May 12, 2006

NSA Hysteria

NRO makes short shrift of claims the NSA's collection of phone records from telecoms violates either FISA or the Fourth Amendment.

Posted by LMC at May 12, 2006 08:37 AM | TrackBack

I'm no lawyer, but it could be a violation of the Stored Communications Act which could mean a $1K fine per person.

Any thoughts LMC or Rob?

Oh and for the moonbat rant: One more step towards a government that is looking more and more like China...

Posted by: LB Buddy at May 12, 2006 09:49 AM

Lb Buddy,

The collection and analysis of domestic telephone telephone records and international telephone records has been going on for at least the last twenty years, and very likely much longer. The analysis is done by the telephone companies themselves to monitor and validate their business models, revenue billing production control,
network load balancing and a host of other activities. It was also used to settle review and settle charges between local and long distance carriers for access charges (back when there was a division between local and long distance carriers).

I worked as a systems analyst at a major telecom from the late '80's to mid '90s and part of my job was to analyze calling patterns to ensure we didn't drop any billable calls. The principle areas metrics were duration (minutes), time of day, domestic / international (on net and off net determined by terminating country) dial-1 vs calling card, Operator Services, etc. BTW: Interstate vs Intrastate calls were determined for billing purposes by originating and terminating phone numbers.

Call volume, duration and revenue billed were expected to move together, and when they didn't move as expected, execs want to know why (rate change, seasonal flucuations, etc).

Fraud detection systems monitor Calling Cards to identify unusual calling patterns, ususally detecting them before the owners knows it was compromised (my calling card number was filched at Washington National in 1995, and twenty calls were placed to Pakistan in half an hour - the carrier suspended the card's access before I knew there was a problem).

Most telecom companies are required to retain call records for at least 90 days for regulatory purposes. So, the nation at war, and the phone companys collecting, and managing this information for billing, network management, monitoring, and planning, fraud detection, account management, not to mention for govenment requirements anyway, I don't see the problem with the data being reviewed by NSA (its already being looked at by a lot of other people).

Posted by: KMR at May 12, 2006 10:49 AM

Leave lawyering to the lawyers. No violation under these facts. I might add the statute you reference also has a section which requires the turnover of toll and transactional records upon receipt of a request from the FBI. The FBI is further authorized to disseminate such information to "any agency of the United States". Section 2709(c) further prohibits the service provider from disclosing that the FBI sought the information.

Posted by: LMC at May 12, 2006 11:04 AM

I'm also no lawyer, but have done research on just this issue to satisfy my own curiosity. SCOTUS has ruled in the past that because this data is used in all of the ways KMR mentions, there can be no reasonable expectation of it being private, and thus, no protection under the Fourth.

Posted by: Brian B at May 12, 2006 11:50 AM

Which is exactly what NRO says, now that I've read the link.

Posted by: Brian B at May 12, 2006 11:51 AM


This is about outside access to the companies data, not internal use. It would be unreasonable to expect that a company can't look at its own records.


The legality was dicey enough that Qwest refused to release their records. So I don't know if it is a clear cut case. Did the FBI request the data and deliver to the NSA? Or did the NSA request it directly? If so, can they legally?


Not questioning 4th amendment issues, less reactionary analysis on the left also discounts this angle like here.
That post also includes an analysis of the SCA that is maybe yes, maybe no, probably the same conclusions that the Qwest lawyers came to.

The big issue (to me) is that if someone can make a compelling argument for the SCA act applying in this case, the telecoms are exposed to billions of dollars in fines.

Posted by: LB Buddy at May 12, 2006 12:22 PM

LB Buddy,

Telecom charges are taxed in mind numbing permutations including service type, metered usage, call type, surcharges, discounts, fixed account charges, etc. for sales taxes, utility taxes, gross receipts taxes, etc. All levels of government get a piece of the action: local, state and federal. And not infrequently, tax receipts will be audited by the governing body (state corporation commissions, FCC, etc), to ensure accurate billing and payment.

It is a pre-9/11 mindset to think that that the Idaho state corporation commission can look at the data for tax purposes, but NSA can't look at for intelligence.

Posted by: KMR at May 12, 2006 12:52 PM

This is obviously a Rovian drag designed to get the base fired up and thinking about something other than immigration. I mean, dredge up a meritless story that ran six months ago, get Useless Today to bite on it and Bingo! you've got people on the Left saying things like, well, "One more step towards a government that is looking more and more like China..."


Posted by: Robbo the LB at May 12, 2006 01:48 PM

The telecoms are publicly traded companies with high priced legal talent in their in-house general counsel offices, not to mention even higher priced talent advising them as outside counsel. It is pretty safe to assume that the telecoms ran this through their lawyers when the requests came in their attorneys signed off on it before the data was provided.

Posted by: LMC at May 12, 2006 01:55 PM

They have Harvard grads - I've met them..

Posted by: KMR at May 12, 2006 02:15 PM

I used to be medium-priced outside telecom counsel for some of these guys, albeit not on this particular topic. Buhlieve me, these issues get put through the legal wringer quite thoroughly.

Posted by: Robbo the LB at May 12, 2006 03:06 PM


The other brilliant part of Rove's plan is that he is floating the "National Guard on the Border" trial balloon, which will effectively quiet the Bill O'Reilly/Michelle Malkin crowd. Sounds like the McChimphitler administration is getting ready for battle, baby!

Posted by: The Colossus at May 12, 2006 03:21 PM