Permits, Prohibits, Whatever

On Saturday Richard A. Falkenrath, a former deputy homeland security adviser to President Bush, had an op-ed piece in The Washington Post defending the NSA's phone record database. Among other things, he asserted that the Electronic Communications Privacy Act (ECPA) "explicitly permits telecommunications companies to provide customer records to the government if the government asks for them." Not quite, as Orin Kerr notes over at the Volokh Conspiracy. The law actually prohibits a phone company from divulging customers' records to the government without their permission unless the government has a court order or subpoena. There's also an exception for investigations of telemarketing fraud requested by the phone company, but that is probably not what Falkenrath had in mind. "Falkenrath is just wrong about ECPA," Kerr concludes.