The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.Is this legal?
The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren't suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.
“It's the largest database ever assembled in the world,” said one person, who, like the others who agreed to talk about the NSA's activities, declined to be identified by name or affiliation. The agency's goal is “to create a database of every call ever made” within the nation's borders, this person added.
It is a good time to review the law regarding this matter.
Pen registers are surveillance devices that capture the phone numbers dialed on outgoing telephone calls. Trap and trace devices capture the numbers identifying incoming calls.
In an increasingly connected world, a recording of every telephone number dialed and the source of every call received can provide a very complete picture - a profile - of a person's associations, habits, contacts, interests and activities. For that reason, pen registers and trap and trace devices pose significant privacy concerns.
The government is attempting to create a database of every call dialed or received in the United States. Though the data will not automatically identify the maker or recipient of any phone call, such data is easily obtained by other means.
The pen register and trap and trace statute, was enacted as part of The Electronic Communications Privacy Act of 1986 (“ECPA”), 18 USC 3121 et seq. It governs real-time interception of “the numbers dialed or otherwise transmitted on the telephone line to which such device is attached.”
To get a court order permitting this, a Government Attorney needs only to certify under oath that “the information likely to be obtained is relevant to an ongoing criminal investigation.” 18 USC 3122-23. The judge is required to issue the authorization. (There is no constitutional or statutory threshold for opening a criminal investigation.)
The court order must be limited in duration to 60 days, and can only be renewed upon a new certification from the Government Attorney for a period of 60 days.
The order shall specify--
(A) the identity, if known, of the person to whom is leased or in whose name is listed the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied;
(B) the identity, if known, of the person who is the subject of the criminal investigation;
(C) the attributes of the communications to which the order applies, including the number or other identifier and, if known, the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied, and, in the case of an order authorizing installation and use of a trap and trace device under subsection (a)(2), [providing for applications by State law enforcement personel] the geographic limits of the order; and,
(D) a statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates; and
Whoever uses a pen register or a trap and trace device without an order is subject to being fined and imprisoned up to one year.
Section 2702 of Title 18, part of the ECPA, provides that “a provider of ... electronic communication service [including telephone service] to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service ... to any governmental entity” without the customer's consent or a subpoena or court order. Under section 2707, carriers face civil liability, including minimum damages of $1,000 per violation, punitive damages, and attorneys fees. Government employees who participated in a violation also may face administrative discipline.
The bottom line is this: If the report in USA TODAY is true, there can be no doubt that the administration has engaged in a huge criminal enterprise, in which nearly every American’s rights have been violated.
President Bush has abused his power and for that, Congress has the duty to impeach.
“… and tell ’em Big Mitch sent ya!”