The
NSA call database is a
databaseA database is an integrated collection of logically related records or files consolidated into a common pool that provides data for one or more multiple uses....
created by the
United StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
National Security AgencyThe National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States government, administered as part of the United States Department of Defense. Created on November 4, 1952 by President Harry S...
(NSA) that contains hundreds of billions of records of
telephoneThe telephone is a telecommunications device that transmits and receives sound, most commonly the human voice. It is one of the most common household appliances in the developed world, and has long been considered indispensable to business, industry and government...
calls made by U.S. citizens from the four largest telephone carriers in the United States:
AT&TAT&T Inc. is the largest provider of local, long distance telephone services in the United States, and also serves digital subscriber line Internet access. AT&T is the second largest provider of wireless service in the United States, with over 77 million wireless customers, and more than 150...
, SBC,
BellSouthBellSouth Corporation is an American telecommunications holding company based in Atlanta, Georgia. BellSouth was one of the seven original Regional Bell Operating Companies after the U.S...
(all three now being called AT&T since AT&T bought BellSouth and SBC purchased AT&T but kept the AT&T name), and Verizon.
The existence of this database and the NSA program that compiled it was unknown to the general public until
USA TodayUSA Today is a national American daily newspaper published by the Gannett Company. It was founded by Al Neuharth...
broke the story on May 10, 2006. It is estimated that the database contains over 1.9 trillion
call-detail recordA Call Detail Record is the computer record produced by a telephone exchange containing details of a call that passed through it. It is the automated equivalent of the paper toll tickets that were written and timed by operators for long distance calls in a manual telephone exchange.-Contents:A...
s. According to Bloomberg News, the effort began approximately seven months before the
September 11, 2001 attacksThe September 11 attacks were a series of coordinated suicide attacks by Al-Qaeda upon the United States on September 11, 2001. On that morning, 19 Al-Qaeda terrorists hijacked four commercial passenger jet airliners...
.
The records include detailed call information (caller, receiver, date/time of call, length of call, etc) for use in
traffic analysisTraffic analysis is the process of intercepting and examining messages in order to deduce information from patterns in communication. It can be performed even when the messages are encrypted and cannot be decrypted. In general, the greater the number of messages observed, or even intercepted and...
and social network analysis, but do not include audio information or transcripts of the content of the phone calls.
The database's existence has prompted fierce objections from those who view it as a warrantless or illegal search and a violation of the
pen registerA pen register is an electronic device that records all numbers dialed from a particular telephone line. The term has come to include any device or program that performs similar functions to an original pen register, including programs monitoring Internet communications.The USA statutes governing...
provisions of the Foreign Intelligence Surveillance Act and (in some cases) the
Fourth Amendment of the United States ConstitutionThe Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures. It was ratified as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution...
.
The
George W. Bush administrationThe Presidency of George W. Bush began on his inauguration on January 20, 2001 as the 43rd President of the United States of America. The oldest son of former president George H. W. Bush, George W...
has neither confirmed nor denied the existence of the domestic call record database. This contrasts with a related NSA controversy concerning
warrantless surveillance of selected telephone callsThe NSA warrantless surveillance controversy concerns surveillance of persons within the United States incident to the collection of foreign intelligence by the U.S. National Security Agency as part of the war on terror...
; in that case they did confirm the existence of the program of debated legality. The program's code name is
Stellar windStellar Wind is the open secret code name for certain information collection activities performed by the United States' National Security Agency....
.
Similar programmens exist or are planned in other countries, including Sweden (
Titan traffic databaseThe Titan traffic database is a database established by the Swedish National Defence Radio Establishment where call detail records of telephony and internet traffic and transaction data concerning international telecommonications are stored...
) and Great Britain (
Interception Modernisation ProgrammeThe Interception Modernisation Programme is a UK government initiative to maintain the government's capabilities for intercepting and storing communications data. It has been widely reported that the IMP's eventual goal is to store details of all UK communications data in a central database...
)
Law suit
The
Electronic Frontier FoundationThe Electronic Frontier Foundation is an international non-profit advocacy and legal organization based in the United States with the stated purpose of being dedicated to preserving the right to freedom of speech, such as protected by the First Amendment to the United States Constitution, in the...
filed a related suit against AT&T on 31 January 2006, alleging that the firm had given NSA access to its database, a charge reiterated in the USA Today article.
Verizon and BellSouth have both claimed they were never contacted by the NSA, nor did they provide any information to the agency, though US codes of law permit companies to lie about their activities when the President believes that telling the truth would compromise national security.
Internet monitoring
On May 22, 2006, it was revealed by investigative reporter
Seymour HershSeymour Myron Hersh is a United States Pulitzer Prize winning investigative journalist and author based in Washington, D.C...
and
Wired magazineWired is a full-color monthly American magazine and on-line periodical, published since March 1993, that reports on how technology affects culture, the economy, and politics...
that the program involved the NSA setting up
splittersA beam splitter is an optical device that splits a beam of light in two. It is the crucial part of most interferometers.In its most common form, a cube, it is made from two triangular glass prisms which are glued together at their base using Canada balsam...
to the routing cores of many telecoms companies and to major Internet traffic hubs. These provided a direct connection via an alleged
"black room"Cabinet noir was the name given in France to the office where the letters of suspected persons were opened and read by public officials before being forwarded to their destination...
known as
Room 641ARoom 641A is an alleged intercept facility operated by AT&T for the U.S. National Security Agency, beginning in 2003. Room 641A is located in the SBC Communications building at 611 Folsom Street, San Francisco, three floors of which were occupied by AT&T before SBC purchased AT&T...
. This room allows most U.S. telecoms communications and Internet traffic to be redirected to the NSA. The NSA used them to eavesdrop and order police investigations of tens of thousands of ordinary Americans without judicial warrants.
According to a security consultant who worked on the program, "What the companies are doing is worse than turning over records ... they’re providing total access to all the data", and a former senior intelligence official said, "This is not about getting a cardboard box of monthly phone bills in alphabetical order ... the N.S.A. is getting real-time actionable intelligence."
On June 30, 2006 USA Today printed a partial retraction about its controversial article the prior month saying: "... USA TODAY also spoke again with the sources who had originally provided information about the scope and contents of the domestic calls database. All said the published report accurately reflected their knowledge and understanding of the NSA program, but none could document a contractual relationship between BellSouth or Verizon and the NSA, or that the companies turned over bulk calling records to the NSA. Based on its reporting after the May 11 article, USA TODAY has now concluded that while the NSA has built a massive domestic calls record database involving the domestic call records of telecommunications companies, the newspaper cannot confirm that BellSouth or Verizon contracted with the NSA to provide bulk calling records to that database ..."
Denials
Five days after the story appeared, BellSouth officials said they could not find evidence of having handed over such records. "Based on our review to date, we have confirmed no such contract exists and we have not provided bulk customer calling records to the NSA," the officials said. USA Today replied that BellSouth officials had not denied the allegation when contacted the day before the story was published . Verizon has also asserted that it has not turned over such records.
Companies are permitted by US securities law (15 U.S.C. 78m(b)(3)(A)) to refrain from properly accounting for their use of assets in matters involving national security, when properly authorized by an agency or department head acting under authorization by the President. This legalese essentially means that companies can falsify their accounting reports and lie about their activities when the President decides that it is in the interests of national security to do so.
President BushGeorge Walker Bush was the 43rd President of the United States from 2001 to 2009 and the 46th Governor of Texas from 1995 to 2000....
issued a
presidential memorandumA presidential memorandum is a type of presidential order issued by the President of the United States to the executive branch of the United States government. Presidential memoranda do not have an established process for issuance or publication...
on May 5, 2006 delegating authority to make such a designation to Director of National Intelligence
John NegroponteHon. John Dimitri Negroponte is an American diplomat of Greek descent. He is currently a research fellow and lecturer in international affairs at Yale University's MacMillan Center...
, just as the NSA call database scandal appeared in the media.
Qwest Communications
The
USA Today report indicated that
QwestQwest Communications International, Inc. is a large telecommunications carrier. Qwest provides local service in 14 western U.S...
's then CEO,
Joseph NacchioJoseph P. Nacchio , was chairman of the board and chief executive officer of Qwest Communications International from 1997 to 2002. He was convicted of 19 counts of insider trading in Qwest stock on April 19, 2007. On July 27 2007, he was sentenced to six years in federal prison...
, doubted the NSA's assertion that
warrantsMost often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which commands an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...
were unnecessary. In negotiations, the NSA pressured the company to turn over the records. Qwest attorneys asked the NSA to obtain approval from the
United States Foreign Intelligence Surveillance CourtThe United States Foreign Intelligence Surveillance Court is a U.S. federal court authorized under . It was established by the Foreign Intelligence Surveillance Act of 1978 . The FISC oversees requests for surveillance warrants against suspected foreign intelligence agents inside the United States...
.Also hinting it. Aside from the chief justice, FISC was unaware of the NSA's warrantless domestic activities. When the NSA indicated they would not seek this approval, Qwest's new CEO
Richard NotebaertRichard Notebaert was the CEO of Qwest Communications International, Inc. from 2002 until August 9, 2007. He was CEO of Ameritech before it merged with SBC.. He was succeeded by Ed Mueller on August 10, 2007...
declined NSA's request for access. Later,
T-MobileT-Mobile is a subsidiary of Deutsche Telekom and belongs to the FreeMove Business alliance.T-Mobile is a group of mobile phone corporate subsidiaries that operate GSM and UMTS networks in Europe and the United States. The T stands for Telekom. T-Mobile also has financial stakes in mobile operators...
explicitly stated they do not participate in warrantless surveillance.
Contents of the database
According to the article, the database is
"the largest database ever assembled in the world", and contains call-detail records (CDRs) for all phone calls, domestic and international. A call-detail record consists of the phone numbers of the callers and recipients along with time and duration of the call. While the database does not contain specific names or addresses, that information is widely available from non-classified sources.
According to the research group TeleGeography, AT&T (including the former SBC), Verizon, and BellSouth connected nearly 500 billion telephone calls in 2005 and nearly 2 trillion calls since late 2001. It is reported that all four companies were paid to provide the information to the NSA.
Uses of the database
Although such a database of phone records would not be useful on its own as a tool for
national securityNational security is the requirement to maintain the survival of the nation-state through the use of economic, military and political power and the exercise of diplomacy.Measures taken to ensure national security include:...
, it could be used as an element of broader national security analytical efforts and
data miningData mining is the process of extracting patterns from data. As more data are gathered, with the amount of data doubling every three years, data mining is becoming an increasingly important tool to transform these data into information...
. These efforts could involve analysts using the data to connect phone numbers with names and links to persons of interest. Such efforts have been the focus of the NSA's recent attempts to acquire key technologies from high tech firms in
Silicon ValleySilicon Valley is the southern part of the San Francisco Bay Area in Northern California, United States. The term originally referred to the region's large number of silicon chip innovators and manufacturers, but eventually came to refer to all the high-tech businesses in the area; it is now...
and elsewhere.
Link analysisNetwork analysis can refer to:* Analysis of general networks: see network theory.* Electrical network analysis see Network analysis .* Social network analysis....
software, such as Link Explorer or the Analyst's Notebook, is used by law enforcement to organize and view links that are demonstrated through such information as telephone and financial records, which are imported into the program from other sources.
Neural network softwareNeural network software is used to simulate, research, develop and apply artificial neural networks, biological neural networks and in some cases a wider array of adaptive systems.-Simulators:...
is used to detect patterns, classify and cluster data as well as forecast future events.
Using relational mathematics it is possible to find out if someone changes their telephone number by analyzing and comparing calling patterns.
ThinThreadThinThread is the name of a project that the United States National Security Agency engaged in during the 1990s, according to a May 17, 2006 article in the Baltimore Sun...
, a system which pre-dated this database, but was discarded for the
Trailblazer ProjectTrailblazer is a NSA programme intended to analyze data carried on computer networks. It can be used to track communication methods such as cell phones and e-mail. According to science news site PhysOrg.com, Trailblazer was a continuation of the earlier ThinThread program...
, may have introduced some of the technology which is used to analyze the data
http://www.baltimoresun.com/news/custom/attack/bal-te.nsa18may18,0,4406058.story?coll=bal-home-headlines. Where ThinThread encrypted privacy data, however, no such measures have been reported with respect to the current system.
Government and public response
- In response, the Bush administration defended its activities, while neither specifically confirming or denying the existence of the potentially illegal program. According to the Deputy White House Press Secretary
The White House Press Secretary is a senior White House official whose primary responsibility is to act as spokesperson for the government administration. Since January 20, 2009, Robert Gibbs is the Press Secretary to U.S...
, "The intelligence activities undertaken by the United States government are lawful, necessary and required to protect Americans from terrorist attacks."
- Senator
The United States Senate is the upper house of the bicameral United States Congress, the lower house being the House of Representatives. The composition and powers of the Senate and the House are established in Article One of the U.S. Constitution . Each U.S state is represented by two senators,...
Arlen SpecterArlen Specter is the senior United States Senator from Pennsylvania and a member of the Democratic Party. Specter was a member of the Democratic Party until 1965, when he enlisted as a Republican in order to challenge the Democratic district attorney of Philadelphia. Elected to the Senate in 1980,...
has said that he will hold hearings with the telecommunications CEOs involved. The Senate Intelligence Committee is expected to question Air Force General Michael HaydenMichael Vincent Hayden, is a retired United States Air Force four-star general and former Director of the National Security Agency and Director of the Central Intelligence Agency...
about the data-gathering during his confirmation hearings as Director of the Central Intelligence AgencyDirector of the Central Intelligence Agency serves as the head of the Central Intelligence Agency, which is part of the United States Intelligence Community. The Director reports to the Director of National Intelligence . The Director is assisted by the Deputy Director of the Central...
. Hayden was in charge of the NSA from 1999 through 2005.
- Commenting on the apparent incompatibility of the NSA call database with previous assurances by President Bush, former Republican
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the Grand Old Party or the GOP, despite being the younger of the two major parties. In the U.S...
Speaker of the HouseThe United States House of Representatives, commonly referred to as the "House," is the lower house of the bicameral United States Congress, the upper house being the United States Senate. The composition and powers of the House and the Senate are established in Article One of the Constitution...
Newt GingrichNewton Leroy "Newt" Gingrich is an American politician who served as the Speaker of the United States House of Representatives from 1995 to 1999. In 1995, Time magazine selected him as the Person of the Year for his role in leading the Republican Revolution in the House, ending 40 years of the...
told Fox News, "I’m not going to defend the indefensible. The Bush administration has an obligation to level with the American people... I don’t think the way they’ve handled this can be defended by reasonable people."
- Later on Meet the Press
Meet the Press is a weekly American television news/interview program produced by NBC. It is the longest-running television show in worldwide broadcasting history, having made its television debut on November 6, 1947...
, Gingrich stated that "everything that has been done is totally legal," and he said the NSA program was defending the indefensible, "because they refuse to come out front and talk about it."
- Republican Senator Lindsey Graham
Lindsey Olin Graham is an American politician from South Carolina. A member of the Republican Party, he is currently the senior United States Senator from that state. He serves on the Armed Services and Judiciary Committees....
told Fox News, "The idea of collecting millions or thousands of phone numbers, how does that fit into following the enemy?"http://www.sptimes.com/2006/05/12/Worldandnation/NSA_call_tracking_sta.shtml
- House Republican Caucus chairwoman Deborah Pryce
Deborah D. Pryce is an American politician from Ohio and former Republican member of the United States House of Representatives for Ohio's 15th congressional district, which includes the western half of Columbus and the surrounding suburbs.She is divorced from Randy Walker and now lives in Upper...
said, "While I support aggressively tracking al-QaidaAl-Qaeda , alternatively spelled al-Qaida and sometimes al-Qa'ida, is an Islamist group founded sometime between August 1988 and late 1989 and early 1990...
, the administration needs to answer some tough questions about the protection of our civil liberties."
- Former Republican House Majority Leader John Boehner
John Andrew Boehner is a conservative Republican American politician who is currently serving as the House Minority Leader in the 111th Congress. He serves as a U.S...
said, "I am concerned about what I read with regard to NSA databases of phone calls." http://www.pbs.org/newshour/bb/law/jan-june06/nsa_05-11.html
- Democratic
The Democratic Party is one of the two major contemporary political parties in the United States, along with the Republican Party. It is the oldest political party in continuous operation in the United States and it is one of the oldest parties in the world. In the U.S...
senator Patrick LeahyPatrick Joseph Leahy is the senior United States Senator from Vermont. He is a member of the Democratic Party, the first and only Democratic United States Senator in Vermont's history, the current chairman of the Senate Judiciary Committee, and has the distinction of being the first and only...
, ranking member of the Senate Judiciary CommitteeThe United States Senate Committee on the Judiciary is a standing committee of the United States Senate, the upper house of the United States Congress...
, said "Are you telling me that tens of millions of AmericansAs of October 20th 2009, the United States has a total resident population of 308 million. It is a very urbanized nation, with 81% of the population residing in cities and suburbs as of mid-2005 . The mean population center of the United States has consistently shifted westward and southward, with...
are involved with al-Qaida? These are tens of millions of Americans who are not suspected of anything. ... Where does it stop?"
- On May 15, 2006 FCC
The Federal Communications Commission is an independent agency of the United States government, created, directed, and empowered by Congressional statute , and with the majority of its commissioners appointed by the current President...
Commissioner Copps called for the FCC to open an inquiry into the lawfulness of the disclosure of America's phone records.
- In May, 2006 Pat Robertson
Marion Gordon "Pat" Robertson is a televangelist from the United States. He is the founder of numerous organizations and corporations, including the American Center for Law and Justice , the Christian Broadcasting Network , the Christian Coalition, Flying Hospital, International Family...
called the NSA wire-tapping a "tool of oppression."
- In May, 2006 former majority leader Trent Lott
Chester Trent Lott Sr. is a former United States Senator from Mississippi. He has served in numerous leadership positions in both the House of Representatives and the Senate, including House Minority Whip, Senate Majority Leader, Senate Minority Leader, and Senate Minority Whip...
stated "What are people worried about? What is the problem? Are you doing something you're not supposed to?"
- On May 16, 2006 both Verizon and BellSouth stated not only did they not hand over records, but that they were never contacted by the NSA in the first place.
- On June 30, 2006 Bloomberg reported the NSA "asked AT&T Inc. to help it set up a domestic call monitoring site seven months before the Sept. 11, 2001 attacks," citing court papers filed June 23, 2006 by lawyers in McMurray v. Verizon Communications Inc., 06cv3650, in the Southern District of New York.
Polls
- In a new Newsweek
Newsweek is an American weekly newsmagazine published in New York City. It is distributed throughout the United States and internationally. It is the second largest news weekly magazine in the U.S., having trailed Time in circulation and advertising revenue for most of its existence...
poll of 1007 people conducted between May 11 and May 12, 2006, 53% of Americans said that "the NSA's surveillance program goes too far in invading privacy " and 57% said that in light of the NSA data-mining news and other executive actions the Bush-Cheney Administration has “gone too far in expanding presidential power" while 41% see it as a tool to "combat terrorism" and 35% think the Administration’s actions were appropriate.
- According to a Washington Post telephone poll of 502 people, conducted on May 11, 63% of the American public supports the program, 35% do not; 66% were not bothered by the idea of the NSA having a record of their calls, while 34% were; 56% however thought it was right for the knowledge of the program to be released while 42% thought it was not. These results were later contradicted by further polls on the subject, specifically a USA Today/Gallup poll
The Gallup Poll is the division of Gallup that regularly conducts public opinion polls in more than 140 countries around the world. Gallup Polls are often referenced in the mass media as a reliable and objective measure of public opinion...
showing 51% opposition and 43% support for the program.
Political action
The
Senate Armed Services CommitteeThe Committee on Armed Services is a committee of the United States Senate empowered with legislative oversight of the nation's military, including the Department of Defense, military research and development, nuclear energy , benefits for members of the military, the Selective Service System and...
was scheduled to hold hearings with NSA
whistle-blowerA whistleblower is a person who alleges concealed misconduct on the part of an organization or body of people, usually from within that same organization. This misconduct may be classified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest,...
Russell Tice the week following the revelation of the NSA call database. Tice indicated that his testimony would reveal information on additional illegal activity related to the NSA call database that has not yet been made public, and that even a number of NSA employees believe what they are doing is illegal. Tice also told the
National JournalNational Journal is an American weekly magazine that reports on the current political environment and emerging political and policy trends. National Journal was first published in 1969 and is now part of National Journal Group, a division of Atlantic Media Company. It was purchased by David G....
that he "will not confirm or deny" if his testimony will include information on
spy satelliteA spy satellite is an Earth observation satellite or communications satellite deployed for military or intelligence applications....
s being used to spy on American citizens from space.
However, these hearings did not occur and the reason why is unknown.
Claims
New Jersey
Spurred by the public disclosure of the NSA call database, a lawsuit was filed against Verizon on May 12, 2006 at the Federal District Court in Manhattan by Princeton, N.J.-based attorneys Carl Mayer and Bruce Afran. The lawsuit seeks $1,000 for each violation of the
Telecommunications Act of 1996The Telecommunications Act of 1996 was the first major overhaul of United States telecommunications law in nearly 62 years, amending the Communications Act of 1934.-Prior regime:...
, and would total approximately $5 billion if the court certifies the suit as a class-action lawsuit.
Oregon
On May 12, 2006, an Oregon man filed a lawsuit against Verizon Northwest for $1 billion.
Maine
On May 13, 2006, a complaint in Maine was filed by a group of 21 Maine residents who asked the Public Utilities Commission (PUC) to demand answers from Verizon about whether it provided telephone records and information to the federal government without customers' knowledge or consent. Maine law requires the PUC to investigate complaints against a utility if a petition involves at least 10 of the utility's customers.
California (E.F.F.)
Shortly after the NSA call database story surfaced, a San Francisco lawsuit,
Hepting v. AT&THepting v. AT&T is a United States class action lawsuit filed in January 2006 by the Electronic Frontier Foundation against the telecommunications company AT&T, in which the EFF alleges that AT&T permitted and assisted the National Security Agency in unlawfully monitoring the communications of...
, was filed by the
Electronic Frontier FoundationThe Electronic Frontier Foundation is an international non-profit advocacy and legal organization based in the United States with the stated purpose of being dedicated to preserving the right to freedom of speech, such as protected by the First Amendment to the United States Constitution, in the...
.
Justice Department response
The Los Angeles Times reported on May 14, 2006, that the U.S. Justice Department called for an end to an eavesdropping lawsuit against AT&T Corp., citing possible damage from the litigation to national security.
The US government indicated in an April 28
Statement of Interest in the AT&T case, that it intends to invoke the
State Secrets PrivilegeThe State Secrets Privilege is an evidentiary rule created by United States legal precedent. The court is asked to exclude evidence from a legal case based solely on an affidavit submitted by the government stating court proceedings might disclose sensitive information which might endanger national...
in a bid to dismiss the action.
Legal status
The NSA call database was not approved by the Foreign Intelligence Surveillance Court (FISC) as required by the Foreign Intelligence Surveillance Act (FISA). The FISC was established in 1978 to secretly authorize access to call-identifying information and interception of communications of suspected foreign agents on U.S. soil. Stanford Law School's
Chip PittsChip Pitts is the Board President of the Bill of Rights Defense Committee and former Chairman of Amnesty International USA. -Career:Pitts is an international attorney, human rights activist, and law educator who lectures on human rights and international business at law schools and universities...
has a good overview of the relevant legal concerns in The Washington Spectator.
Separate from the question of whether the database is illegal under FISA, one may ask whether the call detail records are covered by the privacy protection of the
Fourth AmendmentThe Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures. It was ratified as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution...
of the U.S. Constitution. This is unclear. As the U.S. has no explicit constitutional guarantee on the
secrecy of correspondenceThe secrecy of correspondence , or literally translated as secrecy of letters, is a fundamental legal principle enshrined in the constitutions of several European countries. It guarantees that the content of sealed letters is never revealed and letters in transit are not opened by government...
, any protection on communications is an extension by litigation of the privacy provided to "houses and papers".
This again is dependent on the flexuous requirement of a
reasonable expectation of privacy.
The most relevant U.S. Supreme Court case is
Smith v. MarylandSmith v. Maryland, 442 U.S. 735 , was a case in which the Supreme Court of the United States held that 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....
.
In that case, the Court addressed
pen registerA pen register is an electronic device that records all numbers dialed from a particular telephone line. The term has come to include any device or program that performs similar functions to an original pen register, including programs monitoring Internet communications.The USA statutes governing...
s, which are mechanical devices that record the numbers dialed on a telephone; a pen register does not record call contents. The Court ruled that pen registers are not covered by the
Fourth AmendmentThe Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures. It was ratified as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution...
: "The installation and use of a pen register, [...] was not a 'search,' and no warrant was required." More generally, "This Court consistently has held that a person has no legitimate expectation of privacy in information he [...] voluntarily turns over to third parties."
The data collecting activity may however be illegal under other telecommunications privacy laws.
The Stored Communications Act
The 1986
Stored Communications ActThe Stored Communications Act was passed by the United States Congress in 1986 as part of the Electronic Communications Privacy Act, and is codified at 18 U.S.C. §§ 2701 to 2712...
(18 U.S.C. § 2701) forbids turnover of information to the government without a warrant or court order, the law gives consumers the right to sue for violations of the act.
- "A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication...only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure"
However, the Stored Communications Act also authorizes phone providers to conduct electronic surveillance if the Attorney General of the United States certifies that a court order or warrant is not required and that the surveillance is required:
- [Telephone providers] are authorized to...intercept...communications or to conduct electronic surveillance...if such provider...has been provided with a certification in writing by...the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required.
The Act provides for special penalties for violators when "the offense is committed...in violation of the Constitution or laws of the United States or any State."
Finally, the act allows any customer whose telephone company provided this information to sue that company in civil court for (a) actual damages to the consumer, (b) any profits by the telephone company, (c) punitive damages, and (d) attorney fees. The minimum amount a successful customer will recover under (a) and (b) is $1,000:
- "The court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $1,000. If the violation is willful or intentional, the court may assess punitive damages. In the case of a successful action to enforce liability under this section, the court may assess the costs of the action, together with reasonable attorney fees determined by the court." (18 U.S.C. § 2707(c) damages)
Communications Assistance for Law Enforcement Act
President Clinton signed into law the
Communications Assistance for Law Enforcement ActThe Communications Assistance for Law Enforcement Act is a United States wiretapping law passed in 1994, during the presidency of Bill Clinton...
of 1994, after it was passed in both the House and Senate by a voice vote. That law is an act "to make clear a telecommunications carrier's duty to cooperate in the interception of communications for law enforcement purposes, and for other purposes." The act states that a court order isn't the only lawful way of obtaining call information, saying, "A telecommunications carrier shall ensure that any interception of communications or access to call-identifying information effected within its switching premises can be activated only in accordance with a court order or other lawful authorization."
Historical background
The
FISCUnder the Merovingians and Carolingians, the fisc applied to the royal demesne which paid taxes, entirely in kind, from which the royal household was meant to be supported, though it rarely was...
was inspired by the recommendations of the
Church CommitteeThe Church Committee is the common term referring to the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, a U.S. Senate committee chaired by Senator Frank Church in 1975. A precursor to the U.S...
, which investigated a wide range of intelligence and counter-intelligence incidents and programs, including some U.S. Army programs and the FBI program
COINTELPROCOINTELPRO was a series of covert, and often illegal, projects conducted by the United States Federal Bureau of Investigation aimed at investigating and disrupting dissident political organizations within the United States...
.
In 1971, the US media reported that COINTELPRO targeted thousands of Americans during the 1960s, after several stolen FBI dossiers were passed to news agencies. The
Church CommitteeThe Church Committee is the common term referring to the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, a U.S. Senate committee chaired by Senator Frank Church in 1975. A precursor to the U.S...
Senate final report, which investigated COINTELPRO declared that:
Legality
The legality of blanket wiretapping has never been sustained in court, but on July 10, 2008 the US Congress capitulated to the administration in granting blanket immunity to the administration and telecom industry for potentially illegal domestic surveillance.
See also
- NSA warrantless surveillance controversy
The NSA warrantless surveillance controversy concerns surveillance of persons within the United States incident to the collection of foreign intelligence by the U.S. National Security Agency as part of the war on terror...
- Information Awareness Office
The Information Awareness Office was established by the Defense Advanced Research Projects Agency in January 2002 to bring together several DARPA projects focused on applying information technology to counter asymmetric threats to national security...
- Communications Assistance For Law Enforcement Act
The Communications Assistance for Law Enforcement Act is a United States wiretapping law passed in 1994, during the presidency of Bill Clinton...
- Hepting v. AT&T
Hepting v. AT&T is a United States class action lawsuit filed in January 2006 by the Electronic Frontier Foundation against the telecommunications company AT&T, in which the EFF alleges that AT&T permitted and assisted the National Security Agency in unlawfully monitoring the communications of...
- Mass surveillance
Mass surveillance is the pervasive surveillance of an entire population, or a substantial fraction thereof.Modern governments today commonly perform mass surveillance of their citizens, explaining that they believe that it is necessary to protect them from dangerous groups such as terrorists,...
- ECHELON
ECHELON is a name used in global media and in popular culture to describe a signals intelligence collection and analysis network operated on behalf of the five signatory states to the UK-USA Security Agreement...
- Project Shamrock
Project SHAMROCK, considered to be the sister project for Project MINARET, was an espionage exercise that involved the accumulation of all telegraphic data entering into or exiting from the United States...
- Telecommunications data retention
In the field of telecommunications, data retention generally refers to the storage of call detail records of telephony and internet traffic and transaction data by governments and commercial organisations...
- Cabinet noir
Cabinet noir was the name given in France to the office where the letters of suspected persons were opened and read by public officials before being forwarded to their destination...
- Room 641A
Room 641A is an alleged intercept facility operated by AT&T for the U.S. National Security Agency, beginning in 2003. Room 641A is located in the SBC Communications building at 611 Folsom Street, San Francisco, three floors of which were occupied by AT&T before SBC purchased AT&T...