TOTALLY ILLEGAL

I'll be gathering other legal opinions about Fredo's NSA vacuuming operation but this is the first one I came across.

NSA Again Violates the Law

By Kate Martin
Director, Center for National Security Studies

The NSA is apparently building a database of everyone’s associations, which can then be supplemented with the vast array of other information available to the government.

It is illegal for the NSA to obtain records of phone numbers from the telephone companies unless the FISA court authorized it. The Stored Communications Act prohibits the telephone companies from disclosing such information to the government unless they receive a subpoena or a court order for the records. 18 U.S.C. 2702(c), 2703 (c).

Some background: in 1979, the Supreme Court held that no search warrant was required for a pen register recording the numbers dialed from a particular phone number because the use of such a device was not a search under the Fourth Amendment. Smith v. Maryland, 442 U.S. 735 (1979). The Court’s analysis that there was no reasonable expectation of privacy in the phone numbers dialed by an individual rested at least in part on the fact that the pen register obtained limited information. Whether that analysis would apply given new technological surveillance capabilities is not clear.

In all events, Congress thereafter acted to protect the privacy of such information. Just as in the case of the bank secrecy law protecting the privacy of bank records, after the Supreme Court held that such records were not protected by the Fourth Amendment because they were held by the bank, rather than the individual, Congress required the government to obtain a court order for pen registers and trap and trace devices, 18 USC 3121 et seq., and a court order or subpoena for records of past telephone calls.

While the law provides several means for the government to obtain records showing what phone numbers were called or dialed by a particular phone number, in every instance, either a subpoena or court order is required. It appears that the NSA obtained the records of millions of Americans without having the required court order.

If the NSA used a pen register or trap and trace device in real time, it was required to obtain an order from the FISA court, either under the specific pen register provisions, 50 USC 1841 et seq. or under the provisions for electronic surveillance generally, 50 USC 1801 et seq. Under the electronic surveillance provisions, the NSA would have to show the court that the person whose calls were being targeted was an agent of a foreign power. Under the pen register provision, the NSA would have to show the court that the information was relevant to an ongoing terrorism investigation. Despite the low standard for a pen register, it is unlikely that the FISA court would have approved wholesale pen registers on every phone in America.

If the NSA obtained stored records, rather using a real time pen register, it would have to obtain an order from the FISA court under section 215 of the Patriot Act. That section contained an even lower standard for obtaining information.