So Long As You Don't Say 'No' You've Said 'Yes'
The administration's latest angle on its illegal domestic surveillance projects is that major telco customers consented to having their privacy invaded by simply signing up for a phone plan. Peter Swire offers four distinct rebuttals of this argument:
You can’t consent to a secret program. Under this “consent” defense, a federal court would have to hold that even the people outraged by the NSA program have given their individual consent to it. That’s a legal fiction we don’t think courts will accept. It’s doubtful we can give our consent to any secret program.
You can’t consent to a secret program. Under this “consent” defense, a federal court would have to hold that even the people outraged by the NSA program have given their individual consent to it. That’s a legal fiction we don’t think courts will accept. It’s doubtful we can give our consent to any secret program.
Tags: Wiretapping
posted by Management at 5:54 PM
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Data on Phone Calls Monitored
Extent of Administration's Domestic Surveillance Decried in Both Parties
By Barton Gellman and Arshad Mohammed
Washington Post Staff Writers
Friday, May 12, 2006; A01
The Bush administration has secretly been collecting the domestic telephone records of millions of U.S. households and businesses, assembling gargantuan databases and attempting to sift through them for clues about terrorist threats, according to sources with knowledge of the program.
The "call detail records" enable U.S. intelligence agencies to track who calls whom, and when, but do not include the contents of conversations, the sources said, speaking on the condition of anonymity because they were not authorized to discuss the program. The companies cooperating with the National Security Agency dominate the U.S. telecommunications market and connect hundreds of billions of telephone calls each year. Intelligence analysts are seeking to mine their records to expose hidden connections and details of social networks, hoping to find signs of terrorist plots in the vast sea of innocent contacts.
Fresh disclosures yesterday in USA Today about the scale of domestic surveillance -- the most extensive yet known involving ordinary citizens and residents -- touched off a bipartisan uproar against a politically weakened President Bush. Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) vowed to haul telephone companies before his committee under oath to ferret out details the Bush administration refuses to supply, and more than 50 House Democrats signed a letter demanding a criminal investigation by a special counsel.
Bush made an unscheduled appearance before White House reporters and sought to shape perceptions about the surveillance while declining to acknowledge that it is taking place. He said that "the intelligence activities I authorized are lawful," but specified no source of statutory or constitutional authority. He denied forcefully that his administration is "mining or trolling through the personal lives of millions of innocent Americans," saying, "Our efforts are focused on links to al-Qaeda and their known affiliates."
Neither Bush nor his subordinates denied any factual statement in the USA Today report, which said AT&T Inc., Verizon Communications Inc. and BellSouth Corp. have provided customer calling records to the NSA since shortly after the terrorist attacks of Sept. 11, 2001. Together those companies serve about 224 million conventional and cellular telephone customers -- about four-fifths of the wired market and more than half of the wireless market. According to data provided by the research group TeleGeography, the three companies connected nearly 500 billion telephone calls in 2005 and nearly 2 trillion calls since late 2001.
Though he did not acknowledge particulars, the president complained that any leak about "sensitive intelligence" methods "hurts our ability to defeat this enemy." Senate Select Intelligence Committee Chairman Pat Roberts (R-Kan.), who said he has been briefed on "all aspects of the NSA's activities," likewise said he is "increasingly frustrated with the release of sensitive data regarding our nation's best defenses" against terrorist attack.
Yesterday's report in USA Today arrived as Air Force Gen. Michael V. Hayden, the president's nominee to be CIA director, faced tough scrutiny on Capitol Hill for his role in the interception of calls and e-mails between Americans and parties abroad. After the New York Times disclosed the eavesdropping in December, the White House dubbed it a "terrorist surveillance program" and said it involved only international communications by people with "known links" to al-Qaeda and its allies. The Washington Post reported in February that about 5,000 Americans had been subject to eavesdropping under the program and that nearly all of them had been cleared of suspicion.
The new report, by contrast, described a far broader form of surveillance, focused primarily on domestic phone-call records. Some of its elements have been disclosed before. The Los Angeles Times reported in December that AT&T provided the NSA with a "direct hookup" into a company database, code-named Daytona, that has been recording the telephone numbers and duration of every call placed on the AT&T network since 2001. The Electronic Frontier Foundation, which has sued AT&T over that and other alleged violations of privacy law, said the call database spans 312 terabytes, a quantity that would fill more than 400,000 computer compact discs.
Government access to call records is related to the previously disclosed eavesdropping program, sources said, because it helps the NSA choose its targets for listening. The mathematical techniques known as "link analysis" and "pattern analysis," they said, give grounds for suspicion that can result in further investigation.
"Let's say lots comes in and we don't see anything interesting," said a source who helped develop the technology. "Tomorrow we find out someone is communicating with a known terrorist. When you go back and look at the past data, there may be information that you missed. A pattern that was meaningless suddenly makes sense."
Critics reacted angrily yesterday, contrasting the new disclosures with the Bush administration's previous claims that domestic surveillance is narrowly targeted and restricted to international communications.
"Both the attorney general and the president have lied to the American people about the scope and nature of the NSA's program," said Anthony D. Romero, executive director of the American Civil Liberties Union. "It's clearly not focused on international calls and clearly not just focused on terrorists. . . . It's like adding more hay on the haystack to find that one needle."
Lawyers who specialize in national security and communications, in and out of government, said it is difficult to assess the legality of the program because some of its features remain unknown. The Foreign Intelligence Surveillance Act, enacted in 1978, requires a court order before the government can eavesdrop on the content of domestic calls or keep live track of the phone numbers dialed by a U.S. telephone. But it does not cover wholesale acquisition of call records after the fact.
Privacy laws restrict distribution of customer records to third parties, including the government, but there are exceptions. With a court order, a subpoena or a "national security letter" from the FBI, a telephone company may be compelled to hand over records of specified individuals. In other circumstances, the law may be murkier.
According to USA Today, the telephone companies are removing the names and addresses of their customers from the records they give the NSA. But the government has many means of identifying account owners, including access to commercial databases from ChoicePoint and LexisNexis.
"The statutes weren't drafted with the dragnet approach in mind," said Orin S. Kerr, a George Washington University law professor and former Justice Department lawyer. "And if this happened, who committed the violation? Is it the government or is it the phone company? It's really not clear."
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.
"It is within their terms of service because you have consented to that," the lawyer said. If the company also consents, "and they do it voluntarily, the U.S. government can accept it."
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."
Like the other companies named by USA Today, Verizon declined to confirm or deny that it had turned over customer records. "We do not comment on national security matters, we act in full compliance with the law and we are committed to safeguarding our customers' privacy," spokesman Peter Thonis said in a statement. But Verizon Wireless, a joint venture with Britain's Vodafone Group PLC, denied involvement in the program.
An AT&T spokesman said in a written statement that it has "a long history of vigorously protecting customer privacy" and provides records to the government "strictly within the law" but that "we don't comment on matters of national security." BellSouth spokesman Jeff Battcher said the company "does not provide any confidential customer information to the NSA or to any government agency without proper legal authority."
Staff writers Dafna Linzer, Dan Eggen, Charles Babington and Robert O'Harrow Jr. and researcher Julie Tate contributed to this report.
© 2006 The Washington Post Company
Did You Consent to Be Wiretapped?
“Consent” appears to be the right wing’s favorite defense for the apparent decision by major phone companies to hand over millions of customers’ calling records to the National Security Agency. As reported in the Washington Post, “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.”
hinkProgress has been compiling legal answers to all the questions about telco liability, here and here. Here’s why the consent argument won’t work:
1. The telco language terms of service provide no basis for “consent.” The terms of service of AT&T, BellSouth, and Verizon highlight that they will turn over records in response to court orders or subpoenas, which did not exist, according to USA Today. Verizon also mentions “exigent circumstances” – a very slim reed on which to conclude that customers gave actual consent to having all their phone calls disclosed to the government.
2. Consent is for a specific action, not a blanket permission. As explained by former prosecutor and law professor Orin Kerr, cases under the wiretap laws require 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.” You give consent for a call when you have actual notice. That’s why we always hear that “this call may be monitored for quality assurance purposes.”
3. You can’t consent to a secret program. Under this “consent” defense, a federal court would have to hold that even the people outraged by the NSA program have given their individual consent to it. That’s a legal fiction we don’t think courts will accept. It’s doubtful we can give our consent to any secret program.
4. It would mean you consented to have the contents your calls handed over to the government. USA Today reported that the phone companies turned over call detail information – which phone numbers called which other phone numbers. The consent provision for call detail information [18 USC § 2702 and 2703] is essentially the same as the consent provision for wiretaps of the full contents of calls and e-mails [Sec. 2511(c)]. When you signed up for phone service, did you and all your friends consent to have the government listen to all your calls? That would make a mockery of decades of wiretap law.
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