National Review Online: NSA Nonsense

By Daveed Gartenstein-Ross

The big story of the day yesterday was the news in USA Today that the NSA has secretly collected a massive database containing the phone-call records of tens of millions of Americans. Today I have a piece at National Review Online that examines the legality of this program.

As could be expected, the story’s publication was accompanied by a torrent of criticism directed at the Bush administration. A quick scan of liberal blogs shows that the program is being attacked as not only unwise, but also illegal. Yet for this to be true, an actual law must have been broken. Yet the two most likely legal authorities—the Foreign Intelligence Surveillance Act ("FISA") and the Fourth Amendment to the U.S. Constitution—do not prohibit the alleged government activity.

FISA distinguishes between "electronic surveillance," which collects the substantive content of electronic communications, and "pen registers," which collect only the addressing information of electronic communications. Although the language of FISA is somewhat convoluted, information about what calls were being made that doesn’t involve listening in on the discussions themselves should be classified as a pen register rather than electronic surveillance under the statute.

However, the definition of "pen register" in FISA shows that the statute doesn’t regulate the government with respect to the technology at issue here. FISA states that the regulations governing pen registers do not "include any device or process used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider." That is precisely what was alleged in this case: The sources who spoke to USA Today said that the three participating telecommunications companies handed over information that was collected pursuant to their regular billing procedures. FISA does not implicate such action.

Nor would the Fourth Amendment, which protects Americans from unreasonable searches and seizures, make the conduct in question illegal. The Supreme Court held in Smith v. Maryland (1978) that government collection of phone numbers called does not violate the Fourth Amendment. The Court reasoned that callers cannot have a “reasonable expectation of privacy” in the numbers they dial . . . .

Read the whole article here.

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