Phone Records, Privacy and Congress

Civil libertarians seem to be the only group truly incensed over a USA Today report that Verizon, AT&T and Bell South have complicitly handed over customer telephone records to the National Security Agency since 9-11. For those who need a reminder, that's 4.6 years.

Qwest rebuked the call for records, according to the report, and pressed the NSA for a court order. Why? There's this pesky thing called the 1986 Electronic Communications Privacy Act (passed by a Republican Senate and President). Section 2702(a)(3) specifically prohibits phone companies from doing what they did (emphasis added):

[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 (not including the contents of communications covered by paragraph (1) or (2)) to any governmental entity.

That law is the basis for a class action suit filed against Verizon in New Jersey on Friday.

The law might have originated with a review of the history of government intrusion into private lives: "From the Red Scare in the 1920s to illegal wiretaps during the Nixon era, Americans have struggled to find the right balance between individual rights and collective security."

To date, history has not found any of these programs to be, erh, appropriate.

Smith v Maryland
Congress acted long after a 1979 US Supreme Court decision in Smith v Maryland. In that case, police sought telephone records to determine a claim that a victim of a crime was being phoned by the suspect of the crime. The police used a "pen register" to capture outbound calls placed by the suspect. The Court ruled that this "search" did not require a warrant.

The only parallel between Smith v Maryland and the current NSA action is that law enforcement got phone numbers. Note that the phone company did not turn over the records in the Maryland case. Instead, police attached a device on telephone company equipment to capture the numbers dialed.

Moreover, the Maryland case was an active criminal investigation of a discrete nature (one person's phone, limited time - not years). It was not a fishing expedition, which is the only way you can characterize compiling data on millions of American citizens.

Even J. Edgar didn't dream of capturing this volume of data.

Hayden Hearing Impact
News coverage of the NSA action threatens to overshadow confirmation hearings for General Michael V. Hayden. President Bush has nominated Hayden to be the next chief of the CIA. However, Hayden is the architect of the controversial NSA wiretapping program, favored by Vice President Cheney, which the New York Times broke in late 2005:

[Hayden] aw the opportunity to use the N.S.A.'s enormous technological capabilities by loosening restrictions on the agency's operations inside the United States.

For his part, Mr. Cheney helped justify the program with an expansive theory of presidential power, which he explained to traveling reporters a few days after The Times first reported on the program in December.

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