Legal issues governing the Administration's newly disclosed surveillance program

(updated below - updated again - and again)

Orin Kerr has a post which preliminary assesses some of the legal issues involved with the domestic data gathering program, concluding (in his standard, very careful law-professor-ese) that "my very preliminary sense is that there are no Fourth Amendment issues here but a number of statutory problems under statutes such as FISA and the pen register statute." I think -- preliminarily -- that the statutory problems may be more severe than he seems to suggest. But I want to emphasize that some of these issues are complex and this discussion is intended to lay out what appear to be the issues involved, including the likely grounds for finding that what the administration did was illegal. But none of this is set in stone or definitive, yet.

A "pen register" device is a mechanism for collecting various data with regard to how a telephone is used -- it enables the user to obtain the numbers to which the person made calls and from which they received them, along with the duration of the call. The purpose of that device is to enable the Government to gather exactly the information which the Government gathered here from the telecommunications companies -- comprehensive records of who you called and who called you, and for how long you spoke. The NSA now has all of that information about, presumably, every American, because the telecommunication companies gave it to them.

The ability of the Government to use pen registers is governed by various liberalizing changes made to Section 402 of FISA, by Section 214 of the 2oo1 Patriot Act. There is no dispute that the Government is prohibited from using pen registers without FISA court approval -- both under the old FISA and the more liberalized FISA as amended by the Patriot Act. As Mary DeRosa, senior fellow in the Technology and Public Policy Program at the Center for Strategic and International Studies, explained as part of a 2001 debate over various provisions of the Patriot Act:

Section 214 [of the 2001 Patriot Act] makes similar changes to procedures for obtaining pen register or trap and trace orders under FISA. "Pen registers" and "trap and trace" devices record information about the recipient and source, respectively, of a communication. They do not intercept the contents of communications.

Previously, FISA section 402 required the government to certify to the FISC that there was reason to believe a line monitored by one of these devices would be used by an individual or a foreign power engaged in international terrorism or spying that violates U.S. criminal laws.

Everyone seems to agree that even with the changes effectuated to FISA by the Patriot Act, the Government is still required to obtain approval from the FISA court in order to use pen registers; the only change mades by the Patriot Act was to lower the showing the Government was required to make to the FISA court in order to obtain permission to use a pen register. This appears to be the view even of executive power fanatic, ex-prosecutor Andrew McCarthy:

Prior FISA law required government to certify that the monitored communications would likely be those either of an international terrorist or spy involved in a
violation of U.S. criminal law, or of an agent of a foreign power involved in terrorism or espionage.

Consequently, Section 214’s modification of prior law is both modest and eminently reasonable. Agents are still required to obtain a court order before installing a pen register. In addition, they are still required to make a solemn representation to the court; now, however, that is limited to certifying that the information sought would be relevant to an investigation to protect against international terrorism or clandestine intelligence activities.

It is true that, strictly speaking, at least based on what we know, the Government has not used pen registers here. They didn't need to. Instead of collecting this information telephone-by-telephone, they just skipped the whole pen register annoyance and had the telecommunications companies give them all of that information for every phone. Still, it is hard to imagine (at least for people acting in good faith) how it could be illegal for the Government to use a pen register device without a court order for a single phone (it appears clear that that is illegal), but it is perfectly legal for the Government to obtain pen register information for everyone's phone in the country without bothering to obtain a court order of any kind.

Independently, the type of information obtained here by the Government seems clearly to fall within FISA's definition of "electronic surveillance." Section 1801(f)(1) of FISA defines "electronic surveillance" to include "the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States. . . " In turn, Section 1801(n) defines the term "contents" as follows:

"Contents," when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication

There is, at the very least, a strong argument to make that the type of information obtained by the administration here falls squarely within the scope of FISA and thus requires warrants before it can be obtained. This would violate FISA for the same reason the NSA warrantless eavesdropping program does -- namely, it constitutes electronic surveillance on Americans and therefore is criminal unless undertaken with judicial approval.

Finally, there are several other seemingly significant legal issues governing this program, all of which are possible grounds for concluding that the President -- yet again -- violated the law when ordering surveillance on Americans, including various provisions of FISA governing the production of business documents by these companies to the Government.

Ultimately, however, the always-overarching issue is that it doesn't really much matter how these fascinating and academic statutory debates are resolved because the administration has claimed repeatedly that it has the right to violate statutes like this if its doing so is in pursuit of the national defense. As Professor Kerr put it, with great understatement:

Of course, all of the statutory questions are subject to the possible argument that Article II trumps those statutes. As I have mentioned before, I don't see the support for the strong Article II argument in existing caselaw, but there is a good chance that the Administration's legal argument in support of the new law will rely on it.

The Leader ordered this collection of sweeping data on the communications activities of Americans because The Threat of Terrorism required it. Therefore, even if multiple statutes make doing that a criminal offense, The President has the power to do it anyway. That, of course, is the Administration's view of the world. And that is the epic constitutional crisis we have in our country.

Finally, I would be remiss if I failed to point out this passage written by Andrew McCarthy from the above-linked debate on The Patriot Act and FISA, something McCarthy wrote before he knew the President had ordered eavesdropping on Americans without court approval:

Why such extensive access with virtually no court supervision? Because the items at issue here are primarily activity records voluntarily left in the hands of third parties. As the Supreme Court has long held, such items simply do not involve legitimate expectations of privacy. See, e.g., Smith v. Maryland, 442 U.S. 735, 744 (1979).

This renders them categorically different from the private information at issue in the context of search warrants or eavesdropping, in which the court is properly imposed as a bulwark, requiring a demonstration of cause before government may pierce established constitutional safeguards.

McCarthy wrote this before he knew that his Leader had ordered the NSA to eavesdrop on Americans without having courts "imposed as a bulwark." Before he knew the President had ordered this, McCarthy said he believed that it is necessary that the government not be permitted to eavesdrop on Americans without judicial approval because such oversight was necessary to protect "established constitutional safeguards." But once he found out that the President ordered eavesdropping without that judicial "bulwark," he changed his mind completely. What he previously said was necessary and proper -- judicial oversight for eavesdropping -- suddenly became totally superfluous and unnecessary, as he became one of the most vocal defenders of the administration's warrantless eavesdropping programs.

People who fundamentally change their views on issues this significant all in order to defend a Leader's conduct can be called many things. None of them is flattering.

UPDATE: Both Anonymous Liberal and Marty Lederman suggest that the telecommunications companies perhaps violated Section 222 of the Communications Act, which "requires telecommunications carriers to protect the confidentiality of customer proprietary information ("CPNI"), such as the telephone numbers called by customers and the length oftime of the calls. . . ." By e-mail, Georgia10 of Daily Kos argues that the companies seem clearly to have violated 18 U.S.C. section 2702, which also bans the disclosure of such information without a court order.

UPDATE II: I will be on Christopher Lydon's radio show Open Source tonight at 7:15 pm EST to discuss this newly disclosed surveillance program. Tomorrow morning, at 7:18 a.m. EST, I will be on The Bill Press Show to do the same. And tomorrow night at 6:30 p.m. EST, I will be on Sirius' The Young Turks. All three of those sites have a live audio stream.

Finally, I have a piece today on Alternet regarding the growing influence of the blogosphere, and they have included an excerpt from my book from the chapter which discusses the Bush administration's use of fear.

UPDATE III: I am happy to report that Working Assets, the telecommunications company whose publishing arm is the publisher of my book, was the only telecom company to sign onto the ACLU's lawsuit seeking an injunction against the Bush administration's warrantless eavesdropping program.

UPDATE IV: A fluid and well-informed discussion of the legal issues governing this data-collection program is provided here by Kate Martin, the Director of the Center for Strategic Studies, at the ACS Blog.