Sunday, May 21, 2006
Judicial RhetIraq: Legality of "Terrorist Surveillance Program"
Who: Peter Swire (Ohio State Law Professor and Fellow at Center for American Progress) and Judd Legum (Director of Reserach at Center for American Progress)
Source: The Enquirer at Cincinnati.com
Quotes: From opinion article titled, "Disclosing records clearly illegal"
The National Security Agency has obtained the calling records of tens of millions of Americans from major phone companies, according to a recent story in USA Today. If the paper has its facts right, both the government and the phone companies broke the law.
Among the many legal issues, the biggest concern for the phone companies is the Stored Communications Act of 1986. That law prohibits phone companies from disclosing customer records to the government, with exceptions that don't appear to apply. Every customer whose rights are violated is entitled to a minimum of $1,000, plus attorney's fees. If records were disclosed for 50 million customers, as seems possible, then damages would be $50 billion.
Domestic surveillance against terrorists is usually done under the Foreign Intelligence Surveillance Act (FISA).
That law gives two ways to make the NSA's conduct legal. First, the government could go to the FISA court and get a court order. Second, the attorney general could personally certify that the program was legal. According to USA Today, neither action was taken. In fact, attorneys for one major phone company, Qwest, asked the NSA to use those two options, but the agency declined. As a result, and apparently understanding its liability exposure, Qwest refused to participate in the program.
Some defenders of the program have pointed to an emergency exception in the law, allowing disclosure to the government to prevent imminent harm. Emergency exceptions in the wiretap law, however, are generally for only 72 hours - long enough to get a court order - and not for the four years this program has apparently existed.
Another exception might apply if the records were anonymized.
These records, though, contain individual phone numbers, which are easily linked to customer names and do not count as "anonymous" under the federal Privacy Act.
Finally, one unnamed administration source told the press that customers have "consented" to the program, a last-ditch effort to find an exception. The terms of service for some phone companies say they can disclose your records for "exigent circumstances."
That vague language is not nearly good enough to show actual customer consent for the government to access all your phone calls. We know that many Americans are surprised and outraged by the government actions. They did not consent to this secret program, and we don't think the courts will accept such a legal fiction.
None of this means that the government should not aggressively detect and prevent terrorist attacks. But there are plenty of legal options available to fight terrorism. If the Bush administration thinks current law does not permit activities essential to protect Americans, it should make its case to Congress and seek to change the laws.
In our constitutional system, the president and his agents do not get to pick and choose which laws to follow. Defending American democracy means more than just fighting terrorism - it means doing so in a way that puts checks on government power and leaves our values intact.
Source: The Enquirer at Cincinnati.com
Quotes: From opinion article titled, "Disclosing records clearly illegal"
The National Security Agency has obtained the calling records of tens of millions of Americans from major phone companies, according to a recent story in USA Today. If the paper has its facts right, both the government and the phone companies broke the law.
Among the many legal issues, the biggest concern for the phone companies is the Stored Communications Act of 1986. That law prohibits phone companies from disclosing customer records to the government, with exceptions that don't appear to apply. Every customer whose rights are violated is entitled to a minimum of $1,000, plus attorney's fees. If records were disclosed for 50 million customers, as seems possible, then damages would be $50 billion.
Domestic surveillance against terrorists is usually done under the Foreign Intelligence Surveillance Act (FISA).
That law gives two ways to make the NSA's conduct legal. First, the government could go to the FISA court and get a court order. Second, the attorney general could personally certify that the program was legal. According to USA Today, neither action was taken. In fact, attorneys for one major phone company, Qwest, asked the NSA to use those two options, but the agency declined. As a result, and apparently understanding its liability exposure, Qwest refused to participate in the program.
Some defenders of the program have pointed to an emergency exception in the law, allowing disclosure to the government to prevent imminent harm. Emergency exceptions in the wiretap law, however, are generally for only 72 hours - long enough to get a court order - and not for the four years this program has apparently existed.
Another exception might apply if the records were anonymized.
These records, though, contain individual phone numbers, which are easily linked to customer names and do not count as "anonymous" under the federal Privacy Act.
Finally, one unnamed administration source told the press that customers have "consented" to the program, a last-ditch effort to find an exception. The terms of service for some phone companies say they can disclose your records for "exigent circumstances."
That vague language is not nearly good enough to show actual customer consent for the government to access all your phone calls. We know that many Americans are surprised and outraged by the government actions. They did not consent to this secret program, and we don't think the courts will accept such a legal fiction.
None of this means that the government should not aggressively detect and prevent terrorist attacks. But there are plenty of legal options available to fight terrorism. If the Bush administration thinks current law does not permit activities essential to protect Americans, it should make its case to Congress and seek to change the laws.
In our constitutional system, the president and his agents do not get to pick and choose which laws to follow. Defending American democracy means more than just fighting terrorism - it means doing so in a way that puts checks on government power and leaves our values intact.
