitution and declaring myself President for Life"?

Or is Bush et al., maybe, just a teeney-weeney bit misleading us about what they're really doing -- because they have no earthly idea how to do anything competently?

2. Are you Stephen Colbert? I ask in all seriousness because of the potential for irony in your post.
5.12.2006 2:25pm
Apodaca:
Putting aside the substantial legal questions about the program, one has to wonder why on earth the NSA needs everybody's calling records in order to investigate terrorists allegedly within our borders. Any rational person would start with a specific group of known or suspected foreign agents, and -- starting with their calling records -- recursively acquire additional calling records to develop an overall picture of who is talking to whom. It's the same way the government investigates any broad criminal conspiracy. (This is relatively easy to do legally, using a subpoena or a national security letter for historical records and/or a pen register order [under FISA or its criminal counterpart] for future records).

The suggestion that we will discover heretofore unknown terrorist operatives by data-mining an enormous system of domestic calling records for general patterns typical of terrorist activity is just too ludicrous for words.
5.12.2006 2:32pm
Tom Holsinger (mail):
Professor Kerr,

I too feel that you are losing it. You start with an agenda which colors your analyses.
5.12.2006 2:45pm
BobN (mail):

It isn't politically correct to remind the anti-war crowd that we ARE actually at war and when looking at historical precedent previous administrations actions in war time make the current administration seem positively benign, in comparison.


If the administrations of WWII had been so blatently and aggressively partisan as this one is, we'd all be sprechening Deutch.
5.12.2006 2:45pm
TallDave (mail) (www):
If the administrations of WWII had been so blatently and aggressively partisan as this one is, we'd all be sprechening Deutch.

FDR wiretapped his political opponents -- and the press.
5.12.2006 2:46pm
Seamus (mail):
Despite tehe Administration's eagerness to tap calls and review call records of Americans (including people not suspected of terrorism), it specifically refused to let the FBI review gun purchase records for the names of suspected terrorists, and declined to ask Congress for authority to do so.

Well, I'd expect president Hillary to close that particular loophole by establishing a gun purchase database, which she'd justify as an anti-terrorism measure. Hell, she probably wouldn't even require an act of Congress; she'd just invoke her Art. II C-in-C authority.
5.12.2006 2:50pm
BobN (mail):
You miss the point. I said "blatently". A united country can more easily win a war. A president whose twin public goals are "defending the nation" (not the constitution, mind you) and building a Republican revolution cannot unite the country.
5.12.2006 2:50pm
Anderson (mail) (www):
I too feel that you are losing it. You start with an agenda which colors your analyses.

That is the lamest thing I've read all week, which is saying a lot. Prof. Kerr's post today actually backs down from yesterday's. It's quite neutral, ideologically. See also Kerr's blog where he defends Hayden against the accusation that he misrepresented the 4th Amendment.

It's just so grimly hilarious that a conservative law prof gets accused of having an "agenda" because he acts like, you know, a conservative ... one of those "law and order" types.
5.12.2006 2:51pm
Apodaca:
Tom Holsinger, it strikes me as singularly unilluminating to make a bare allegation that Orin has an agenda (which, you imply, renders his conclusions incorrect or unreliable). Everyone has an agenda -- you included -- so this isn't much of a criticism.

Instead of indulging in hit-and-run ad hominem, could you favor us with an explanation of the defects you observe in Orin's analysis?
5.12.2006 2:51pm
TallDave (mail) (www):
Oh, and since apparently no one else pointed this out...

Doesn't Article II trump all this? These strictures are all well and good and very necessary for investigations of purely domestic threats, but this is gathering of intel pursuant to the use of military force against a foreign threat, where Congress' power to limit the President's power runs up against the Executive's Constitutional warfighting mandate.

(And no, this is not seizing a steel mill. Youngstown was a domestic property rights issue.)
5.12.2006 2:51pm
Steve:
Professor Kerr,

I too feel that you are losing it. You start with an agenda which colors your analyses.


I feel compelled to stick up for Prof. Kerr, who quite clearly is among the straightest shooters in the legal blogosphere.

I also note the use of the "I too feel" phrasing, as if the commentor is merely adding himself to a list of other people who believe Prof. Kerr is losing it. I know of no such people.
5.12.2006 2:53pm
TallDave (mail) (www):
You miss the point. I said "blatently".

Huh? How is wiretapping the press and your political opponents less blatant than anything Bush has done? Because the NYT didn't put it on the front page?
5.12.2006 2:54pm
Steve:
Well, I'd expect president Hillary to close that particular loophole by establishing a gun purchase database, which she'd justify as an anti-terrorism measure. Hell, she probably wouldn't even require an act of Congress; she'd just invoke her Art. II C-in-C authority.

I strongly favor this idea, not so much as an actual anti-terrorism measure, but more as a troll.
5.12.2006 2:55pm
Ex-Fed (mail) (www):
I have no idea whether Prof. Kerr has an agenda. But his identification of specific potentially applicable statutory provisions and his opening of a discussion about the interpretation and relevance of those provisions elevates his contribution to the discussion far above about 98% of what is being said about this subject.
5.12.2006 3:04pm
TallDave (mail) (www):
Well, I'd expect president Hillary to close that particular loophole by establishing a gun purchase database, which she'd justify as an anti-terrorism measure.

As someone who believes strongly in the 2nd Amendment, I would favor such a program, as long as:

1) It was clear guns posed a significant terrorism-related danger

2) The information could only be used to fight foreign threats, and not used for domestic law enforcement purposes
5.12.2006 3:05pm
JunkYardLawDog (mail):
I find all the chicken little talk about how the sky is falling on our rights and liberties and the terrorists have won if the government has an anonymous database of phone numbers called. People, real everyday people, might pay more attention to your dire warnings if they weren't so irrelevant to what is actually happening. Those of you screaming about the constitution is thrown away, the sky is falling, cats and dogs are living together, etc. are all acting like the government is randomly invading homes of ordinary citizens on a regular basis and carting them off to re-education camps. That just isn't happening. Its hard to get worked up into a mouth foaming rabid state when the alleged problem is to 99.99% of the citizens an intrusion on their liberty so minor, so inconsequential, that they are completely unaware of the intrusion and it has absolutely NO, NONE, NADA effect on their daily lives.

But some will say well yeah, but just wait if they get away with this then random home invasions and re-education camps are just around the corner. To this I say bollocks, the American people know when to get concerned and elect different politicians and change the laws and the courts. If *real* as opposed to *theoretical* invasions of liberty began to start happening, invasions of liberty that affected people's daily lives, the politicians involved would be done away with in short order.

So for me and I suspect the vast majority of the american people I say GMAFB. Its rational to be more afraid of what the terrorists want to do to us than it is to be afraid of our own government's efforts to try and find the terrorists. If that equation should change, the people will change the government. Until then I feel much more endangered by the ACLU and those who want to protect me from the governments efforts to catch criminals and terrorists than I do by the government's efforts to catch criminals and terrorists.

Remember its not conservatives that have re-education camps. That's the province of the left.

Says the "Dog"
5.12.2006 3:06pm
Apodaca:
JunkYardLawDog, one small question:

Do you assign importance to the rule of law, especially as it relates to the conduct of the government?
5.12.2006 3:15pm
BobN (mail):

Main Entry: bla·tant
Pronunciation: 'blA-t&nt
Function: adjective
Etymology: perhaps from Latin blatire to chatter

1 : noisy especially in a vulgar or offensive manner : CLAMOROUS

2 : completely obvious, conspicuous, or obtrusive especially in a crass or offensive manner : BRAZEN
synonym see VOCIFEROUS


- bla·tant·ly adverb
5.12.2006 3:21pm
JunkYardLawDog (mail):
Apodaca, the rule of law is important. Not having one's children burned to death or blown to pieces by criminals or terrorists is also important. There can be no rule of law and ivory towers from which the detached elites can pontificate their judgments without safety and security first.

Strained constructions of the law that fail to balance the interests/liberties harmed and the extent to which the harms take place and actually effect the daily lives of those claimed to be harmed versus the potential benefits of protecting our lives and security are irrational. These are not legal decisions they are POLITICAL decisions. Political decisions are not solved by judges (or at least should not be solved by judges) but are best solved at the polls.

There is absolutely NO LIBERTY and NO FREEDOM if you are DEAD. I'd rather see the government with phone number databases tracking down terrorists than worry about this completely insignificant invasion of my *theoretical* liberty and end up being forced to observe Sharia Law lest I be killed. I'm just silly that way I guess.

Says the "Dog"
5.12.2006 3:33pm
Anonymous Reader:
Everyone,

Please let's keep the partisian rhetoric to a minimum. Let's stick to the simple facts as we think we know them (since we don't know ALL the facts).

One reason I see for not going directly after the suspected terrorist is because of how these cells operate. We all know, or I would think we should all know, that these groups are not some type of easily recognizable heirarchy of organization, such as AT&T or Microsoft or something. They are pseudo-organized and operate in such a way that no one knows all the "leaders" at any level. They just know their contact and that's it. By allowing these contacts to "exist" under surveillance, the govt is able to trace the phone tree. But you can't have a tree without all the data.

So it seems that the data is kept for analysis. You never know what will be valuable intelligence. It's kind of like a needle in a haystack. But once you know exactly where to start, you can unravel the puzzle and connect the dots. But if you cut off that "dot" you never learn the full puzzle and you end up starting back at square one. Which is why it's important for police, FBI, CIA, NSA, etc to share intelligence information. It might seem inconsequential to the police that so and so's buying fertilizer, but to the FBI he's a terrorist suspect or whatever.

Medis,

You're absolutely right. I wish the media would do a better job enforcing that point of view, but it seems that they push partisianship (if it bleeds it leads, etc). But the people ultimately need to stop and make the govt, the media, everyone accountable.

Rational Actor,

You're wrong. There are procedures in place to deal with problems with secret information. If that person who knows this top secret information is afraid to put their career on the line to expose abuse because they may be labeled as a "treasonous traitor" then we've got bigger problems than the NSA collecting intelligence information. If that person utilized the appropriate channels and was told to shut up or ignored or whatever, and subsequently released that information to the public, that person would be praised as a hero and untouchable by anyone who would try to silence them. That person would be a champion of the people by "speaking truth to power" while still maintaining the moral high ground by acting within the established laws and regulations.

Our elected officials would prefer to maintain their power and prestige instead of following their oath of office.

Anonymous Reader
5.12.2006 3:35pm
OrinKerr:
Tom Holsinger,

You're right -- I do indeed have an agenda.

It's a strong agenda, and it's an agenda I have had ever since about 1999. My agenda, to put it simply: I want to bring the joys of the Electronic Communications Privacy Act to The People. I love these statutes, and I love talking about them, writing about them, testifying about them, and I love it when everyone else is talking about them, too. So yup, that's my agenda: I want us all to learn about ECPA.

Best,
Orin Kerr
5.12.2006 3:36pm
I.I (www):
Doesn't Article II trump all this?

Article II doesn't trump anything. The constitution gives the executive no license to ignore law; the military is subordinate to civilian authority, not independent therefrom.

"The President shall be commander in chief of the Army and Navy of the United States" != "The President shall be military dictator of the United States". The difference between a constitutional republic and a dictatorship is the rule of law; if the law is not binding on the president then we do not have a republic.
5.12.2006 3:37pm
TallDave (mail) (www):
Robn,

Well, I'm glad you found the dictionary and the correct spelling, but the elucidation only makes your position less tenable.

Wiretapping your political opponents is much more brazenly, blatantly, completely obviously partisan than anything Bush has done.
5.12.2006 3:37pm
TallDave (mail) (www):
Article II doesn't trump anything. The constitution gives the executive no license to ignore law;

Separate branches of government. The Congress cannot limit the President's Constitutional powers to fight foreign threats via legislation.

That's why Clinton didn't need a warrant for Aldrich Ames.
5.12.2006 3:39pm
Tom Holsinger (mail):
We're talking about a pen register. There have been umpteen threads and posts about pen registers on this board. Do an advanced Google search for the complete phrase, "pen register" and the single word, "Volokh".

The Supreme Court held in Smith v. Maryland, 442 U.S. 735 (1979) that pen registers are not unreasonable searches. That case too was discussed on this board many times.

The pen register subject has been beaten to death here. So Professor Kerr is "shocked, Shocked!" to discover that the federal government uses pen registers? Gimme a break. He's losing his objectivity or worse. I'm looking forward to his discovery of the income tax.
5.12.2006 3:44pm
Rational Actor (mail):
Orin - in furtherance of your agenda, can you suggest any abbreviated readings for the uninitiated?
5.12.2006 3:45pm
Steve:
No, Clinton didn't need a warrant for Aldrich Ames because there was no statute requiring a warrant. FISA didn't apply to physical searches back then.

I am utterly amazed at constitutional theories which hold that the President may do literally anything if he claims the ultimate purpose is to stop foreign threats. Why did Truman want to seize those steel mills, anyway? Remind me.

If a statute prohbits a phone company from turning over customer records to the government without a warrant, that statute is unconstitutional under Article II if the Executive says national security is at issue? Do you truly see no negative implications to this theory whatsoever?
5.12.2006 3:46pm
TallDave (mail) (www):
Sorry, I meant ECHELON, not Ames.
5.12.2006 3:47pm
TallDave (mail) (www):
If a statute prohbits a phone company from turning over customer records to the government without a warrant, that statute is unconstitutional under Article II if the Executive says national security is at issue? Do you truly see no negative implications to this theory whatsoever?

I see lots of negative implications. For al Qaeda.
5.12.2006 3:49pm
Apodaca:
Tom Holsinger says:
So Professor Kerr is "shocked, Shocked!" to discover that the federal government uses pen registers? Gimme a break. He's losing his objectivity or worse.
Of course, Orin says no such thing. Why would he? He has written extensively on the government's use of pen register authority, both in a manual for use by prosecutors and in his law review articles subsequent to his service as a federal proecutor.

No, Orin expresses no such naive shock. The fact that you can muster only this pathetically unsupported accusation speaks volumes about your own agenda, Tom.
5.12.2006 3:52pm
TallDave (mail) (www):
I am utterly amazed at constitutional theories which hold that the President may do literally anything if he claims the ultimate purpose is to stop foreign threats.

Aha! I see the "unlimited power" strawman has finally made its appearance. Yes, that would be amazing, but no one is advancing that theory.

The steel mill seizure was disallowed on the grounds it was a domestic issue. I suppose one could argue that applies here, but it's a pretty weak argument since as JYLD points out it's hard to find any harm being done, and its a reasonable way to track al Qaeda pursuant to killing them with our military.
5.12.2006 3:53pm
LakeHouston:
As to the question of whether we have phone numbers of known terrorists, it is not necessary that these terrorists are actually within our borders. We have in fact recovered al queda cell phones both in Afghanistan and in Iraq. Most of these phones had saved phone numbers for easy dialing. United States phone numbers. That was the starting point of the first and second NSA phone actions. The government is not simply on a fishing expedition to find "enemies of the state". They are trying to prevent the next 9-11. I am just as nervous as the next guy about too much power being concentrated in the federal government. And congressional oversight being the political animal that it is, I am not too happy about the ability of Congress to actually offer practical oversight. In my opinion, the federal government is already a bloated beast and needs to be trimmed back horribly. That being said, I also believe, that political expediency will give some impetus to either political party to "do the right thing" when it comes to national defense. I realize there are "bad actors" in any administration, but most politicians are self serving enough to try to keep America safe simply because they don't want the next 9-11 to happen on their watch. "Wouldn't be prudent".

As far as needing a court order to get call records, why would that be necessary when I can go on the internet and buy YOUR call records for about $89.00 and yes I can ask for YOUR records by name. The NSA is not even getting names and addresses in this data mining operation. That comes only if a disturbing pattern warrants it. If Verizon can SELL your phone records, why can't they share them with the Feds trying to protect the country from attack?
5.12.2006 3:54pm
submandave (mail) (www):
BobN: If the administrations of WWII had been so blatently and aggressively partisan as this one is, we'd all be sprechening Deutch. A united country can more easily win a war.

And explain again how Al Gore's "He deceived us!" and Ted Kenedy's "Iraq has become Vietnam" and John Kerry's "American troops shouldn't be terrorizing Iraqis in the middle of the night" and John Murtha's "We've lost! Our soldiers are beaten and despirited" and Dick Durbin's "American soldiers are like Nazis, Khmer Rouge and Soviets" and Howard Dean's "The idea that Bush knew about 9/11 beforehand is an interresting theory" and countless other similar comments from Democrats and their proxies in the press are not "blatently and aggressively partisan" and tell me exactly how they help to unify the country in this war?

"[N]oisy especially in a vulgar or offensive manner certainly seems to describe the above. I dare say it would not be much challenge to counter every specific "blatently and aggressively partisan" comment or act by the Administration you can cite with two or more from the opposition or press. I recommend you put those stones down lest your whole house shatter around your feet.
5.12.2006 4:00pm
Anderson (mail) (www):
We're talking about a pen register.

Mr. Holsinger, get informed or get ...

Prof. Kerr has *specifically* distinguished pen-register law from the present facts. For that matter, even if the NSA's latest hijinks were held to fall under the pen-register precedents, there is no reason to suppose that the single case of Smith v. Maryland would be held to justify the sweeping array of NSA surveillance now at issue. See this link for that argument.

It's as if you were angry that free citizens were even discussing this subject.
5.12.2006 4:00pm
JunkYardLawDog (mail):
LakeHouston,

Maybe Bush should just pay AT&T $1.00 for the phone records. (smile).

Says the "Dog"
5.12.2006 4:05pm
Apodaca:
Lake Houston says:
If Verizon can SELL your phone records
Who says they can do so legally?
5.12.2006 4:11pm
TallDave (mail) (www):
I feel I should add, in Orin Kerr's defense, that I have a lot of sympathy for his position because this program does make me very queasy (I support the program only because the thought of being blown up by al Qaeda makes me even queasier.)

I think it is very very important that this not be a permanent program, because inevitably someday it will be abused (i.e., used for domestic purposes instead of directed at foreign threats). At some point we need to declare victory in this war and move on.
5.12.2006 4:15pm
LakeHouston:
Here is the link for the "you can buy your neighbor's phone records" comment: Click Here.
5.12.2006 4:31pm
Apodaca:
TallDave and others make an excellent point that the President simply cannot be expected to follow the law as written by Congress. More to the point, trying to fix badly written laws would involve ridiculous, burdensome, time-consuming bureaucratic nonsense such as identifying the defects to Congress and enlisting its support for suitable statutory amendments.

Whatever idiot wrote up the Rube Goldberg instruction manual for doing this, which practically reduces the President to begging, ought to be taken out and shot.
5.12.2006 4:34pm
BobN (mail):
Blatent wiretapping would involve attaching four-foot tall wiretaps painted with the Yellow/Black striped "warning" pattern and stamped "This is a wiretap" to your target's phone.
5.12.2006 4:35pm
Harry Eagar (mail):
Apodaca says, 'The suggestion that we will discover heretofore unknown terrorist operatives by data-mining an enormous system of domestic calling records for general patterns typical of terrorist activity is just too ludicrous for words.'

First, who says that is what is happening?

Second, even if it is, there are other approaches to traffic analysis that the same data can be used for, and they are not ludicrous at all.

The ability of TA to provide useful information about the intentions of bad guys has been proven over and over.

Notably, it works nearly as well even if you NEVER get any access to the contents of the messages as if you do.
5.12.2006 4:37pm
Apodaca:
Hans Gruber: Your question has already been answered by Ohm and Steve. Northerner is confused.
5.12.2006 4:39pm
LakeHouston:
If american phone numbers we retrieved from captured al queda phones in afghanistan show up in this data mining operation and the data also shows them calling each other (other numbers we found in the afghani phone) with some frequency, I would think this alone could raise suspicions. Why would an al queda operative have american phone numbers in his speed dial directory? So he could call walgreens and get his hay fever medication forwarded to Basra?
5.12.2006 4:41pm
LakeHouston:
Here is another link about phone records for sale. Click Here.
5.12.2006 4:45pm
Apodaca:
Harry Eagar asks:
who says that is what is happening?
A grand total of 32.6 seconds of Googling produces this:
The only way to efficiently find these needles in very large haystacks is to create a relational database that will sniff out those relationships. In order to ensure that the effort succeeds, the database must therefore contain as many of the records of phone calls as possible -- all of them, under ideal circumstances.

Only such a database could make that kind of dot-connecting possible in any meaningful fashion. The kinds of patterns and connections that would reveal the potential for terrorist activity will be so small as to be impossible to discover through normal research.
5.12.2006 4:46pm
Rational Actor (mail):
LakeHouston -
If american phone numbers are found in al qaeda cell phones it should be relatively simple for the gov't to get a warrant to investigate the owners of those phones, which would allow them to access records of who had called them and been called. They could presumably quite easily work their way outwards, obtaining warrants when necessary to expand their search.
That is sort of the opposite of what is reportedly being done, which is starting with a database of all calls, and then trying to find suspicious patterns therein.
There may be a valid use for this second type of analysis, but it is totally unnecessary if you already have suspect phone numbers.
5.12.2006 4:49pm
Apodaca:
LakeHouston grandly invokes
american phone numbers we retrieved from captured al queda phones in afghanistan
Naturally, once we have specific American phone numbers, we couldn't possibly make a specific request to the phone company for the past calling for those numbers (and, at the same time, put those specific lines under focused future surveillance). No, the only the efficient way to investigate those numbers is to get everybody's records -- in case, like, we mistype the numbers or something.
5.12.2006 4:51pm
Anderson (mail) (www):
I feel I should add, in Orin Kerr's defense, that I have a lot of sympathy for his position because this program does make me very queasy.

We should remember that, AFAIK, Prof. Kerr hasn't said a word about whether the NSA database is a good idea. He may think it's a splendid anti-terror tool. The issue is simply, have the NSA and the telcoms acted legally?
5.12.2006 4:54pm
Michael B (mail):
"I don't think I am alone in being concerned about both the IRS and the NSA--and, for that matter, expansive and intrusive government in general. But more to the point, I'm not sure how this comparison helps you. In short, I think you are making a good case for people being more concerned about the IRS, not a good case for people being less concerned about the NSA."

Please. There is no, and never has been any, sturm and drang concerning the IRS's intrusiveness, certainly not from the left, so most this reflects motive, decided political and partisan interests, and BDS, Bush Derangement Syndrome.

Another example. The current story, the one everyone is now so concerned about, came out more than four (4) months ago in the NYT on December 24, 2005.

But that was before they had the Hayden nomination to politicize.
5.12.2006 5:03pm
Tom Holsinger (mail):
Anderson,

I just checked. You're right. It wasn't a pen register. The feds were provided with compilations of information in billing records, with the billing records prepared in the ordinary course of business. I.e., neither the compilations nor the billing records are pen registers, and so are not subject to 18 U.S.C. 3121, or to FISA.

I repeat, there are Inspector Renault imitations in progress. "Your winnings, msieu." "What? I have to pay income tax on my winnings? The income tax is unconstitutional!"
5.12.2006 5:09pm
OrinKerr:
To follow up on Anderson:

To be clear, my post is really just covering legal issues. I don't know enough about the facts of the NSA database to say whether it is a good idea. It might be: I think this sort of pattern analsyis can be very powerful when done well. But I'm not an expert in it, so I don't really know: When I have been asked to comment on the policy question by reporters, I have declined to comment. Maybe I'm hopelessly old-fashioned, but I see the two (law and policy) as distinct. My post is only about the former.

Also, the primarily legal issue here is legal liabillity for the telephone companies, not for the government. More on that soon, I hope.
5.12.2006 5:10pm
Tom Holsinger (mail):
Michael B.,

Got it in one.
5.12.2006 5:10pm
Anderson (mail) (www):
EXCLUSIVE MUST CREDIT DRUDGE!!!!

Or, rather, WorldTribune.com. If the story &source can be believed, then maybe those pen-register laws *are* going to need examining:
Mark Klein [former AT&T technician], who spent more than 22 years with AT&T in New York and California, said in January 2003 that NSA set up a room adjacent to an office in the AT&T central office on Folsom Street in San Francisco to route and screen public phone calls.

Additionally, in October 2003, Klein said he learned that the secret NSA room was used to tap into AT&T’s WorldNet Internet room, which included large routers, modems and other equipment.

Fiber optic cables from the NSA room tapped into the WorldNet Internet equipment by splitting off a portion of the light signal.

The circuits broken into were called Peering Links that connected WorldNet with other networks throughout the country and world.

Klein said the NSA equipment included a Narus STA 6400, known as a semantic traffic analyzer, used to sift through large amounts of data in the search for pre-programmed targets.

The U.S. government has filed a States Secret Privilege notice to prevent further disclosure of the wiretap details, according to a former intelligence official.
Assuming for the sake of discussion the accuracy of the report (World Trib is not owned by the most neutral people), does this suggest real-time taps rather than merely obtaining records?
5.12.2006 5:14pm
Apodaca:
Michael B claims,
The current story, the one everyone is now so concerned about, came out more than four (4) months ago in the NYT on December 24, 2005.
Sadly, no. The story that broke last December was about calls between the US and overseas. As the President himself said at the time,
In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations....

As the 9/11 Commission pointed out, it was clear that terrorists inside the United States were communicating with terrorists abroad before the September the 11th attacks, and the commission criticized our nation's inability to uncover links between terrorists here at home and terrorists abroad. Two of the terrorist hijackers who flew a jet into the Pentagon, Nawaf al Hamzi and Khalid al Mihdhar, communicated while they were in the United States to other members of al Qaeda who were overseas. But we didn't know they were here, until it was too late.

The authorization I gave the National Security Agency after September the 11th helped address that problem....
As the USA Today story put it earlier this week,
In defending the previously disclosed program, Bush insisted that the NSA was focused exclusively on international calls. "In other words," Bush explained, "one end of the communication must be outside the United States."

As a result, domestic call records — those of calls that originate and terminate within U.S. borders — were believed to be private.

Sources, however, say that is not the case. With access to records of billions of domestic calls, the NSA has gained a secret window into the communications habits of millions of Americans.
5.12.2006 5:19pm
Apodaca:
Tom Holsinger proudly announces,
neither the compilations nor the billing records are pen registers, and so are not subject to 18 U.S.C. 3121, or to FISA.
Tom, you neglected to mention to the records are also not subject to ERISA, COBRA, or the Clean Water Act.

Of course, Orin's analysis above involves 18 USC 2702 (and others have remarked on the applicability of 47 USC 222). You will be addressing these statutes as well, yes?
5.12.2006 5:24pm
I.I (www):
The question of whether or not datamining the call records is useful is not at issue here. The question is whether the decision to proceed was made in an appropriate manner.

When you boil away the abstractions, the decision about what the government can or cannot do rests with the people. If the people, or their duly constituted representational government, decide that datamining the universe of phone call records is a good idea, laws can be passed to legitimate that activity.

On the other hand, if the government is disregarding the processes put in place to make sure that governmental policy is informed by the will of the people- processes like the FISA court- then we have a legitimate beef regardless of whether the specific action taken was beneficial.
5.12.2006 5:27pm
Anderson (mail) (www):
Tom, you neglected to mention to the records are also not subject to ERISA, COBRA, or the Clean Water Act.

Funny, the lawyers in my neck of the woods seem to think that *everything* is subject to ERISA, so I figure the current scandal is no exception.
5.12.2006 5:50pm
Anderson (mail) (www):
The lawyer of Qwest's then-CEO speaks up:
In a statement released this morning, the lawyer said that the former chief executive, Joseph N. Nacchio, made the decision after asking whether "a warrant or other legal process had been secured in support of that request."

Mr. Nacchio learned that no warrant had been granted and that there was a "disinclination on the part of the authorities to use any legal process," said the lawyer, Herbert J. Stern. As a result, the statement said, Mr. Nacchio concluded that "the requests violated the privacy requirements of the Telecommunications Act."
More grist.
5.12.2006 6:03pm
ThirdCircuitLawyer (mail):
Is Tom Holsinger as stupid as he appears to be? It's hilarious to watch him flounder about, but I can't tell whether he is a) really stupid or b) arguing in bad faith. Or (c), both?
5.12.2006 6:07pm
Anderson (mail) (www):
Tsk, 3dCir.
5.12.2006 6:18pm
Michael B (mail):
Apodaca,

You may be right, I'm not sure. Your White House link pertains to the previous NSA program which has received attention for an already lengthy period of time. On the other hand I should have noted my information about the Dec. 24, 2005 NYT story is second hand (didn't read it in the NYT myself, was relying on another, previously read source) and I cannot now trace that link. So for now, I'll back off on that claim, I'm not a Times Select subscriber, though I believe it's the Lichtblau/Risen article on that date (the first fifty words of which would confirm your statement, I don't have access to the remainder).

And in general, my prior comments don't pertain to a sound and reasonable discussion of this topic (e.g., OK's legal focus), they pertain to the ridiculously aggrieved and arch language, the faux righteousness, on display, even from sources such as Leahy (whose language was comical, even self-satirizing) and others.

Or, beyond the politicos and focusing on the MSM. Beyond the fact this story was first published on Dec. 24, 05, in the NYT, the MSM has positively avoided other stories. E.g., the recent McCaffrey Report on Iraq, the recently intercepted al Qaeda letter wherein they (AQ) allow that each year is getting worse for them, in Iraq, excepting on the front they're particularly focusing on: the MSM/media front - where they continue to win victories.

Too, the IRS comparison, in terms of privacy and civil liberties questions, potential for abuse, a history of actual abuses, viable alternatives, etc. remains an entirely condign comparison - and contrast. Ergo, this is not simply about civil liberties, it's about BDS and politicizing the Hayden nomination and partisan sniping in general.

Other aspects could be noted as well. The fact is, the dots can't be connected unless they're first collected and collated. Cf. the recent BBC/British news item about the fact the Brits had the phone records of some of the 7/7 bombers but did not put them to sufficient use.
5.12.2006 6:21pm
Michael B (mail):
Should have edited the second sentence, 3rd graph, to remove the Dec. 24 NYT reference.
5.12.2006 6:24pm
The Original TS (mail):
Also, the primarily legal issue here is legal liabillity for the telephone companies, not for the government. More on that soon, I hope.

Heh. At this very moment, I'm struggling with a strong impulse to trot down to the courthouse and file an action to collect my $1000. I'm pretty sure my neighbors would like $1000, too, so, while I'm there, I might as well file on their behalf since sec. 2707 also awards attorney's fees. Does anyone imagine there aren't hundreds, if not thousands, of attorneys across the country thinking exactly the same thoughts? Hopefully, Orin will reveal a slam-dunk defense for the telecoms. Hopefully, but I doubt it.

If the telecoms were smart, they made the USG indeminify them against any civil claims arising out of this program. If so, there are potentially tens of billions of dollars (not counting attorney's fees) waiting to be collected. I look forward to Orin's analysis with considerable interest.
5.12.2006 6:31pm
Walt Quist (mail):
What NSA is trying to do is see who the terrorists are calling after they get a call from OBL or one of his cronies. After all the leaks this program has lost most of its value and the people who leaked this should get no mercy from the courts. If you would be discovered as a terrorist, would you use your phone to get calls from OBL? You would use a pay phone (different each time and call him) or get a prepaid cell phone.
5.12.2006 6:31pm
Anderson (mail) (www):
If you would be discovered as a terrorist, would you use your phone to get calls from OBL? You would use a pay phone (different each time and call him) or get a prepaid cell phone.

Walt, I would submit to you that the terrorists are at *least* as smart as you and I. Ever think of that? So maybe they were doing all this *already*?

Hell, the one time in my life I did anything nefarious (romantically, not criminally), I made darn sure I used phone cards for every call I didn't want to have to explain when it showed up on the phone bill.
5.12.2006 6:36pm
Walt Quist (mail):
Anderson said:

"Walt, I would submit to you that the terrorists are at *least* as smart as you and I. Ever think of that? So maybe they were doing all this *already*?"

I am sure they are doing this already. Do you think that OBL is still calling his mother on his cell phone after an earlier leak of that information? That is why communications security is so highly classified and why these leaks have made the program of little value. These leaks are eliminating our abilty to "connect the dots".
5.12.2006 6:44pm
Apodaca:
Walt, how exactly does this program solve the problem of terrorists using pay phones or prepaid cell phones?

Let's call our in-country Al Qaeda operative Ahmed. Now, say Ahmed gets a call from OBL, and we learn about this call (from monitoring OBL's line, or general NSA monitoring of international calls, or even because Ahmed is already under suspicion and his line is tapped). What's the rational way to figure out who else is calling Ahmed, or whom he is calling: Gathering data on billions of domestic calls in the hope that some pay/prepaid phone pattern will jump out from a mass of data with no common connection to Ahmed? Or putting Ahmed under visual and/or electronic surveillance to see what he does and where he goes?
5.12.2006 6:48pm
Mary Katherine Day-Petrano (mail):
Orin,

I am wondering why Sprint is not being included with these other telephone companies. My husband and I have evidence we have been subject to this domestic surveillance due to my unpopular disabilty civil rights cases, and my Sprint cell phone was kept on for more than 5 months after we told Sprint to turn off service when we were not paying the bill, and during a time when I was receiving death threat emails over my Sprint phone. Someone should also be looking into whether Sprint turned over its customers calls for surveillance.

On another note, I have seen these fine print "consent" assertions many times before, and while I cannot speak for non-disabled people, I can tell you that the Americans With Disabilities Act requires as part of the reasonable accommdoations auxiliary aids and servics mandate that large print formats be provided to people with certain types of diabilities. My husband (Esq.) and I have made numerous challenges to the legality and validity of fine print contracts, agreements, consent to arbitration, credit reporting agencies, etc., for lacking consent by reason of failure to provide these terms in large print alternative format. Surely a disabled person who cannot read or understand the terms due to failure to provide them in large print alternative format cannot "consent."

Who are DOJ trying to fool? Their own ADA civil rights division routinely achieves settlement agreements under the disability laws requiring large print formats.

A very interesting post, and I always read your extremely informative threads both on Volokh and OrinKerr.
5.12.2006 6:54pm
Bruce Hayden (mail) (www):
First, as to the steel case, and Jackson's concurrance, and the President's Article II powers. I argued in the previous NSA case that Youngstown was domestic, and the other NSA program was international, and that moved it significantly into the Article II realm, and so, seriously doubted if the Jackson category III would be relevant. (Obviously, a lot here on the other side were hanging their hats on it).

But this program looks a lot more domestic, and because of that, the President's Article II powers a lot weaker. Maybe not as weak as Truman's when he tried to federalize the steel mills, but still, a lot more so than the other program.

Now to the pragmatics. It was questioned above why, when a telephone number becomes of interest, the NSA doesn't just go get warrants then. The answer is that that takes time, and a big part of the utility of this program appears to be tying into the previous program, and, thus, time is of the essence here.

As most know here, when our troops (or most likely Afgani, Iraqi, or British troops) raid a terrorist location, they often find cell phones. The numbers in the call history and phonebooks are immediately fed to the NSA. The NSA then monitors triggers on calls related to these numbers, and may even suggest future raiding targets as a result. The troops often then run with information they have acquired at the location, and maybe from the NSA, and hit another site, and another, until all of a sudden, the leads dry up. This often means that the word has gotten out that the terrorists caught have been compromised. So, often, they have hours to do this.

So, let us assume that they find some relevant phone numbers on a cell phone in Iraq. Say, of someone here in the U.S. The NSA/CIA/FBI could, of course, get a warrant, and use it to get the phone records. But that can't be done in minutes, or even hours, or, most likely days.

I outlined a potential scenerio in a previous thread here where patterns derived from the telephone record database could be used to determine which calls to tap under the internationl communications surveilance program heavily discussed here months ago.

But the important this to note is that getting the records after the fact is next to useless. By the time that the feds could get warrants, the NSA could then get the information, and analyze it, it would often be stale. Those ultimately implicated might well have gone underground in response to acquintances being compromised.

In short, the NSA needs the call records in advance, all nicely indexed, because it needs immediate answers when events are breaking fast, and getting a warrant would not make this information available in anywhere near real time.

Let me add another couple of problems with warrants. Let's assume for simplicity sake that terrorist A1 is caught in Iraq, and has the numbers of B1 and B2 here in the U.S. on his phone. So, the feds go out and get warrants for those two people. Then, they find that B1 called C1, C2, and C3, while B2 called C4, C5, and C6. Back to the judge for more warrants for them. It is now necessary to present these warrants to the applicable phone companies around the country, which will have to have their legal departments review them before they can be answered. Then, C1 and C5 turn out to have called D1. Bingo. A connection. Of course, that requires another warrant, etc.

Of course, this ignores that B1 probably has talked to a hundred people over the phone in the last year, as has B2, C1, C2, etc. All of sudden, that is a lot of warrants. Potentially thousands, all triggered by one siezed cell phone.

Which gets to the next problem - probable cause or whatever level required for the warrants. Can the NSA, etc. say that they had probable cause for the warrants for the records for C1, C2, C3? How about D1, D2, etc. Not likely.
5.12.2006 7:06pm
Apodaca:
After much sound and fury, Bruce Hayden poses the question,
Can the NSA, etc. say that they had probable cause for the warrants for the records for C1, C2, C3?
This is truly the wispiest of straw men. They don't need a warrant -- and thus don't need probable cause -- to get calling records (either from the past or going forward).
5.12.2006 7:10pm
Guest ruddiger (mail):
Does the Communications Assistance for Law Enforcement Act of 1994 have any relevance here?

And, concerning the 24 Dec NYTimes, the key part reads...

"As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said....

"What has not been publicly acknowledged is that N.S.A. technicians, besides actually eavesdropping on specific conversations, have combed through large volumes of phone and Internet traffic in search of patterns that might point to terrorism suspects. Some officials describe the program as a large data-mining operation.

"The current and former government officials who discussed the program were granted anonymity because it remains classified...."
5.12.2006 7:29pm
jfd (mail):
First, may I say that Prof. Kerr is the sort of person who makes me confident there is still hope for our democracy. Straight shooting is what we need and it's what he does.

Unfortunately, I'm more of a cranky blowhard with an occasional knack for gallows humor, much more so than legal reason, hence the following...

I'm struck by how quickly fear of the IRS took a chunk of the discussion. And rightly so, no? Few people, left or right, trust the IRS. Few people, however, have thought of the IRS as a political Achilles heel in the "War on Terror."

Is not our biggest concern that this issue will become a huge, self-destructive shoot-self-in-head-on-courtTV political circus? Only concerted, and controversial, political action by Congress and the President could even attempt to put a lid on that.

However improperly (may I cynically and despairingly suggest), political heat may well trump the law, however it reads. Which way the public is polling is likely how this mess will play out. Legal uncertainty creates opportunity for an exceedingly volatile political wedge issue.

Should anyone honestly trust a Clinton, for example, to maintain an impassible wall between the NSA and the IRS? Experience indicates not. I'd hope I could trust President Bush, but... allegedly tipping off the Mexicans to American border patrols, where does that fit: right, left or bankrupt?

So, the ABC polls may be, for the moment, 'going well' in my brutish, knee-jerk, conservatoid view, but these polls were taken without the preternatural fear of the IRS having reared its disgraceful countenance. As the polls go, so go our notably spineless 'leaders', and so go chances of legally/politically withstanding a crippling, fifth column attack against American intelligence needs, an attack by means of abuse of our own courts.

If it's not obvious, I'm of the opinion the NSA intelligence is crucial to our physical, moral, cultural, and political survival. Possibly useful proposals for dealing with the fearsome downsides are arising from left, right and center (Remember 'center'--there really is one, isn't there?)

HOWEVER, (Don't you just LOVE all caps?) this is, like, a 'real war', y'know? No instant reboot, etc.

SO, how might our defeat scenario play out?

Well, most Americans, unlike a few commenters here, are grudgingly alert to a likelihood that we are now in a chronic state of war (or chronic, war-like emergency, if you will) as much as we all wish it would just go away, putting the political kibosh on 'preserve our way of life' arguments against War on Terror measures.

OK, here's the trick. The left (a substantial part of which may be willfully, eagerly, aggressively *malign* —-not too sincere about preserving our liberties) ((present readers excepted, 'natch)) has an excellent shot at sabotaging the war effort with a MAGNIFICENT TACTICAL INVERSION: they now point straight at the newly-discovered *chronic* crisis, a 'chronic emergency' if you will, but one of imminent abuse of our persons, kith and kin by whom? ...the notably malignant IRS, that's who!

Who's to argue with that? Who doesn't suspect the IRS is at war with them, their kith, and their kind. TRUST THE IRS? Really?

(i *love* all caps, they're so LOUD!)

It might then become grimly amusing to watch taxpayers' revolt groups splitting over support or rejection of this de novo anti-IRS left in action.

OBL must be beside himself with glee at this very moment, watching CNN with his buds, ululating every time an anti-NSA article rises to page one of DIGG.com, sipping sweet peppermint tea (no Schnapps). American ingenuity could truly snatch defeat out of the jaws of victory.

---> snark alert --->
But who knows, if fear of the IRS is enough to bring us to ruin under Islamist hedgemony, there's still a bright side: we will finally get real tax reform!

After all, 'jizyah' (submission taxes paid to 'Allah' to buy off attacks) would not merely reform tax collection, they could radically restructure what's left of our entire financial world, no?
---> end snark alert --->

Too much.
5.12.2006 7:51pm
anonymouslawyer:
On a side note, I think Professor Kerr may owe Judge Posner an apology. Professor Kerr states that, if you look up United States v. Daniels, 902 F.2d 1238 (7th Cir. 1990), "note that Posner incorrectly states later in the opinion that the Second Circuit accepted such a weak notice argument. If you read the Second Circuit case, it is clear that the CA2 did no such thing and that Posner was just being sloppy." Intrigued by the idea that Judge Posner had been "sloppy," I read the Second Circuit decision referenced in Daniels, and found that it says precisely what Judge Posner says it does.

Beginning with Daniels, Judge Posner writes for the Seventh Circuit that:

The government does not advance its cause with us by arguing that Daniels' consent can be inferred from a provision in the Code of Federal Regulations which says that inmates' phone calls may be monitored. That is the kind of argument that makes lawyers figures of fun to the lay community, and although a respected sister court has accepted it, United States v. Amen, 831 F.2d 373, 379 (2d Cir. 1987), we place no weight on it.

And, indeed, the Second Circuit in Amen did just what Judge Posner said it did in Daniels. In Amen, the Second Circuit stated that:

Paradiso and Abbamonte impliedly consented to the interception of their telephone calls by use of the prison telephones. They were on notice of the prison's interception policy from at least four sources. The Code of Federal Regulations provides public notice of the possibility of monitoring. In addition, inmates receive actual notice. * * *

Then, after detailing how the inmates had received actual notice, the Second Circuit concluded: "Thus, the district court properly found that the two defendants had notice of the interception system and that their use of the telephones therefore constituted implied consent to the monitoring."

831 F.2d at 379 (internal footnote omitted).

In other words, the Second Circuit did find that inmates impliedly consented to the interception of their telephone calls based, in part, on the fact that were on put on notice of such interceptions by virtue of the CFR. To be sure, the court noted that the inmates also were on actual notice as well, but nowhere did the court suggest that the CFR notice could not stand on its own.

Indeed, to cinch matters, in United States v. Workman, 80 F.3d 688, 693 (2d Cir. 1996), the Second Circuit read Amen precisely the way that Judge Posner did, stating:

In Amen, we held that inmates impliedly consent to have their telephone conversations monitored where they have received notice of the surveillance and nevertheless use the prison telephones. 831 F.2d at 378-79. The notice in that case consisted of federal prison regulations clearly indicating that inmate telephone calls were subject to monitoring, an orientation lecture in which the monitoring and taping system was discussed, an informational handbook received by every inmate describing the system, and signs near the telephones notifying inmates of the monitoring. Id.

Given this, I'd be happy to hear from Professor Kerr why he thinks Judge Posner was "sloppy" in his reading of Amen.
5.12.2006 7:53pm
Apodaca:
Anonymouslawyer, Orin is right. Posner's claim is that the 2d Circuit accepted the gossamer argument that publication in the CFR is adequate notice; in fact, Amen does not hold that such notice standing alone is sufficient. You say that "nowhere did the court suggest that the CFR notice could not stand on its own," but that's not the point. Posner asserts -- wrongly -- that the 2d Circuit did say that it could stand on its own.
5.12.2006 8:11pm
Harry Eagar (mail):
Anderson, I submit that terrorists are even smarter than some of us. The CIA, for example. Remember their stumblebum performance while kidnapping in Italy?

On the other hand, you may be underestimating the natural tendency to do things the easy way, and the practical difficulty of maintaining a worldwide network of terrorists in which you carry 10 cell phones in order to obfuscate TA of your network. How do you remember which phone to use with which thug?

TA thrives on communications insecurity, mistakes and laziness.

Apodaca, you appear to underestimate the power of TA. And you are wrong to think that the starting point is a tabula rasa on which some NSA programmer imposes an algorithm.

TA starts with entrants (a phone number found in the notebook of an arrested person, for example) and multiplies the value of that by analysis of -- in this case -- highly abstract data.

Whether it's legal or not, I'll leave to Professor Kerr.

That it could be very effective is unquestionable.
5.12.2006 8:17pm
anonymouslawyer:
Apodaca, I disagree. Judge Posner stated that the court in Amen accepted that consent can be inferred from publication in the CFR, and this indeed was one of the four grounds upon which the Second Circuit found that there was consent. By saying that they were on notice "by at least four sources," it may be ambiguous, to be sure, whether the four sources could stand independently or needed to be present in combination. Even accepting this, however, I don't see how Professor Kerr can say that the Second Circuit "did no such thing" and that Judge Posner was being sloppy. At the very least, a respectable argument can be made either way, which hardly justifies the statement that Judge Posner was being sloppy.
5.12.2006 8:18pm
Michael B (mail):
"I'm struck by how quickly fear of the IRS took a chunk of the discussion."

Hmmmm, to be clear, less "fear" than a simple comparison/contrast to highlight how so much of the current discussion has been hyped by Leahy, CNN and others.
5.12.2006 8:32pm
Michael B (mail):
Concerning the NYT, Dec. 24, 2005 Lichtblau and Risen article, my original source was right. Newsbusters excerpts:

But is this even news? Here's an excerpt from Lichtblau and Risen's December 24, 2005 New York Times story on the NSA, which seemed to reveal the same "stunning" "seismic" information:
As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said....
What has not been publicly acknowledged is that N.S.A. technicians, besides actually eavesdropping on specific conversations, have combed through large volumes of phone and Internet traffic in search of patterns that might point to terrorism suspects. Some officials describe the program as a large data-mining operation.
The current and former government officials who discussed the program were granted anonymity because it remains classified....
Back then, every network took note of the New York Times story and portrayed it much as they are today's USA Today story, as a huge infringement on individuals' civil liberties.

I.e., my original notes in this regard stand. h/t InstaPundit
5.12.2006 8:38pm
The Ace (mail):
Sadly, no. The story that broke last December was about calls between the US and overseas. As the President himself said at the time,

Sadly no, this isn't "news"


December 24, 2005
Spy Agency Mined Vast Data Trove, Officials Report
By ERIC LICHTBLAU and JAMES RISEN
WASHINGTON, Dec. 23 - The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials


Do try to keep up.
5.12.2006 9:01pm
The Ace (mail):
there is no reason to suppose that the single case of Smith v. Maryland would be held to justify the sweeping array of NSA surveillance now at issue. See this link for that argument.


And of course the link does and says no such thing.

It states:

The Court’s analysis that there was no reasonable expectation of privacy in the phone numbers dialed by an individual rested at least in part on the fact that the pen register obtained limited information. Whether that analysis would apply given new technological surveillance capabilities is not clear


Actually, given that the NSA isn't collecting customer information or content Smith V. Maryland certainly covers this issue.

What is funny is to watch folks on the left pretend a single instance of legal principle is ok, but multiple instances are not.

Funny I don't hear you saying that re: Roe though, huh?
5.12.2006 9:09pm
OrinKerr:
AnonymousLawyer,

My recollection is that in the Second Circuit's Amen case, the notices were plastered all over the phones, and the defendants had signed forms saying that they knew of the monitoring. The Second Circuit's opinion then had a list of the various facts of the case, and stated that the finding of consent was sufficient based on the totality of the circumstances.

As I read Daniels, Posner remarkably suggests that the Second Circuit had held that ONE of the items in the list -- the weakest of them, the appearance in the CFR -- was sufficient per se. I'm a big fan of Judge Posner's work, but his characterization of the Amen case in Daniels seems very sloppy to me.
5.12.2006 9:17pm
Apodaca:
Michael B, obviously this is old news, nothing but a repeat of the same old claims made last December. That's why the President said yesterday,
Today there are new claims about other ways we are tracking down al Qaeda to prevent attacks on America.
Sorry -- what I meant to say was that just as the President has confirmed the content-monitoring program revealed by the New York Times last year, Tony Snow simply repeated today that the USA Today story relates to this same, previously acknowledged, program:
QUESTION: Are you denying the story?

TONY SNOW: You can't -- you know, Helen, you can't confirm or deny when you're dealing with matters of classification.

QUESTION: It's not --

TONY SNOW: Because you can't -- it's one of those things where traditionally when allegations of this sort arise, sometimes in the process of answering the question you also end up revealing secrets, so it's just --

QUESTION: The President did so in December. He came flat out and acknowledged that he authorized --

TONY SNOW: Well, in this particular case, again, we're neither confirming or denying the existence of the program.
How could I have doubted you (or Newsbusters, or Instapundit)?
5.12.2006 9:22pm
The Ace (mail):
obviously this is old news, nothing but a repeat of the same old claims made last December. That's why the President said yesterday,

Why can't people like you just say "I was wrong"?

It's not that difficult.

What is funny is you actually think the President's statement confirms your point.

Wow.
5.12.2006 9:26pm
Apodaca:
OK, Ace, I'm happy to oblige: You were wrong.

HTH. HAND.
5.12.2006 9:30pm
The Ace (mail):
OK, Ace, I'm happy to oblige: You were wrong

You obviously have reading comprehension problems.

To the surprise of nobody.

Today there are new claims about

And of course in your "brain" that mean there were "no previous claims."

What you can't seem to reconcile is that what Bush said was factually correct and of course the NYT reported on this.

And since they obviously didn't what, exactly was that story about?

You know the one saying this:

The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said.

As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.
5.12.2006 9:34pm
Justice Fuller:
The Ace,

Why is Apodoca wrong? He seems right to me. Perhaps an actual argument would help those us who are not as smart as you.
5.12.2006 9:39pm
The Ace (mail):
Apodaca:
Michael B claims,
The current story, the one everyone is now so concerned about, came out more than four (4) months ago in the NYT on December 24, 2005.
Sadly, no. The story that broke last December was about calls between the US and overseas. As the President himself said at the time,


I guess it didn't occur to you that the President wasn't speaking to this:


Bush administration officials declined to comment on Friday on the technical aspects of the operation and the N.S.A.'s use of broad searches to look for clues on terrorists. Because the program is highly classified, many details of how the N.S.A. is conducting it remain unknown, and members of Congress who have pressed for a full Congressional inquiry say they are eager to learn more about the program's operational details, as well as its legality.

Officials in the government and the telecommunications industry who have knowledge of parts of the program say the N.S.A. has sought to analyze communications patterns to glean clues from details like who is calling whom, how long a phone call lasts and what time of day it is made, and the origins and destinations of phone calls and e-mail messages. Calls to and from Afghanistan, for instance, are known to have been of particular interest to the N.S.A. since the Sept. 11 attacks, the officials said.



HAND!!!!
5.12.2006 9:41pm
The Ace (mail):
Justice Fuller,

you mean other than the fact that these activities were already reported on, and Apodaca is stating otherwise?
5.12.2006 9:42pm
Justice Fuller:
The Ace,

Let's take a step back here for a second.

It seems to me that you are finding ambiguous language buried in a report from months ago, and then finding that the ambiguous language arguably is not inconsistent with the news stories that we have now. You then say that the new report, that admittedly discloses many details never before seen, and that may actually be completely different from the old report, is "old news."

Isn't that a really weak argument? All of the experts think that this is really "new" news. No one read the December report as suggesting what the press is reporting on now, and conservative sites are suggesting that the leakers of the latest report should be put in jail for disclosing what was secret last week. I guess it's just hard to square that with your view that this is old news.
5.12.2006 9:53pm
The Ace (mail):
Justice Fuller,

I provided a link up above, did you read the story?

Spy Agency Mined Vast Data Trove, Officials Report

Is the headline.

No one read the December report as suggesting what the press is reporting on now,

I suggest you read it then.

I'm not sure how you can draw that conclusion.
5.12.2006 9:57pm
The Ace (mail):
Justice Fuller,
yes the USA Today article has more words, but the NYT reported on this activity in December. And as noted in the USA Today piece Congress was briefed on it.

I'm guessing it's fair to say these details got buried by the warrantless surveillance reporting.

However, Apodaca is pretending it wasn't reported on at all.
5.12.2006 10:05pm
Apodaca:
If this were the same old story, you can be sure the White House would be quick to say so. Instead, the President says the USA Today story contains "new claims about other ways" in which the NSA is acquiring telephone call information. Not "stale old claims," nor even "renewed claims about the previously reported program."

Nope -- "new claims," "other ways"

If The Ace believes the President is lying (or merely uninformed), I'd be grateful for an explanation of his basis for that belief.
5.12.2006 10:23pm
The Ace (mail):
Apodaca, what then did the NYT report on with the headline:

Spy Agency Mined Vast Data Trove, Officials Report


Please answer the question.
5.12.2006 10:39pm
The Ace (mail):
Sadly, no. The story that broke last December was about calls between the US and overseas.

Liar.


Spy Agency Mined Vast Data Trove, Officials Report
By ERIC LICHTBLAU and JAMES RISEN
WASHINGTON, Dec. 23 - The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.

The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said.

As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.

The government's collection and analysis of phone and Internet traffic have raised questions among some law enforcement and judicial officials familiar with the program. One issue of concern to the Foreign Intelligence Surveillance Court, which has reviewed some separate warrant applications growing out of the N.S.A.'s surveillance program, is whether the court has legal authority over calls outside the United States that happen to pass through American-based telephonic "switches," according to officials familiar with the matter.

"There was a lot of discussion about the switches" in conversations with the court, a Justice Department official said, referring to the gateways through which much of the communications traffic flows. "You're talking about access to such a vast amount of communications, and the question was, How do you minimize something that's on a switch that's carrying such large volumes of traffic? The court was very, very concerned about that."

Since the disclosure last week of the N.S.A.'s domestic surveillance program, President Bush and his senior aides have stressed that his executive order allowing eavesdropping without warrants was limited to the monitoring of international phone and e-mail communications involving people with known links to Al Qaeda.

What has not been publicly acknowledged is that N.S.A. technicians, besides actually eavesdropping on specific conversations, have combed through large volumes of phone and Internet traffic in search of patterns that might point to terrorism suspects. Some officials describe the program as a large data-mining operation.

The current and former government officials who discussed the program were granted anonymity because it remains classified.

Bush administration officials declined to comment on Friday on the technical aspects of the operation and the N.S.A.'s use of broad searches to look for clues on terrorists. Because the program is highly classified, many details of how the N.S.A. is conducting it remain unknown, and members of Congress who have pressed for a full Congressional inquiry say they are eager to learn more about the program's operational details, as well as its legality.

Officials in the government and the telecommunications industry who have knowledge of parts of the program say the N.S.A. has sought to analyze communications patterns to glean clues from details like who is calling whom, how long a phone call lasts and what time of day it is made, and the origins and destinations of phone calls and e-mail messages. Calls to and from Afghanistan, for instance, are known to have been of particular interest to the N.S.A. since the Sept. 11 attacks, the officials said.

This so-called "pattern analysis" on calls within the United States would, in many circumstances, require a court warrant if the government wanted to trace who calls whom.

The use of similar data-mining operations by the Bush administration in other contexts has raised strong objections, most notably in connection with the Total Information Awareness system, developed by the Pentagon for tracking terror suspects, and the Department of Homeland Security's Capps program for screening airline passengers. Both programs were ultimately scrapped after public outcries over possible threats to privacy and civil liberties.

But the Bush administration regards the N.S.A.'s ability to trace and analyze large volumes of data as critical to its expanded mission to detect terrorist plots before they can be carried out, officials familiar with the program say. Administration officials maintain that the system set up by Congress in 1978 under the Foreign Intelligence Surveillance Act does not give them the speed and flexibility to respond fully to terrorist threats at home.

A former technology manager at a major telecommunications company said that since the Sept. 11 attacks, the leading companies in the industry have been storing information on calling patterns and giving it to the federal government to aid in tracking possible terrorists.

"All that data is mined with the cooperation of the government and shared with them, and since 9/11, there's been much more active involvement in that area," said the former manager, a telecommunications expert who did not want his name or that of his former company used because of concern about revealing trade secrets.

Such information often proves just as valuable to the government as eavesdropping on the calls themselves, the former manager said.

"If they get content, that's useful to them too, but the real plum is going to be the transaction data and the traffic analysis," he said. "Massive amounts of traffic analysis information - who is calling whom, who is in Osama Bin Laden's circle of family and friends - is used to identify lines of communication that are then given closer scrutiny."

Several officials said that after President Bush's order authorizing the N.S.A. program, senior government officials arranged with officials of some of the nation's largest telecommunications companies to gain access to switches that act as gateways at the borders between the United States' communications networks and international networks. The identities of the corporations involved could not be determined.

The switches are some of the main arteries for moving voice and some Internet traffic into and out of the United States, and, with the globalization of the telecommunications industry in recent years, many international-to-international calls are also routed through such American switches.

One outside expert on communications privacy who previously worked at the N.S.A. said that to exploit its technological capabilities, the American government had in the last few years been quietly encouraging the telecommunications industry to increase the amount of international traffic that is routed through American-based switches.

The growth of that transit traffic had become a major issue for the intelligence community, officials say, because it had not been fully addressed by 1970's-era laws and regulations governing the N.S.A. Now that foreign calls were being routed through switches on American soil, some judges and law enforcement officials regarded eavesdropping on those calls as a possible violation of those decades-old restrictions, including the Foreign Intelligence Surveillance Act, which requires court-approved warrants for domestic surveillance.

Historically, the American intelligence community has had close relationships with many communications and computer firms and related technical industries. But the N.S.A.'s backdoor access to major telecommunications switches on American soil with the cooperation of major corporations represents a significant expansion of the agency's operational capability, according to current and former government officials.

Phil Karn, a computer engineer and technology expert at a major West Coast telecommunications company, said access to such switches would be significant. "If the government is gaining access to the switches like this, what you're really talking about is the capability of an enormous vacuum operation to sweep up data," he said.
5.12.2006 10:48pm
OrinKerr:
The Ace,

I am deleting one your 9:43 post because it clearly crosses the civility line: There is really no need to call people "liars," "ignorant hypocrites" and the like just because you have a disagreement on an issue, or just because you assume that they are "leftists." (I should also point out that you seem to be on the much weaker side of the argument, making your accusations all the stranger.)

Please, folks, keep it civil.
5.12.2006 11:28pm
Hans Gruber (www):
"Anderson, I submit that terrorists are even smarter than some of us."

Like that super genius Richard Reid?
5.12.2006 11:50pm
Hans Gruber (www):
Orin,

It appears Ace is correct. Read the article. In particular read:


What has not been publicly acknowledged is that N.S.A. technicians, besides actually eavesdropping on specific conversations, have combed through large volumes of phone and Internet traffic in search of patterns that might point to terrorism suspects. Some officials describe the program as a large data-mining operation.

The current and former government officials who discussed the program were granted anonymity because it remains classified.

Bush administration officials declined to comment on Friday on the technical aspects of the operation and the N.S.A.'s use of broad searches to look for clues on terrorists. Because the program is highly classified, many details of how the N.S.A. is conducting it remain unknown, and members of Congress who have pressed for a full Congressional inquiry say they are eager to learn more about the program's operational details, as well as its legality.

Officials in the government and the telecommunications industry who have knowledge of parts of the program say the N.S.A. has sought to analyze communications patterns to glean clues from details like who is calling whom, how long a phone call lasts and what time of day it is made, and the origins and destinations of phone calls and e-mail messages. Calls to and from Afghanistan, for instance, are known to have been of particular interest to the N.S.A. since the Sept. 11 attacks, the officials said.

This so-called "pattern analysis" on calls within the United States would, in many circumstances, require a court warrant if the government wanted to trace who calls whom.


I eagerly await your analysis on the legality of the leaks themselves. Or does that not concern you?
5.13.2006 12:04am
OrinKerr:
Hans,

1) I disagree. The difficulty, it seems to me, is that the bolded sections don't really tell us anything. Everyone knows that the NSA has been doing pattern matching of non-content information: That's a major part of the NSA's mission. As a result, very vague statements that the NSA was doing pattern analysis isn't helpful. The question is always, analyis of what information, obtained how? What makes this story newsworthy is the scope of this particular set of information (all domestic customers) and how the government obtained the information (voluntary disclosure). The bolded portion that you and "The Ace" are focusing on doesn't tell any us of this, which is why I find the new disclosures very different and quite new. Put another way: The newsworthy part is new, so it seems to be a new story.

2) On the leaks: I assume some of the leaks of the 1st NSA story were illegal, and I am quite troubled by them. I'm not sure that the leaks of this story were illegal, as I gather some of the leaks are coming from the telephone companies themselves. But I have no background relevant to the legality of the leaks, and, given that, I really don't have anything to add to what others are saying. I don't know who the law covers, or how, or what constitutional issues those laws raise. Now, I could spend a lot of time to become an expert in that area of law, and then I could blog about it. But it's not really relevant to my broader research, and I'm so busy with other things (as I'm sure you understand) that it's hard to make that a priority. In contrast, I have spent years studying and writing about surveillance law in general and the Stored Communications Act in particular, which makes that a more natural thing for me to blog about.
5.13.2006 12:35am
Hans Gruber (www):
I agree that the USA Today story is more detailed than the previous story. In particular, the scope of the project is defined now when it wasn't in the other story (though it's not, as you suggest, all domestic calls).

But the description of the program is pretty much there in the December piece. Further, the article also contains information about how the government was getting some of the data--partnership with telecomms. While we certainly have more specifics, it does appear to be the same program described last December.

I understand this is your area of expertise and value your learned contributions; forgive my implication that you don't care about the leaks.

This might have already been mentioned, but I don't see the consent argument as necessarily weak. The case you cite, I assume, is about actual recording of conversations for criminal prosecution. The program in question concerns phone records and data-mining (without names) to promote national security.
5.13.2006 1:17am
Apodaca:
Hans Gruber says:
This might have already been mentioned, but I don't see the consent argument as necessarily weak. The case you cite, I assume, is about actual recording of conversations for criminal prosecution. The program in question concerns phone records and data-mining (without names) to promote national security.
The different character of the information is immaterial, Hans. The meaning of "consent" is consistent across the Wiretap Act and the Stored Records Act (aka ECPA).
5.13.2006 2:39am
Harry Eagar (mail):
Hans, I'd have said that Reid was about as efficient and smart as your run-of-the-mill CIA agent. What a bunch of doofuses they are.

It strikes me now, after reading all this learned legal commentary, that the weirdest thing about the whole affair is that the government didn't do anything about Qwest.

If the mining is that important, then why didn't they coerce Qwest?

It's really hard to believe that Reid really is dumber than the morons in charge in Washington.
5.13.2006 2:59am
Hans Gruber (www):
"The different character of the information is immaterial, Hans. The meaning of "consent" is consistent across the Wiretap Act and the Stored Records Act (aka ECPA)."

I don't see that being compelled by the text. In the Posner case, there was consent, it was just the judgment of the Court that the consent wasn't explicit enough given the circumstance. Courts interpret simple language to apply differently to different circumstances all the time.
5.13.2006 10:02am
anonymouslawyer:
Professor Kerr, I greatly admire your work, but I do think your criticism of Judge Posner doesn't stand up. All he is saying is that, although the the Second Circuit in Amen indicated that consent can be inferred from the CFR, the Seventh Circuit would place "no weight" on that argument. And contrary to your follow-up post, the Second Circuit's opinion did not say that the CFR notice and the actual notice put the inmates on notice based on the "totality of the circumstances." Rather, by saying that the inmates "were on notice of the prison's interception policy from at least four sources," one of which was the CFR, the Second Circuit left it ambiguous as to whether any one factor could stand independently or not. Regardless, the Second Circuit was giving some weight to the publication in the CFR, and Judge Posner was indicating that, notwithstanding Amen, the Seventh Circuit would give no weight to that factor. I don't see how you get from there to saying that, contra Posner, the Second Circuit "did no such thing" and that Posner was being sloppy.

fairly say that Judge Posner was being sloppy.
5.13.2006 10:56am
OrinKerr:
Anonymous Lawyer,

At this point we're disagreeing about the precise meaning of two sentences in two opinions from two decades ago, so I don't know how much general interest is left on this. But to go just one more round, I still see things differently: Posner stated in Daniels that the Second Circuit "accepted" the argument that "consent can be inferred from a provision in the Code of Federal Regulations," and I don't see the Amen case as doing that. Amen arguably left that question open, but I don't think it "accepted" an answer to it.

I suppose some of this may come down to which of the several dictionary definitions of "infer" you are using -- to conclude based on the evidence, or merely to hint at? -- but comparing the Amen case with Posner's passing description, I still see the latter as sloppy. In any event, thanks for the careful reading of the cases.
5.13.2006 11:45am
anonymouslawyer:
Fair enough. As I said earlier, I greatly admire your work, Professor Kerr, and I agree that that this is a side issue that has run its course.
5.13.2006 12:05pm
logicnazi (mail) (www):
What is with all these claims that terrorists are such a grave threat that we need to override other protections or that this gives an excuse for the phone companies to turn over records.

Al Qaeda seems to be killing no more than 3,000 people per decade at the moment. Yet, "There were 16,694 alcohol-related fatalities in 2004 – 39 percent of the total traffic fatalities for the year" (http://www.alcoholalert.com/drunk-driving-statistics.html). Thus drunk driving is 50 times more likely to kill you than a terrorist attack. Sure if we exclude the actual drunk drivers this number might drop a bit but it still means that people who drink and drive are far more likely to kill you, your friends and relatives than Al Qaeda. So if you don't think that government enforcement of drunk driving laws allows for this sort of legal bending why the hell would one think that terrorist prevention does?

As for the argument that the phone companies are off the hook because they are revealing information to prevent property damage, or other sorts of harm how does this not apply equally well to drunk driving. Suppose AT&T handed over it's Daytona database to the NSA so they could better enforce drunk driving laws. Would this be okay? If not how do you distingush the terrorist case from this case?
5.13.2006 7:16pm
Smithy (mail) (www):
So Smithy, I don't suppose you would mind if the FBI walked into your house (no need to knock) and had a look around, peered over your shoulder while you were on the internet, rifled through your underwear drawer, asked how many guns you owned, where you kept them and then asked to see them.

Got no problem with that except for the part about guns. The rest sounds perfectly reasonable to me.
5.14.2006 3:46pm
TallDave (mail) (www):
TallDave and others make an excellent point that the President simply cannot be expected to follow the law as written by Congress.

They're not required to follow laws that contravene the Constitution.

Let's say that tomorrow, the Congress passes a law abolishing the Constitution, imprisoning the Executive and Judicial branches, and making itself the sole power in the land. Are they required to go to prison?
5.17.2006 1:02am
TallDave (mail) (www):
Logicnazi,

False equivalence. Drunk drivers aren't trying to kill us.

By that logic, we could argue for shifting the entire military defense budget into drunken driving prevention.
5.17.2006 1:08am