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Verizon Sued over NSA Phone Records Program

Two "public interest" attorneys have decided to take advantage of USA Today's national security leak and sue Verizon for turning over phone records to the NSA.

The furor over the National Security Agency's collection of Americans' phone records intensified Friday, with one telecommunications giant slapped with a $5 billion damage suit for allegedly violating privacy laws and the former head of another firm saying through a lawyer that his company refused to participate because he thought the program was illegal.

There is one issue with this lawsuit. It is perfectly legal to access people's phone records. John at Power Line identifies the law that explains the legality of the NSA program:

§ 2709. Counterintelligence access to telephone toll and transactional records


(a) Duty to provide.--A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.

Not only is it legal for the NSA to request the phone records and for the phone companies to comply, but Qwest is breaking the law by refusing to provide the NSA the phone records it requested.

John also points out that not only can the NSA request the records and the phone companies provide them, but the phone company itself can give those phone records to anyone it wants, as stated in Title 18, Chapter 121, Section 2702(c)(6) of the US Code:

Maybe I'm the only one who didn't already know this, but I was astonished to learn that there is no expectation of privacy in telephone records at all. Section 2702(c) sets out the circumstances in which a telecom provider can disclose phone records, not including the contents of communications. So this would cover the call information at issue in this program. 2702(c)(6) says that such phone records may be freely disclosed, at the company's discretion:


(6) to any person other than a governmental entity.

That's right. These supposedly top-secret telephone records can be given or, more likely, sold to any company or private citizen. So if I had enough money, I could buy the phone records of every person in the U.S., and donate them to the NSA.

These attorneys don't have a case.

Hat tip: The New Editor


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Comments (16)

"These attorneys don't have... (Below threshold)
Charles V:

"These attorneys don't have a case"

No they probably don't but thats not the point.

3 daily papers in Seattle and the Puget Sound corridor with 3 million people and all three had it plastered on the front page today.

Tens of thousands of suits many without merit filed every year but this one gets the treatment.

Merit or not, the implicati... (Below threshold)
brainy435:

Merit or not, the implication is set. Do something that asshats liberals don't like...ESPECIALLY if used for intelligence or military purposes...and they'll punish you with frivilous litigation. These are exactly the kinds of lawsuits we need to quash.

A battlefield to watch.... (Below threshold)
Lee:

A battlefield to watch.

Pete Carey, reporting at the San Jose Mercury News: (link)

It's not just phone calls, it's e-mail, too, according to a lawsuit that accuses AT&T of turning over vast amounts of domestic phone and Internet traffic to the National Security Agency.

The Electronic Frontier Foundation, a public-interest ``digital rights'' group with headquarters in San Francisco, said Thursday's report in USA Today on an alleged massive telephone-monitoring program appears to confirm allegations made in its lawsuit against AT&T. That class-action lawsuit, filed Jan. 31 in U.S. District Court in San Francisco, alleges that the phone company lets the NSA scoop up voluminous phone and e-mail traffic at AT&T telecommunications centers.

Your emails also.

The foundation's complaint alleges that AT&T provides the government with ``direct access to its databases of stored telephone and Internet records, which are updated with new information in real time or near-real time.''

According to the suit, ``large volumes of domestic and international telephone and Internet traffic'' are routed to NSA technicians. They operate in a secret room in the AT&T telecommunications center in San Francisco, according to a lawyer who represents a retired AT&T technician who has filed a sealed declaration in the lawsuit.

The government conducts ``data mining'' on the intercepted calls and e-mails, the lawsuit said.

Our right to privacy has been compromised, and it's happening in telecommunications rooms all over our country.

``They make a copy, through the use of a machine called a `splitter,' of all the fiber-optic communications being carried at any given time,'' said Klein's attorney, James J. Brosnahan. ``And that goes to a secret room. It's taking place at AT&T's Folsom Street facility in San Francisco. We also are aware that the same activity has gone on in San Jose, Los Angeles, San Diego and Seattle.''

The operation began in late 2002 and was going on when Klein retired in May 2004, said Brosnahan.

The splitter is in a room accessible to technicians employed by AT&T. As for what happens once the data passes into the secret room, ``We can all guess about what they're doing in there, but that's just a guess,'' Brosnahan said.

Imagine the number of private communications sent between family, friends, lovers, business associates and neighbors that have been recorded and archived.

It's likely that all the information collected by the NSA will be kept for years to come, said Alan Morrison, an expert on government records at Stanford University Law School. The Federal Records Act requires it, he said.

``There's no way the NSA can destroy the private, irrelevant material it scoops up without violating the Federal Records Act,'' he said.

The White House may, in the manner in which they've chosen to fight terrorism, done a great disservice to the people of the United States. In addition, AT&T and several other telecommunications companies, some of which may not have been brought into the open as of yet, will have some serious explaining to do to the American People, and to the courts of this great country.

Our right to privacy appears to have been compromised -- if so, chalk up another potential success for the terrorists. Meanhile our enemies will no doubt watch with glee while the actions of our government will, in effect, be put on trial for the world to see.

Whether the United States stands as strong and as free as we were before 9/11, will determine if our enemies win this battle, or not.

A battlefield to watch.... (Below threshold)
Lee:

A battlefield to watch.

Pete Carey, reporting at the San Jose Mercury News:

It's not just phone calls, it's e-mail, too, according to a lawsuit that accuses AT&T of turning over vast amounts of domestic phone and Internet traffic to the National Security Agency.

The Electronic Frontier Foundation, a public-interest ``digital rights'' group with headquarters in San Francisco, said Thursday's report in USA Today on an alleged massive telephone-monitoring program appears to confirm allegations made in its lawsuit against AT&T. That class-action lawsuit, filed Jan. 31 in U.S. District Court in San Francisco, alleges that the phone company lets the NSA scoop up voluminous phone and e-mail traffic at AT&T telecommunications centers.

Your emails also.

The foundation's complaint alleges that AT&T provides the government with ``direct access to its databases of stored telephone and Internet records, which are updated with new information in real time or near-real time.''

According to the suit, ``large volumes of domestic and international telephone and Internet traffic'' are routed to NSA technicians. They operate in a secret room in the AT&T telecommunications center in San Francisco, according to a lawyer who represents a retired AT&T technician who has filed a sealed declaration in the lawsuit.

The government conducts ``data mining'' on the intercepted calls and e-mails, the lawsuit said.

Our right to privacy has been compromised, and it's happening in telecommunications rooms all over our country.

``They make a copy, through the use of a machine called a `splitter,' of all the fiber-optic communications being carried at any given time,'' said Klein's attorney, James J. Brosnahan. ``And that goes to a secret room. It's taking place at AT&T's Folsom Street facility in San Francisco. We also are aware that the same activity has gone on in San Jose, Los Angeles, San Diego and Seattle.''

The operation began in late 2002 and was going on when Klein retired in May 2004, said Brosnahan.

The splitter is in a room accessible to technicians employed by AT&T. As for what happens once the data passes into the secret room, ``We can all guess about what they're doing in there, but that's just a guess,'' Brosnahan said.

Imagine the number of private communications sent between family, friends, lovers, business associates and neighbors that have been recorded and archived.

It's likely that all the information collected by the NSA will be kept for years to come, said Alan Morrison, an expert on government records at Stanford University Law School. The Federal Records Act requires it, he said.

``There's no way the NSA can destroy the private, irrelevant material it scoops up without violating the Federal Records Act,'' he said.

The White House may, in the manner in which they've chosen to fight terrorism, done a great disservice to the people of the United States. In addition, AT&T and several other telecommunications companies, some of which may not have been brought into the open as of yet, will have some serious explaining to do to the American People, and to the courts of this great country.

Our right to privacy appears to have been compromised -- if so, chalk up another potential success for the terrorists. Meanhile our enemies will no doubt watch with glee while the actions of our government will, in effect, be put on trial for the world to see.

Whether the United States stands as strong and as free as we were before 9/11, will determine if our enemies win this battle, or not.

I posted a couple more just... (Below threshold)

I posted a couple more justifications for legality over at KeepAustinCorporate.com, namely AT&T's Privacy Policy, and a 1979 Supreme Court ruling that states:

Held:

The installation and use of the pen register was not a "search" within the meaning of the Fourth Amendment, and hence no warrant was required. Pp. 739-746.

(a) Application of the Fourth Amendment depends on whether the person invoking its protection can claim a "legitimate expectation of privacy" that has been invaded by government action. This inquiry normally embraces two questions: first, whether the individual has exhibited an actual (subjective) expectation of privacy; and second, whether his expectation is one that society is prepared to recognize as "reasonable." Katz v. United States, 389 U.S. 347 . Pp. 739-741.

(b) Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate." First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information [442 U.S. 735, 736] to the police, cf. United States v. Miller, 425 U.S. 435 . Pp. 741-746.

As for the "secret room", t... (Below threshold)
Mac Lorry:

As for the "secret room", this is likely where the FBI has installed its Carnivore system or successor. Carnivore is reportedly used to intercept the contents of a target e-mail address for which the FBI has a warrant. The hardware needs to be in place in order to proved ready access once a court issues a warrant. It's a bit more involved than a wiretap, thus the need for a "secret" room where the equipment can be kept to prevent it from being tampered with. It's likely that the Carnivore equipment can be controlled remotely, so that when a warrant is issued the e-mail tap can be activated at many hubs simultaneously.

The FBI's Carnivore program has been public knowledge from before 2001, so you have to wonder what the motive of the MSM is in making a big fuss at this time.

I have to admit that even a... (Below threshold)
drjohn:

I have to admit that even as I sit here and watch Pox News Sunday, that it is at once both amusing and bemusing to realize that we know far more about this than those talking heads do.

This program is legal. There is absolutely no doubt about it.

It's time for conservative talkin heads to read these blogs, so they actually know what they need to know! ;-)

I meant Fox News Sunday.</p... (Below threshold)
drjohn:

I meant Fox News Sunday.

The typo was unintentional. Sorry.

I am a self-taught typer and it shows at times.

This program is legal.</... (Below threshold)
Lee:

This program is legal.

We don't even know what the program is at this point. Apparently email traffic is being provided to the government also. Judging from the "it's a time of war so we don't have to tell you" stance of the Justice Department so far it looks like the government will have to be compelled by the courts to disclose what is being done. To make a statement that it is legal, when we don't even know what "it" is at this point, is way premature. That's why they're on Faux News, and you aren't, Dr.

It's time for conservative talkin heads to read these blogs, so they actually know what they need to know! ;-)

What they need to know so they can lie to the American public about the scope and danger of the program? -- good advice....

The program IS legal. <br /... (Below threshold)
KobeClan:

The program IS legal.
Deal with it.
What I want to know is why the NYT isn't suing USAToday for plagerizing one of its front-page stories?

Kobe's Clam -You d... (Below threshold)
Vilify:

Kobe's Clam -

You don't know anything about the program (or that it even existed) before USA Today broke it last week. Arguing about its legality or illegality with the miniscule amount of information you have (or I or anyone else for that matter) is patently absurd. But like all pontificating bloghards, you never let lac of clarity on facts get in the way of a self-righteous rant. Nicely done.

Dear Vilify,You are ... (Below threshold)
KobeClan:

Dear Vilify,
You are an IDB (Intellectually Dishonest Buffoon).
The program was mentioned in a NYT article 6 months ago. It's obvious you didn't even bother to check, which makes you a lazyIDB. Everything known (i.e.; leaked) about the program is 100% legal. If the leakers had knowledge of ANY wrongdoing, it would have been in the headline and lead paragraph.
I will give $10,000 to your favorite charity if this program was not referenced in a previous NYT piece. You must donate the same amount after I prove you wrong.
My favorite charity is the "Foundation to Help Asshates Move out of the Parent's Basements",
So you'll be able to take advantage of your own donation.
Luv Ya, mean it.

Squawking "The program is l... (Below threshold)
pennywit:

Squawking "The program is legal. Polly wanna cracker. Awk!' doesn't make it so. And, I should point out, the converse holds true. We don't know enough about the program either way to assess its constitutionality or its legality.

Orin Kerr has been trying to figure out the legal issues, and in a way that's much more credible than the blogosphere's legal egrets have been doing.

As in, applying his knowledge of the law to his knowledge of the facts and drawing conclusions based on his analysis.

Funny how actual thought doesn't always produce clean answers, isn't it?

--|PW|--

Sorry, Pennywit,The ... (Below threshold)
KobeClan:

Sorry, Pennywit,
The program as described by the NYT and USA Today is legal.
Deal with it.
Mr. Kerr admits he doesn't know all the applicable laws. Others do (including myself). The program as described is 100% legal.
Squawking "AWK! You might be wrong! AWK! I might be right! AWK!" demonstrates neither.
Actual thought DOES provide clean answers if you know what you're talking about. Try it, it works.

Kobe:Fair enough. ... (Below threshold)
pennywit:

Kobe:

Fair enough. Is there a particular case, statute, or rule that is on-point here, WRT both telcos' potential liability and the NSA's role?

I can certainly buy the pen register analogy, and I'm well aware of the exceptions left open in Katz (which seems to get distinguished whenever a judge feels like it, anyway).

Just to see where we're starting from here, I'm relatively certain this program is constitutional, but I'm unsure of the ramifications of other law. And without Westlaw access, I'm somewhat adrift when it comes to effective legal research.

--|PW|--

Read the law again, genius.... (Below threshold)
simon:

Read the law again, genius. It says the FBI has the right, not the NSA. There is a big difference - the FBI was setup for domestic duty, NOT the NSA or CIA. But I guess it doesn't matter, does it?

As a libertarian I am getting SO fed up with all you people claiming to be "conservatives". Conservatives are AGAINST big government, AGAINST government sticking their nose in OUR BUSINESS. Bottom line - EVEN if it is legal, as a TRUE conservative, you would consider it WRONG.

I'm calling you out.




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