Why Can't You Be a Good Telephone Company Like Your Competitors?

Today's New York Times presents dueling experts opining on the legality of the NSA's phone call database:

Kate Martin, director of the Center for National Security Studies, said, "If they don't get a court order, it's a crime." She said that while the F.B.I. might be able to get access to phone collection databases by using an administrative subpoena, her reading of federal law was that the N.S.A. would be banned from doing so without court approval.

But another expert on the law of electronic surveillance, Kenneth C. Bass III, said that if access to the call database was granted in response to a national security letter issued by the government, "it would probably not be illegal, but it would be very troubling."

As the Bush administration's defenders would be quick to note, the balance here is a little lopsided: Surely the Times could have found an expert who would have pronounced the data collection both legal and untroubling. But what struck me was the lingering doubt about whether the government presented an administrative subpoena, as opposed to a court order, when it asked for the phone records. Judging from USA Today's account, the NSA simply asked for the phone companies' cooperation. When Qwest declined, the government did not demand that the company comply under penalty of law; instead it "put pressure on Qwest":

NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies. It also tried appealing to Qwest's patriotic side: In one meeting, an NSA representative suggested that Qwest's refusal to contribute to the database could compromise national security, one person recalled. …In addition, the agency suggested that Qwest's foot-dragging might affect its ability to get future classified work with the government.

If the government had presented Qwest with a national security letter, it seems unlikely the company would have said no to begin with. Aside from the possibility of legal penalties for failing to comply (which would have required court action, something the administration wanted to avoid), an administrative subpoena would have given Qwest the legal cover it wanted under the Communications Act, which says phone companies may release customers' records without their permission if legally required to do so. It seems clear the NSA was working outside the usual legal procedures, even those designed for secret national security investigations.