Two related items, Federal Source to ABC News: We Know Who You're Calling and FBI Acknowledges: Journalists Phone Records are Fair Game
The arcane legal language, the precedents, executive orders are diffcult and time consuming to dig through. These events in themselves are frustrating, but what may be even more frustrating is that they may be wrong in terms of ethics, but there may be a legal grey zone. Brian Ross notes at the end of the second story concerning the FBI and its' powers not the NSA,
"The FBI will take logical investigative steps to determine if a criminal act was committed by a government employee by the unauthorized release of classified information," the statement said.
Officials say that means that phone records of reporters will be sought if government records are not sufficient.
Officials say the FBI makes extensive use of a new provision of the Patriot Act which allows agents to seek information with what are called National Security Letters (NSL).
The NSLs are a version of an administrative subpoena and are not signed by a judge. Under the law, a phone company receiving a NSL for phone records must provide them and may not divulge to the customer that the records have been given to the government.
If this was a newspaper, think of this nest part as a little box in the right margin. The thoughts of ill informed cloudy thinking individuals who have a difficult time wrestling with the complexities involved of living in a democracy,
Good! I hope they do find out who is leaking national security info to the press. I'm tired of the press helping our enemies. Maybe you guys should start trying to "FOR the USA" instead of "AGAINST the USA" ALL THE TIME. I hope the FBI nails lots of idiots who are out to destroy the intelligence agencies and cost us more soldiers and spys!
Posted by: Grace | May 15, 2006 11:09:57 AM
'Bout time you guys are roped in.
Posted by: Brad | May 15, 2006 11:11:50 AM
Excellent the Media needs looking after, Traitors most of them…….
Posted by: ken wiley | May 15, 2006 11:12:07 AM
good, you seditionist creeps deserve what you get. who knows how many serviceman have died because of your "right to know"
Posted by: jeff bynum | May 15, 2006 11:12:10 AM
I hope the information they gain allows them to catch the scum that leak information, and helps them arrest the communist scum who publish it.
As far as the comments go, I think we all know people like this. They used their civics text books as food trays for their pork rinds and think the constitution is fine as long as it doesn't interfere in their eliminationism.
There is one imporatnt thing to keep in mind, while the right-wing reactionaries will give their knee jerk approval to almost anything Bush and big government conservatism does supposedly in the name of national security, the progressive side of blogtopia should be careful to keep the details straight. The story from ABC is about the FBI, not the NSA which is not another shoe dropping, its a different set of rules as Ross points out in regards to the NS letters.
Now back to the NSA. I'm not going to link to the tripe that WaPO published by Richard Falkenrath in defense of the NSA's activities, but Orin Kerr exposes Falkenrath's lie about the Electronic Communications Privacy Act of 1986,
3. Falkenrath is just wrong about ECPA. He states that “the Electronic Communications Privacy Act of 1986 explicitly permits telecommunications companies to provide customer records to the government if the government asks for them.” No, it doesn’t. There is no “government request” exception to the ban on disclosure.
The telcos turned over records without a warrant which may make them liable. The case could also be made that the NSA acted in bad faith and by nature of its authority, intimidation could have been a factor in how the telcos that did cooperate came to do so. In Orin's comments Bruce sites some case law that may apply,
Even if, however, the government ultimately proves to be right in its assessment of § 2703(c)(1)(B), the Plaintiff has plead § 2703(a) and (b) as alternative grounds for relief. In his claim that the government, at the least, solicited a violation of the ECPA by AOL, the Court finds that there is likely success on the merits with regard to this issue. The government knew, or should have known, that by turning over the information without a warrant, AOL was breaking the law. Yet the Navy, in this case, directly solicited the information anyway.
So when the NSA approached AT&T etc and did not provide a warrant they knew they were asking those telcos to break the provisions of ECPA. So what the argument goes, the NSA got phone numbers which were are supposedly not personally identifiable no harm done, Kevin Drum points out the obvious,
Even a child knows that phone numbers can be linked to names and addresses using ordinary commercial databases. There is absolutely nothing anonymous about this data, and only a shameless con man would try to convince us otherwise. Why does the Post give space to this obvious agitprop?
So legally as far the information that is available as I write this where do we stand. The NSA is in over its head as a result of the massive grab of telephone numbers that they have monitored without a warrant and clearly cannot show to any remotely reasonable degree that millions of Americans are or were an immient threat to our national security, Questions and Answers on Potential Telco Liability
In sum, the Stored Communications Act (SCA) prohibits handing over the records, and it provides at least $1,000 in damages per customer for violations. For 50 million or more customers, that leads to big damages indeed.
This post responds to the legal questions and comments that we’ve seen so far. We still don’t see any decent legal defense against liability, and that may be why Qwest refused to go along with the NSA demands:
1. Isn’t the conduct covered under another part of the SCA? Maybe. If the phone companies “voluntarily” gave the records to the NSA, then 18 U.S.C. 2702(c) applies. If the phone companies were required to turn over the records, such as through a court order, then Section 2703(c) applies. The bottom line is the same – none of the exceptions apply, and liability exists.
2. What about the emergency exception? Section 2702 has an exception for “an emergency involving immediate danger of death or serious physical injury.” Other emergency exceptions in the wiretap laws have time frames such as 72 hours, giving time for the government to get a court order. This exception won’t cover the NSA program, which is now going on five years.
3. What about the consent exception? Section 2702 and 2703 both have an exception for disclosure with the consent of the subscriber or customer. Simple question – did you give your personal consent for a top-secret program to turn over all customer calls to the government? Will a federal judge think that all customers did so? It would take a huge factual leap for the judge to agree that everyone gave actual consent to what has happened here.
4. Does the SCA apply to phone records? Yes. The rules apply to an “electronic communications service,” which includes both phone and e-mail communications.
5. Does it matter that the telcos took out customer names and addresses? No. Phone numbers themselves are treated as personally identifiable information in American law, such as under the federal Privacy Act. The reason is that the NSA can instantly match the phone numbers back to subscribers using widely available services. It won’t work for the telcos to say: “We temporarily took out customer names, knowing that the NSA could put them back in moments later.”
Probably most of the folks that drop by here are well aware of the reverse number look up services available for free on the internet. I f I have you're phone number, I have you're name and I have your address. If I have your name and address I can have your social security number in 24 hours or less. If I have your social security number, your phone number, your address and name I also have as much of your personal and employment history as I care to dig up, including legal filings ( stocks, divorces, bankruptcy, child custody, etc) and real estate transactions. Private information can be a domino. One piece falls and everyting else follows. The administration is doing what it usually does, states its lies wrapped in dubious pretenses, knowing that its supporters will follow along like sheep and baa at anyone that doesn't swalllow the lies and the pretenses. I think that liberals, the remaining tiny group of small government conservatives, and most libertarians have taken a long look at the utter ineptitude of the current Washington cabal over the last six years and concluded that their concerns about genuine security balanced with respect for traditional American liberties are better for America then modern conservatives. The far right's case is that if all of breaking and bending of the 4th Amendemnet, FISA, and other privacy statutes prevents another September 11th then its all worth it. Isn't that contrary to the principles on which we were founded and though we've had some bumps in the road, principles that we've tried to live up to. Let's say we all agreed to make that big trade, give us safety, liberty is just a luxury we can't afford anymore. Will we still be America ? Will we still be the land of the free and the home of the brave? Or will be be the great experiment in democracy that dies on the altar of grand illusions of absolute safety? Wikipedia defines sedition, an admittedly antiquated term, as
a deprecated term of law to refer to covert conduct such as speech and organization that is deemed by the legal authority as tending toward insurrection against the established order. Sedition often included subversion of a constitution and incitement of discontent (or resistance) to lawful authority. Sedition may include any commotion, though not aimed at direct and open violence against the laws.
Shaking off from my spirit what must have been a dream I scanned more narrowly the real aspect of the building. Its principal feature seemed to be that of an excessive antiquity. The discolouration of ages had been great. Minute fungi overspread the whole exterior, hanging in a fine tangled web-work from the eaves. Yet all this was apart from any extraordinary dilapidation. No portion of the masonry had fallen, and there appeared to be a wild inconsistency between its still perfect adaption of parts and the crumbling condition of the individual stones. In this there was much that reminded me of the spacious totality of old woodwork which has rotted for long years in some neglected vault with no disturbance from the breath of the external air. Beyond this indication of extensive decay, however, the fabric gave little token of instability. Perhaps the eye of a scrutinising observer might have discovered a barely perceptible fissure, which, extending from the roof of the building in front, made its way down the wall in a zigzag direction, until it became lost in the sullen waters of the tarn.
from The Fall of the House of Usher by Edgar Allan Poe