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.

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  1. Is he wrong, or is he lying?

    I’m normally one to give the benefit of the doubt, but I’m really getting sick of all the people justifying Bush’s anything-goes bullshit.

  2. The guy is not “wrong” worth a damn. The goddam statutes say what they say. He wrote a column, and the editors ran the fucking thing, that basically said up is down, black is white, and everything is cool so don’t nobody worry their heads about it. And that was the whole point. This is very similar to, but even more obviously incorrect than, the insta-analysis done by all the apologist legal “scholars” who read the case law and said Bush was within Supreme Court precedent when he ordered warrantless spying. In fact, the case law said the opposite, or was utterly beside the point. This is not “spinning.” It is lying.

  3. The large-scale analysis of anonymized data can pinpoint individuals — at home or abroad — who warrant more intrusive investigative or intelligence techniques, subject to all safeguards normally associated with those techniques.

    Umm… if analysis of anonymized data can pinpoint individuals at all, than the data is by definition not anonymized.


  4. I remember reading somewhere (probably here) about just how worthless the FBI considered all this information-mined data they were getting from the NSA – most of it led to nothing, and most of all it wasted their time. It seems like a lowest common denominator-type of investigative technique – like the police seaching through the sales records of every brown 4 door POS sold in the last twenty years to find a suspect based on a partial description. Leads me to believe it may just be a cover to get post-search warrants or something.

  5. I remember reading somewhere (probably here) about just how worthless the FBI considered all this information-mined data they were getting from the NSA – most of it led to nothing, and most of all it wasted their time.

    Given the FBI’s bang-up job of investigating the potential threat of commercial airliners being used as suicide missiles in the summer of 2001, I’d say sentiments like that only bolster Bush’s argument.

  6. Case law cited above states that the “CONTENTS of electronics communications” may not be divulged in those circumstances. In the NSA’s case, the contents don’t appear to have been disclosed, merely the call records.

    I’m just going on what I’ve read so far, but these details matter. In Smith v Maryland in 1979, the Supreme Court ruled that callers have no expectation of privacy concerning the records of who called who, when, and for how long. The reason is that the caller isn’t the legal OWNER of that data – the phone company is.

    The caller is the legal owner of the CONTENTS of the conversation, although I haven’t read that the phone companies shared data (except for international calls to enemy states, although that’s a FISA issue).

    I’m no fan of this stuff, but from a legal perspective, it doesn’t look like much wrong was done.

  7. Catch 22:

    United State District Court — Northern California
    Case No. C 06-0672-VRW
    Filed: May 13, 2006
    Notice of Motion and Motion to Dismiss, Or, in the Alternative, for Summary Judgement by the United States of America

    (U) Even if the very subject matter of an action is not a state secret, if the plaintiff cannot make out a prima facise case in support of its claims absent the excluded state secrets, the case must be dismissed…

    1. Plaintiffs Cannot Establish Standing
    (U) As a result of the Government’s state secrets assertion, Plaintiffs will not be able to prove that they have standing to litigate their claims…

    (U) Plaintiffs cannot prove these elements without information covered by the state secrets assertion. The Government’s privilege assertions covers any information tending to confirm or deny (a) the alleged intelligence acitivies, (b) whether AT&T was involved with any such activity, and (c) a particular individual’s communications were intercepted as a result of such activity. See Public Declaration of John D. Negroponte…

  8. SecondGuesser, you didn’t read the entire law cited above.

    Section 2702, subsection a, paragraph 3 states:

    a provider of remote computing service or electronic communication 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.

    Thus, not just contents of messages, but all records and information stored by a telecoms provider are to be treated as confidential without a court order.

  9. For everyone’s information.

    Verizon now claiming they gave no data to NSA.

  10. Of course, the law in question does not make it illegal for the government to ask, just for the providers to comply.

  11. Lunchstealer, I think you misunderstood which “records” are relevant in the law you cite above. The term “records” does not cover call logs and records.

    Rather, “records” in the law cited above means billing records – data like payments, amounts, payment mechanisms, missed payments, billing addresses, and other “records” that BELONG TO THE CONSUMER.

    The NSA situation, from what I’ve read, does not involve records belonging to the consumer. Rather, it involves records belonging to the provider. Thus my citation of Smith v. Maryland, which established in 1979 that call records are specifically the property of the telephone company and NOT property of the consumer. Billing records, by contrast, are private and considered the property of the consumer.

    So you can see that if the phone companies gave the NSA billing records or transcribed contents of the communications, you’d be correct and I’d support your statement. But unfortunately the phone companies and the NSA, from what I’ve read, were within the law concerning the data that was shared.

  12. Um, while I’ll admit I haven’t spent the necessary time researching this issue…

    SecondGuesser, you’re trying to argue a 1979 SCOTUS decision here… up against a law passed in 1986 which seems, in essence, to grant (and explicitly) a reasonable expectation of privacy for telecom records (arguably including “envelope” information).

    In other words, the lawmakers of the day – acting AFTER Smith v. Maryland and, presumably, with it in mind – seem to have wanted to clarify the matter as to what’s okay and what is not. To my knowledge, the relevent provisions of the 1986 law have not been invalidated by SCOTUS.


  13. U.S. Code as of: 01/06/03

    Section 2703. Required disclosure of customer communications or records

    (c) Records Concerning Electronic Communication Service or Remote Computing Service. — (1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity — (A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant; (B) obtains a court order for such disclosure under subsection (d) of this section; (C) has the consent of the subscriber or customer to such disclosure…

    (d) Requirements for Court Order. — A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records of the information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.

  14. You make a really good point, but I still don’t buy it for one reason only.

    Telephone numbers and records of which telephones connected to which numbers are not “pertaining to a subscriber”. (As we all know, telephone numbers can be recycled from subscriber to subscriber and therefore do not necessarily pertain to any particular subscriber. And then there’s the case of pay phones.)

    In addition, telephone numbers in isolation are not private information. In fact, you can find them online.

    To me, it’s kind of like a gas station. The police go in to a gas station and ask, “Will you tell me what cars came through the gas station today?” The station attendant says, “Sure. A blue van with Florida plates came through just in front of a green Toyota with Georgia plates.”

    “Can you tell me how they paid?”


    “Can you tell me what their credit card number is?”

    “No friggin way, dude.”

  15. The other important thing to note here is that the USA Today story is now being called into question.

    Ironic that “anonymous sources” cried wolf on a privacy issue. This is starting to sounds like an axe grinding.

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