Is It Legal?

There has been a lot of discussion about the legality of the NSA’s telephone data collection and analysis program, most of it not very illuminating. I haven’t had an opportunity to form an opinion, and I’m not an expert in telecommunications law. In my quick review of what seems to be the relevant law, I’ve encountered several puzzling provisions. But one section I haven’t yet seen cited, which seems relevant, is Title 18, Chapter 121, Section 2709 of the U.S. Code. It specifically allows the government to obtain telephone records for purposes of investigating terrorist threats. Here is Sec. 2709 in its entirety; I have highlighted some of the pertinent language:

§ 2709. Counterintelligence access to telephone toll and transactional records

(a) Duty to provide.–A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.

(b) Required certification.–The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may–

(1) request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and

(2) request the name, address, and length of service of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

(c) Prohibition of certain disclosure.–No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.

(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.

(e) Requirement that certain congressional bodies be informed.–On a semiannual basis the Director of the Federal Bureau of Investigation shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate, and the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate, concerning all requests made under subsection (b) of this section.

So there is no question about the fact that the federal government can obtain anyone’s telephone billing records simply by requesting them, if they are relevant to a terrorism investigation, and the telecom companies “shall comply” with such requests. Under this section, the FBI can pass the phone records on to another government agency, like the NSA, if the information is relevant to that agency’s duties.

The question, it seems to me, is whether Sec. 2709 authorizes a blanket request not for the records of a particular person, or the records relating to a particular phone number, but for the records of all of the company’s subscribers. Such a broad request probably wasn’t contemplated when the statute was adopted, and it might be argued that all of the records can’t possibly be relevant to any terrorism investigation. But why not? I don’t think it is unreasonable to argue that, for a data mining project like the one carried out by the NSA, the records of all telephone subscribers are relevant. If that is the case, there is no obvious reason why this provision wouldn’t authorize a request for all subscriber records, with which the companies would be required to comply.

I haven’t seen any indication that the government relied on Sec. 2709 when it made its requests to the phone companies, or that the FBI certification contemplated by 2709(b) was given. But it may have been; the White House hasn’t said much about the procedures the government followed or the legal principles it relied on. I’m also not sure whether the reference to “toll billing records” represents a material limitation. I would assume this includes records of all “local and long distance” calls, but maybe I’m missing something here, and perhaps this provision wouldn’t have allowed the FBI to obtain the full range of records that the NSA wanted.

There are a number of provisions of various statutes under which the government’s request to the telecoms might have been justified. It will take some time to sort through the various rationales. This is an odd situation, too, in that the government didn’t use any compulsory process, but apparently just asked the companies for their records. It is possible that it could have been illegal for the companies to respond to the request, but on what theory would it be illegal for the government to ask?

What Sec. 2709 establishes beyond question is that anyone’s telephone records can be obtained by the federal government, without court order, in the course of a terrorism investigation. Which I think renders some of the more hysterical reaction to the NSA program a little silly.

UPDATE: Maybe I’m the only one who didn’t already know this, but I was astonished to learn that there is no expectation of privacy in telephone records at all. Section 2702(c) sets out the circumstances in which a telecom provider can disclose phone records, not including the contents of communications. So this would cover the call information at issue in this program. 2702(c)(6) says that such phone records may be freely disclosed, at the company’s discretion:

(6) to any person other than a governmental entity.

That’s right. These supposedly top-secret telephone records can be given or, more likely, sold to any company or private citizen. So if I had enough money, I could buy the phone records of every person in the U.S., and donate them to the NSA.

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